Delhi District Court
State vs Kamlesh@Raju on 18 January, 2025
IN THE COURT OF SH. DHIRENDRA RANA
ADDL. SESSIONS JUDGE: SPECIAL JUDGE (NDPS), NORTH
DISTRICT, ROHINI COURTS : DELHI
In the matter of:-
(Sessions Case No. 374/2019)
CNR No. DLNT01-005601-2019
FIR No. 215/2019
Police Station Narela Industrial Area
Charge sheet filed 21/61/85 NDPS Act
Under Section
Charge framed Under 21 NDPS Act
Section
Kamlesh @ Raju @ Babu s/o Sh.
State Vs. Ravinder Prashad r/o H. No. F-220, JJ
Colony, Bawana, New Delhi
Date of institution 17.06.2019
Arguments concluded on 20.12.2024
Judgment Pronounced on 18.01.2025
Decision Convicted
JUDGMENT
BRIEF FACTS
1.1 The accused Kamlesh @ Raju has been sent to face trial for
committing an offence punishable under Section 21 of Narcotic Drugs and
Psychotropic Substances Act, 1985 (hereinafter referred to as ‘NDPS Act‘).
1.2. The facts of the case in brief as per the charge sheet filed by the
prosecution are that the FIR in question was registered on 21.04.2019. Ct.
Vinod and Ct. Vinaypal were on patrolling duty. When they reached near A-
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Block Bus stand JJ colony, they noticed one person was coming from
graveyard side. On seeing the police official that person all of a sudden started
going back with brisk pace and on suspicion Ct. Vinaypal overpowered him.
He revealed his name as Kamlesh @ Raju @ Baba. His cursory search was
done and a polythene bag was recovered from right side pocket of his pants
which was found containing substance looking like smack. Information about
apprehension of accused and recovery of contraband was sent to SHO through
duty officer. On receipt of DD No. 41A, IO ASI Ompal alongwith Ct.
Vishudev reached at the spot i.e., A Block, JJ Colony Bus Stand where they
met Ct. Vinod and Ct. Vinaypal and produced accused Kamlesh @ Raju @
Baba and contraband i.e., smack recovered from the possession of accused. IO
recorded the statement of Ct. Vinod.
1.3 IO also informed ACP Girish Kaushik, who reached at the spot. In
presence of ACP, IO explained the accused about his legal rights and served
notice under section 50 NDPS Act upon him. IO checked the contraband and
it was found smack of about 18.91 grams in weight. IO seized the contraband
and separated two samples of 5 grams each and place them in two separate
plastic boxes and given mark as S1 and S2 to the sample. The remaining
contraband alongwith polythene was kept in another plastic box and given
mark A1. All the boxes were sealed with the seal of OP. IO also filled FSL
form and affixed his seal on the same. The case property was seized and seal
after use was handed over Ct. Vinod Kumar. The rukka was prepared and it
was handed over to Ct. Vishwadev for registration of FIR. He also took the
case property and FSL form alongwith copy of seizure memo and handed it
over to SHO Inspector Arvind. Duty Officer ASI Surya Pratap Singh registered
the FIR. Inspector Arvind affixed his seal and signature on all three parcels and
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mentioned the FIR number on the same. He deposited the case properties in the
malkhana by making relevant entries in register No. 19. After registration of
FIR, Ct. Vishwadev came back at the spot alongwith copy of FIR and original
rukka and handed over the same to IO. IO prepared the site plan at the instance
of Ct. Vinod. He conducted personal search of the accused after arresting him
and recovered Rs. 500/-, one mobile phone make Samsung Duos Black and
notice under section 50 NDPS Act. He also recorded disclosure statement of
the accused and forwarded a report under section 57 NDPS Act to the SHO.
The samples were sent to FSL through Ct. Sanjay. As per FSL report, Exhibit
S1 was found containing ‘Codeine, ‘Acetylcodeine’, ‘6-Monoacetylmorphine’
& ‘Trimethoprim’. After completion of investigation, charge sheet was filed.
CHARGE
2. On the basis of material available on record, vide order dated
03.10.2019 charge u/s 21(b) NDPS Act was framed against the accused to
which he pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
3. Thereafter, prosecution in support of its case have examined 8
witnesses in all.
4. PW1 HC Jaswant being the MHC(M) exhibited entry at serial No.
287/19 in register No. 19 as Ex. PW1/A vide which three sealed parcels were
deposited in malkhana by ASI Ompal on 21.04.2019. He also exhibited RC
No. 138/21/19 as Ex. PW1/B vide which one sealed parcel marked as S1
alongwith relevant documents was sent to FSL through Ct. Sanjay and
acknowledgment received from FSL as Ex. PW1/C.
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RANA
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5.1 PW2 HC Vinod Kumar deposed on the lines of his complaint and
case of the prosecution. He exhibited notice as Ex. PW2/A, seizure memo as
Ex. PW2/B, arrest memo as Ex. PW2/C, personal search memo as Ex. PW2/D,
disclosure statement as Ex. PW2/E was recorded and case property Mark A1
as Ex. P1, sample S2 as Ex. P2, sample S3 as Ex. P3 and notice under section
50 NDPS Act as Ex. PW2/F.
5.2 During cross examination done on behalf of accused, he stated
that Delhi Mother Dairy Booth was at a distance of around 100 meter from the
spot. He stated that there were no residential houses near the place of incident,
however, the same was at distance of around 200-300 meter from the spot. He
stated that he handed over the recovered contraband to the IO ASI Ompal
Singh. He stated that notice under section 50 NDPS Act was served upon the
accused after arrival of ACP. He denied that signatures of accused were
obtained on blank papers and later on same were converted into incriminating
documents.
6.1 PW3 HC Vishadev deposed that he reached at the spot alongwith
IO ASI Ompal and deposed about his role during proceedings which has
already been noted above and not repeated herein for the sake of brevity.
6.2 During cross examination done on behalf of accused, he stated
that Mother Dairy Booth is located at A-Block Bus Stand, JJ Colony, Bawana.
He stated that there was only one shop of tobacco and cigarette near A Block
Bus Stand JJ Colony, Bawana. He admitted that IO did not obtain his signature
on any of the seizure memo or any notice under section 50 NDPS act. He
denied all the suggestions put on behalf of accused.
7. PW4 ASI Surya Pratap Singh, being the duty officer, he exhibited
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FIR as Ex. PW4/A, endorsement on rukka as Ex. PW4/B and certificate under
section 65-B of Indian Evidence Act as Ex. PW4/C.
8. PW5 HC Wazir, being the DD writer, exhibited DD No. 23B in
respect of evening patrolling duty of police officials posted at Beat No. 8, Beat
No. 2, Beat No. 3, 4 and 5, Beat No. 6, Beat No. 7 as Ex. PW5/A.
9.1 PW6 ASI Ompal, being the Ist IO, deposed about the investigation
being carried out by him and on the lines of PW2 HC Vinod and PW3 HC
Vishwadev and fully supported the case of the prosecution.
9.2 He exhibited statement of Ct. Vinod as Ex. PW6/B, site plan as
Ex.PW6/C, copy of report under section 57 NDPS Act regarding recovery of
contraband and arrest of accused to SHO as Ex. PW6/D and personal search
articles of accused i.e., one keypad black colour Samsung Duos mobile and
cash of Rs. 500/- as Ex. P4 (colly).
9.3 During cross examination done on behalf of accused, he admitted
that accused was not able to read notice under section 50 NDPS Act. He denied
that there was a mother dairy near the place of incident. He stated that there
was a kiosk but same was closed on that day. He denied all the suggestions put
on behalf of accused.
10.1 PW7 Inspector Arvind Kumar deposed that on 21.04.2019, he
received an information about the apprehension of accused with contraband
and a request to send IO. He further deposed that he conveyed to duty officer
to send ASI Ompal for investigation and the information was recorded vide
DD No.41A which is Ex. PW7/A.
10.2 He further deposed that at around 03:00 AM, Ct. Vishwadev
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produced three sealed parcels with seal of ‘OP’ before him alongwith carbon
copy of seizure memo and FSL form. He affixed his signature and seal on all
the three parcels and also mentioned the FIR after enquiring the same from the
duty officer. He further deposed that compliance under section 55 NDPS Act
was recorded vide DD No. 11A dated 22.04.2019 which is Ex. PW7/B. He
further deposed that MHC(M) (CP) was called by him in his office and
deposited all the parcels and counter signed register No. 19.
10.3 He further deposed that on 22.04.2019, he forwarded report under
section 57 NDPS Act regarding apprehension of accused and recovery of
contraband to concerned ACP.
11. PW8 Ct. Sanjay, deposited sealed parcel in FSL vide RC No.
135/21/19 and handed over the receipt of the same to MHC(M).
12. No witness has been examined by the State with regard to
exhibition of FSL result, however, FSL result is admissible under section 293
CrPC and no application has been moved on behalf of accused to call this
witness for the purpose of cross examination.
STATEMENT OF ACCUSED UNDER SECTION 313 Cr.P.C
13. After closure of PE, statements of accused was recorded u/s 313
Cr.P.C. on 22.10.2024, wherein he denied all the incriminating evidences put to
him. He stated that he has been falsely implicated in this case and nothing
incriminating substance was recovered from his possession and case property
was falsely planted upon him.
He opted not to lead defence evidence.
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DHIRENDRA RANA
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14. Thereafter, matter was fixed for final arguments.
15. I have heard Dr. Raj Rani, Ld. Addl. PP for State and Sh. S. P.
Sharma, Ld. counsel for accused.
ARGUMENTS ON BEHALF OF STATE
16. The Ld. Addl PP for the State argued that accused was found in
possession of 18.91 grams smack and he was apprehended by PW2 HC Vinod
alongwith Ct. Vinaypal. All these witnesses have deposed without any
confusion about the manner in which recovery was affected from the accused
and proceedings were carried out by PW6 ASI Ompal. Prosecution has proved
the fact that all the necessary compliance have been done by PW6 ASI Ompal.
IO sent the information to the SHO by sending the case property alongwith
FSL form through Ct. Vishwadev. SHO affixed his seal and signature on the
samples in compliance of section 55 NDPS Act. After arrest of accused, IO
also sent an information as per section 57 NDPS Act. Prosecution has proved
all these documents during trial. Moreover, accused has failed to rebut the
presumption against him enshrined under section 35 NDPS Act.
ARGUMENTS ON BEHALF OF ACCUSED
17.1 On the other hand, Ld. Counsel for accused has forcefully argued
that accused deserves to be acquitted in the instant matter. It is argued that not
only the notice under Section 50 of the NDPS Act is required to be served
upon the accused before making his search but it is also obligatory on the part
of the IO to inform the accused of his rights under Section 50 of the NDPS
Act. It is admitted by the IO that accused was not able to read Hindi and
moreover, notice was served upon the accused after alleged recovery of
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contraband. It is submitted that although the prosecution witnesses have
claimed that the accused was intimated of his rights but oral intimation is not
sufficient compliance of Section 50 of NDPS Act. It is further submitted that
IO has also not made any prior preparation to ensure the presence of any
Gazetted officer or Magistrate at the spot before conducting the search of the
accused.
17.2 It is further submitted that accused deserves to be acquitted for
non-compliance of Section 52A of the NDPS Act. It is submitted that it was
mandatory for the investigating officer to have drawn samples, in accordance
with Section 52 A, in the presence of Magistrate only, whereas admittedly the
samples were drawn at the spot itself and not in the presence of any
Magistrate. It was also argued that no public witness was joined by the IO
despite their availability. Last but not the least argument put forth is that the
alleged recovered substance was not tested in any field testing kit then how
come Ct. Vinod and Ct. Vinaypal came to the conclusion that it was smack.
The testimonies of the police official are suffering from various contradictions
which are sufficient enough to dismantle the case of the prosecution. Hence, it
is prayed that accused may be acquitted by giving benefit of doubt of the case.
REASONS FOR THE DECISION
18. Section 21 of NDPS Act is reproduced below for ready reference:-
“21. Punishment for contravention in relation to manufactured
drugs and preparations-Whoever, in contravention of any
provision of this Act or any rule or order made or condition of
license granted thereunder, manufactures, possesses, sells,
purchases, transports, imports inter-State, exports inter-State or
uses any manufactured drug or any preparation containing any
manufactured drug shall be punishable-
(a) where the contravention involves small quantity, with rigorous
imprisonment for a term which may extend to [one year], or with
fine which may extend to ten thousand rupees, or with both;
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(b) where the contravention involves quantity, lesser than
commercial quantity but greater than small quantity, with rigorous
imprisonment for a term which may extend to ten years and with
fine which may extend to one lakh rupees;
(c)where the contravention involves commercial quantity, with
rigorous imprisonment for a term which shall not be less than ten
years but which may extend to twenty years and shall also be
liable to fine which shall not be less than one lakh rupees but
which may extend to two lakh rupees:
Provided that the court may, for reasons to be recorded in the
judgment, impose a fine exceeding two lakh rupees.”
Perusal of Section 21 (b) of NDPS Act would reveal that
‘possession’ of intermediate quantity of smack (‘Codeine, ‘Acetylcodeine’, ‘6-
Monoacetylmorphine’ & ‘Trimethoprim’) is punishable under Section 21(b) of
said Act.
APPRECIATION OF EVIDENCE:
19.1 Hon’ble Apex Court has time and again reaffirmed as to how
courts need to appreciate the evidence adduced by the parties. In ‘Bhagwan
Tana Patil Vs. state of Maharashtra, AIR 1974 SC 21’ , the apex court ordained
that the function of the court is to disengage the truth from the falsehood and to
accept what it finds the truth and reject the rest. It is only where the truth and
falsehood are inextricably mixed up, polluted beyond refinement down the
core, the entire fabric of the narration given by a witness then the court might
be justified in rejecting the same. This legal position was further elaborated in
‘State of UP Vs. Shankar, AIR 1981 SC 897′ , wherein the Apex court observed
that mere fact that the witness has not told the truth in regard to a peripheral
matter would not justify whole sole rejection of his evidence. In this country, it
is rare to come across the testimony of a witness which does not have a fringe
or an embroidery of untruth although his evidence may be true in the main. It
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is only where the testimony is tainted to the core, the falsehood and the truth
being inextricably intertwined, that the court should discard the evidence.
Therefore, the duty is cast over this court to dispassionately disengage the truth
from the falsehood and accept the truth and reject the same. This court is not
meant to reject the testimony of a witness on slightest deflection, however has
a bounden duty to search the truth.
19.2 In “Dalbir Singh and Ors. Vs. State of Punjab, AIR 1987 SC
1328″, it was held that no hard and fast rule can be laid down about the
appreciation of evidence and every case has to be judged on the basis of its
own facts. While appreciating the evidence of the witness, the approach must
be whether the evidence of a witness read as a whole, appears to have ring of
truth or not. Once that impression is formed, it is undoubtedly, necessary for
the court to scrutinize the evidence more particularly, keeping in view the
deficiencies, drawbacks and infirmities pointed out in the evidence as a whole,
and evaluate them to find out whether it is against the general tenor of
evidence given by the witness as to render it unworthy of belief.
19.3 The Hon’ble Apex court reiterated the manner of appreciation of
evidence in case titled “Gangadhar Behera & Ors. Vs. State of Orissa (2002) 8
SCC 381″, held that the principle falsus in uno falsus in omnimus is not
applicable in India and it is only a rule of caution. Even if major portion of the
evidence is found to be deficient, in case residue is sufficient to prove the guilt
of the accused, the conviction can be maintained. It is the duty of the court to
separate the grain from chaff. Hon’ble Apex Court in State of UP Vs. M.K.
Anthony 1985 (1) SCC 505 held that while appreciating the evidence of a
witness, the approach must be whether the evidence of the witness read as a
whole appears to have a ring of truth. Once that impression is formed, it is
undoubtedly necessary for the court to scrutinize the evidence more
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particularly keeping in view the deficiencies, draw-backs and infirmities
pointed out in the evidence as a whole and evaluate them to find out whether it
is against the general tenor of the evidence given by the witness and whether
the earlier evaluation of the evidence is shaken as to render it unworthy of
belief. Minor discrepancies on trivial matters not touching the core of the case,
hyper-technical approach by taking sentences torn out of context here or there
from the evidence, attaching importance to some technical error committed by
the investigating officer not going to the root of the matter would not ordinarily
permit rejection of the evidence as a whole. Further, Hon’ble Apex court in
‘Smt. Shamim Vs. State, Crl. Appeal No. 56/2016 dated 19.09.2018′, in para 12
observed
“while appreciating the evidence of a witness, the approach must be
whether the evidence of the witness read as a whole inspires confidence.
Once that impression is formed. It is undoubtedly necessary for the court
to scrutinise the evidence more particularly keeping in view the
deficiencies, drawbacks and infirmities pointed out in the evidence as a
whole and evaluate them to find out whether it is against the general
tenor of the evidence and whether the earlier evaluation of the evidence
is shaken as to render it unworthy of belief. Minor discrepancies on
trivial matters not touching the core of the case, hypertechnical approach
by taking sentences torn out of context here or there from the evidence,
attaching importance to some technical error without going to the root of
the matter would not ordinarily permit rejection of the evidence as a
whole. Minor omissions in the police statements are never considered to
be fatal. The statements given by the witnesses before the police are
meant to be brief statements and could not take place of evidence in the
court. Small/trivial omissions would not justify a finding by court that the
witnesses concerned are liars. The prosecution evidence may suffer from
inconsistencies here and discrepancies there, but that is a shortcoming
from which no criminal case is free. The main thing to be seen is whether
those inconsistencies go to the root of the matter or pertain to
insignificant aspects thereof…….”.
19.4 As far as the defective and illegal investigation is concerned, apex
court held that if investigation is illegal or suspicious, the rest of the evidence
must be scrutinized independent of faulty investigation otherwise criminal trial
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descend to the IO ruling the roost. Yet if the court is convinced that the
evidence of eye witnesses is true, it is free to act upon such evidence though
the role of the IO in the case is suspicious ( Abu Thakir, AIR 2010 SC 2119).
An accused cannot be acquitted on the sole ground of defective investigation;
to do so would be playing into the hands of the IO whose investigation was
defective by design. (Dhanaj Singh Vs. State of Punjab AIR 2004 SC 1920).
Mere defective investigation cannot vitiate the trial ( Paramjit Singh Vs. State
of Punjab AIR 2008 SC 441). The lapses or the irregularities in the
investigation could be ignored only if despite their existence, the evidence on
record bears out the case of the prosecution and evidence is of sterling quality.
If the lapses or irregularities do not go the root of the matter, if they do not
dislodge the substratum of the prosecution case, they can be ignored (Sunil
Kundu & Anr. Vs. State of Jharkhand, 2013(4) SCC 422).
19.5 Evidently, the binding judicial pronouncements casts a duty upon
the Trial Court to cull out the nuggets of truth from the evidence available on
record. To sum up, while appreciating evidence on record the duty of the court
is to separate credible and incredible part of evidence.
19.6 Having noted the general principles of appreciation of evidence,
let us now examine the material available on record to seek an answer to
determine the issue of guilt of accused.
COMPLIANCE OF SECTION 50 NDPS ACT
20.1 Ld. Defence Counsel has forcefully argued that the notice was
served upon the accused after the allegedly recovery of contraband whereas it
ought to have been served prior to the recovery. While serving the notice after
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recovery of contraband, IO had committed a serious error and it is under
suspicion whether notice was duly served upon the accused or not. Compliance
of section 50 NDPS Act is mandatory in nature and in case IO fails to comply
the same, benefit of the same must go to the accused.
20.2 In my considered opinion, the law merely requires the accused to
be informed of his right under Section 50 NDPS Act but the information may
not be necessarily in writing. I am fortified in my opinion by the observations
of the Hon’ble Apex Court in the matter of Vijaysinh Chanduba Jadeja Vs State
of Gujarat: Crl Appeal No. 943 of 2005 with Crl Appeal No. 974 of 2003 and
Crl Appeal No.1809 of 2009 date of judgment 29.10.2010 wherein it has been
observed herein as under:-
“17. In the above background, we shall now advert to the
controversy at hand. For this purpose, it would be necessary to
recapitulate the conclusions, arrived at by the Constitution Bench
in Baldev Singh‘s Case(Supra). We are concerned with the
following conclusions: “57. (1) That when an empowered officer
or a duly authorised officer acting on prior information is about to
search a person, it is imperative for him to inform the person
concerned of his right under Sub-Section (1) of Section 50 of
being taken to the nearest Gazetted Officer or the nearest
Magistrate for making the search. However, such information may
not necessarily be in writing.” (Emphasis supplied).
20.3 In the present case, accused was apprehended by PW2 HC Vinod
Kumar and Ct. Vinaypal on the basis of suspicion when these police officials
were on duty. There was no secret information with these officials that accused
is involved in transportation of contraband. Due to his suspicious conduct,
accused was arrested and recovery was effected from his possession.
Therefore, it is a case of chance recovery and prior to recovery of contraband,
police officials had no knowledge that accused was carrying any contraband
and hence, section 50 was not in contemplation by that time.
20.4 Subsequently, IO PW6 ASI Ompal informed the accused about his
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legal rights that his further search was to be conducted and prior to that search,
he had the option to get himself searched in presence of Gazetted officer or a
Magistrate. Notice under section 50 was prepared and was duly served upon
the accused which is Ex. PW2/F. Accused opted not to get himself searched
before a Gazetted Officer and gave his refusal on the notice itself. Thereafter,
personal search of the accused was conducted by the IO but no further
contraband was recovered. Therefore, in the present case significant
compliance has been done by the IO by serving notice under section 50 NDPS
Act that too in writing. Moreover, notice was served upon the accused in the
presence of ACP Girish Kaushik and his personal search was also conducted in
his presence. The carbon copy of the notice which is Ex. PW2/A on which
accused had received the notice is duly signed by ACP Girish Kaushik. I do not
find any merit I the argument of Ld. Counsel that any illegality was committed
by PW2 HC Vinod Kumar and Ct. Vinaypal by not serving the notice under
section 50 NDPS Act upon the accused prior to the recovery.
NON-COMPLIANCE OF SECTION 52A OF NDPS ACT:-
21.1 It is submitted by Ld. Defence Counsel that accused deserves to
be acquitted for non-compliance of Section 52A of the NDPS Act. It is
contended that it was mandatory for the investigating officer to have drawn
samples, in accordance with Section 52A, in the presence of Magistrate,
whereas admittedly the samples were drawn at the spot itself and not in the
presence of any Magistrate. It is submitted that samples in fact were drawn in
stark violation of standing order no.1/89 dated 13.06.1989, issued under
Section 52A of the NDPS Act by Department of Revenue.
21.2 The issue raised qua non compliance of section 52A by the IO, has
been discussed time and again by Hon’ble Supreme Court in case titled as
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Simranjeet Singh v. State of Punjab, Criminal appeal No. 1443 of 2023,decided
on 09.05.2023. In this case, samples were drawn by the IO at the spot and not
before the magistrate and benefit of the same was given to the accused but
there is a development in this regard. While hearing an appeal titled as
Narcotics Control Bureau Vs. Kashif, Criminal Appeal No. 544 of 2024
decided on 20.12.2024, Hon’ble Apex Court held as under:
24. Section 52A was inserted only for the purpose of early disposal of the
seized contraband drugs and substances, considering the hazardous nature,
vulnerability to theft, constraint of proper storage space etc. There cannot
be any two opinions on the issue about the early disposal of the
contraband drugs and substances, more particularly when it was inserted
to implement the provisions of International Convention on the Narcotics
Drugs and Psychotropic Substances, however delayed compliance or non-
compliance of the said provision by the concerned officer authorised to
make application to the Magistrate could never be treated as an illegality
which would entitle the accused to be released on bail or claim acquittal in
the trial, when sufficient material is collected by the Investigating Officer
to establish that the Search and Seizure of the contraband substance was
made in due compliance of the mandatory provisions of the Act.
xxxxx
31. From the above decisions, the position that emerges is that this Court
in catena of decisions, has approved the procedure of spot searches and
seizures in compliance with the Standing Orders and the Notifications
issued by the NCB and the Central Government, and upheld the
convictions on being satisfied about the search and seizure made by the
officers as per the provisions of the Act and being satisfied about the
scientific evidence of F.S.L. reports etc. Even otherwise, in view of the
law laid down by the Constitution Benches in case of Pooran Mal and in
case of Baldev Singh, any procedural illegality in conducting the search
and seizure by itself, would not make the entire evidence collected thereby
inadmissible. The Court would have to decide the admissibility of
evidence in the context and the manner in which the evidence was
collected and was sought to be used during the course of trial. The
evidence collected during the course of investigation in legal and proper
manner and sought to be used in the course of trial with regard to the
seized contraband substance could not be simply brushed aside, on the
ground of procedural irregularity if any, committed by the concerned
officer authorised in making application to the Magistrate as contemplated
under Section 52A of the Act.
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DHIRENDRA by DHIRENDRA
RANA
RANA Date: 2025.01.18
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32. Significantly, the Authorised Officer can make the application under
sub- section (2) of Section 52A for three purposes – (a) for certifying the
correctness of the inventory prepared by him; or (b) taking in presence of
such magistrate, photographs of the seized drugs, substances and
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. The use of the conjunction “OR” made in between the three
purposes mentioned therein, itself makes it explicitly clear that the
purposes for which the application could be made under sub-section (2)
are alternative and not cumulative in nature. Such provision specifying
multiple alternative purposes could not be construed as a mandatory
provision muchless its non-compliance fatal to the case of prosecution.
xxxxx
35. None of the provisions in the Act prohibits sample to be taken on the
spot at the time of seizure, much less Section 52A of the said Act. On the
contrary, as per the procedure laid down in the Standing Orders and
Notifications issued by the NCB and the Central Government before and
after the insertion of Section 52A till the Rules of 2022 were framed, the
concerned officer was required to take samples of the seized contraband
substances on the spot of recovery in duplicate in presence of the Panch
witnesses and the person in whose possession the drug or substance
recovered, by drawing a Panchnama. It was only with regard to the
remnant substance, the procedure for disposal of the said substance was
required to be followed as prescribed in Section 52A.”
21.3 Therefore, it has been categorically held by Hon’ble Supreme
Court that drawing of samples by the IO at the spot may be an irregularity and
not an illegality. The accused cannot be given benefit merely on the fact that
samples were drawn by the IO at the spot. The court has to see the other
circumstances as well. While deliberating over section 52A Hon’ble Apex
court also dealt with its earlier judgments. The court further held as under:
36. At this stage, we must deal with the recent judgments in case of
Simarnjit vs. State of Punjab, (Criminal Appeal No.1443/2023), in case of
Yusuf @ Asif vs. State (2023 SCC Online SC 1328), and in case of
Mohammed Khalid and Another vs. State of Telangana ((2024) 5 SCC
393) in which the convictions have been set aside by this Court on finding
non-compliance of Section 52A and relying upon the observations made
in case of Mohanlal. Apart from the fact that the said cases have beenSC No. 374/2019 FIR No. 215/2019 State Vs. Kamlesh @ Raju Page No. 16 of 22
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DHIRENDRA RANA
RANA Date:
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decided on the facts of each case, none of the judgments has proposed to
lay down any law either with regard to Section 52A or on the issue of
admissibility of any other evidence collected during the course of trial
under the NDPS Act. Therefore, we have considered the legislative history
of Section 52A and other Statutory Standing Orders as also the judicial
pronouncements, which clearly lead to an inevitable conclusion that
delayed compliance or non- compliance of Section 52A neither vitiates the
trial affecting conviction nor can be a sole ground to seek bail. In our
opinion, the decisions of Constitution Benches in case of Pooran Mal and
Baldev Singh must take precedence over any observations made in the
judgments made by the benches of lesser strength, which are made
without considering the scheme, purport and object of the Act and also
without considering the binding precedents.
xxxxx
39. The upshot of the above discussion may be summarized as under:
(i) ….
(ii) …..
(iii) The purpose of insertion of Section 52A laying down the procedure
for disposal of seized Narcotic Drugs and Psychotropic Substances, was to
ensure the early disposal of the seized contraband drugs and substances. It
was inserted in 1989 as one of the measures to implement and to give
effect to the International Conventions on the Narcotic drugs and
psychotropic substances.
(iv) Sub-section (2) of Section 52A lays down the procedure as
contemplated in sub-section (1) thereof, and any lapse or delayed
compliance thereof would be merely a procedural irregularity which
would neither entitle the accused to be released on bail nor would vitiate
the trial on that ground alone.
(v) Any procedural irregularity or illegality found to have been committed
in conducting the search and seizure during the course of investigation or
thereafter, would by itself not make the entire evidence collected during
the course of investigation, inadmissible. The Court would have to
consider all the circumstances and find out whether any serious prejudice
has been caused to the accused.
(vi) Any lapse or delay in compliance of Section 52A by itself would
neither vitiate the trial nor would entitle the accused to be released on bail.
The Court will have to consider other circumstances and the other primary
evidence collected during the course of investigation, as also the statutory
presumption permissible under Section 54 of the NDPS Act.”
21.4 It is not the mandate of law that the samples can only be drawn in
the presence of a Magistrate and not otherwise. Further, in the case at hand, I
am of the considered opinion that once the prosecution has conclusively
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by DHIRENDRA
DHIRENDRA RANA
RANA Date:
2025.01.18
17:01:19 +0530
established that the processual sanctity of seizing the contraband and its safe
transit to the FSL has not been compromised then under such circumstances
peripheral issues viz keeping the samples in small plastic boxes would not go
to the root of the matter and the contention is found to be meritless. Thus, I
cannot but disagree with the Ld. Counsel for the accused that the recovery in
the instant matter has been effected in violation of Section 52A of NDPS Act
or standing order no.1/89.
21.5 Since, in Kashif’s case (discussed supra), Hon’ble Apex Court has
dealt with Simarjeet’s case (discussed supra) and thereafter, held that drawing
of samples at the spot by the IO is not itself an illegality. The court has to see
the other evidence as well. Delayed or non compliance of section 52A NDPS
Act cannot be treated as fatal to the case of the prosecution. Therefore, in view
of recent view of Hon’ble Supreme Court in Kashif’s case (discussed supra),
the arguments of Ld. Defence counsel qua non compliance of section 52 A
NDPS Act holds no water and accordingly stands rejected.
NATURE OF RECOVERED SUBSTANCE:-
22.1 It is argued on behalf of accused that how come PW2 HC Vinod
Kumar and Ct. Vinaypal came to know that alleged substance recovered from
the possession of accused was smack as they never tested the same in the field
testing kit. By raising this issue, Ld. Counsel is pointing towards scope of
tampering and manipulation with case property.
22.2 PW1 HC Jaswant has testified that on 21.04.2019, three sealed
parcels with the seal of ‘OP’ were deposited in malkhana byPW6 ASI Ompal
and entry at serial No. 287 in register No. 19 was made. On 17.05.2019, he had
handed over sealed parcel marked as Mark S1 along with relevant documents
to PW8 Ct. Sanjay for depositing the same with FSL Rohini. PW8 Ct. Sanjay
SC No. 374/2019 FIR No. 215/2019 State Vs. Kamlesh @ Raju Page No. 18 of 22
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DHIRENDRA by DHIRENDRA
RANA
RANA Date: 2025.01.18
17:01:24 +0530
has testified that he deposited the same in FSL, Rohini vide RC No. 135/21/19
which is Ex. PW1/B and he also handed over the copy of acknowledgment to
the MHC(M) which is Ex. PW1/C. PW8 Ct. Sanjay categorically testified that
the case property remained in his possession while the seals were intact and the
same were not tempered with.
22.3 The report of Dr. Kavita Goel, Assistant Director (Chemistry) FSL
Rohini dated 23.08.2019 clinches the issue. It is categorically mentioned in the
report that on 17.05.2019, Dr. Kavita Goel received parcel S1 sealed with the
seal of ‘OP’ and ‘AK’. It is further mentioned in the report that upon the
examination of sample, it was found to be containing ‘Codeine,
‘Acetylcodeine’, ‘6-Monoacetylmorphine’ & ‘Trimethoprim’. She sealed the
remnant with her seal of KGFSL DELHI and sent back the same to the police
station. Mark S1 (sample examined by the expert) was produced before the
court in sealed condition during the testimony of PW2. Therefore, right from
the seizure and till the case property was produced before the court, all seals
used by the police official and FSL expert were found to be intact. Mark A1
has been exhibited as Ex. P1, Mark S2 has been exhibited as Ex. P2 and Mark
S1 has been exhibited as Ex. P3.
22.4 The argument qua non use of field testing kit could have been
relevant, if there was any chance of tampering with the case property or seal.
The fact of the matter is whether substance recovered from the possession of
accused was contraband or not, stands proved by the report of FSL expert.
Although, report has not been proved by the prosecution by examining the
chemical expert but this report is admissible in evidence by virtue of section
293 CrPC. Moreover, this is not a defence of the accused that report of Dr.
Kavita Goel is false and fabricated and no application is moved to call the
witness for the purpose of cross examination.
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DHIRENDRA by DHIRENDRA
RANA
RANA Date: 2025.01.18
17:01:29 +0530
22.5 Ld. Defence Counsel has failed to point out any material
inconsistency in the testimony of prosecution witnesses or any processual
infirmity in the process of sealing, seizure or deposit of the contraband in the
FSL laboratory. Therefore, non use of field testing kit at the spot is not more
than an irregularity which does not go to the roots of the case.
RECOVERY OF CONTRABAND ARTICLE:-
23.1 The case of the prosecution hangs upon the testimony of star
witnesses PW2 HC Vinod Kumar, PW3 Ct. Vishwadev and PW6 ASI Ompal.
PW2 HC Vinod Kumar was accompanied by Ct. Vinaypal but he has been
dropped by the prosecution as his testimony was repetitive in nature. PW2 HC
Vinod Kumar has fully supported the case of the prosecution to prove the fact
that accused Kamlesh was found in possession of smack which was weighed
and found to be 18.91 grams. The testimony of PW2 HC Vinod Kumar is
further corroborated by the testimony of PW3 Ct. Vishwadev and PW6 ASI
Ompal and they have categorically testified that on the fateful day, accused
was apprehended with a polythene containing smack. Star witnesses of the
prosecution are cogent, consistent and credit worthy. The defence has failed to
shake the credibility of the star witnesses despite a grueling cross examination
of the witnesses.
23.2 The defence has also failed to point out any infirmity or any major
inconsistency in the version of the prosecution witnesses so as to cast any
reasonable shadow of doubt upon the prosecution version.
MINOR INCONSISTENCIES, INFIRMITIES, DISCREPANCIES IN THE
PROSECUTION CASE:-
24.1 It is further pointed out that there is no seal handing over/ taking
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by DHIRENDRA
DHIRENDRA RANA
RANA Date: 2025.01.18
17:01:34 +0530
over memo proved on record.
24.2 Admittedly, it was desirable for the prosecution to prove on record
the seal handing over/taking over memo. However, once it is established on
record that the purity of the process has not been compromised then the
defence cannot claim to have earn some brownie points on account of the
lapses of the investigating officer. Reliance is placed upon C. Muniappan &
Ors. Vs. State of Tamil Nadu 2010 (10) SCC 567 and Sardul Singh Vs. State of
Haryana in (2002) 8 SCC 372.
CONCLUSION
25.1 The testimony of PW2 HC Vinod, PW3 Ct. Vishwadev and PW6
ASI Ompal coupled with the unimpeached FSL Result conclusively establishes
on record that on 21.04.2019, accused was found in possession of intermediate
quantity of smack. Necessary compliance under section 50 NDPS Act was
done by PW6 ASI Ompal by serving a notice upon the accused. After seizure
of case property, samples were extracted at the spot and were sent to PW7
Inspector Arvind Kumar. PW7 Inspector Arvind Kumar sealed the three
pullandas of the case property in compliance of section 55 NDPS Act. After
registration of FIR, accused was arrested and PW6 ASI Ompal sent a report to
the SHO in compliance of section 57 NDPS Act. The samples as well as the
remaining case property have been duly proved during the trial. The chain of
sequence of events is complete and there is no visible defect in the
investigation pointed out by the defence. Needless to say, presumption under
section 35 NDPS Act is in force against the accused and it was his duty to
rebut the same but he has failed to do so.
25.2 Reliance is placed upon the judgment of Hon’ble Delhi High
Court in the matter of Kanwar Pal @ Mama Vs State: 2017 CrLJ 2124(Del).
SC No. 374/2019 FIR No. 215/2019 State Vs. Kamlesh @ Raju Page No. 21 of 22
PS Narela Industrial Area
Digitally signed
by DHIRENDRA
DHIRENDRA RANA
RANA Date:
2025.01.18
17:01:38 +0530
25.3 In the given facts and circumstances and considering the evidence,
accused Kamlesh @ Raju is held guilty and is convicted for the offence
punishable under section 21(b) of the NDPS Act. Ordered accordingly.
Digitally signed by DHIRENDRA DHIRENDRA RANA RANA Date: 2025.01.18 17:01:43 +0530 Announced in the open court (Dhirendra Rana) on 18.01.2025 ASJ / Special Judge (NDPS) (running in 22 pages) North:Rohini:Delhi SC No. 374/2019 FIR No. 215/2019 State Vs. Kamlesh @ Raju Page No. 22 of 22 PS Narela Industrial Area
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