Delhi District Court
State vs Rohit on 19 April, 2025
DLSH010006842015 Page 1 of 57
SC No.155/16
State Vs. Rohit
FIR No.175/13, PS Farsh Bazaar
U/s.482 IPC, U/s.8(c)/20/29 NDPS Act
IN THE COURT OF SPECIAL JUDGE (NDPS), SHAHDARA,
KARKARDOOMA COURTS, DELHI
SC No.155/16
State Vs. Rohit
FIR No.175/13
U/s.482 IPC, U/s.8(c)/20/29 NDPS Act
In the matter of :-
State
(through Sh. Jitendra Sharma, Addl. PP)
Vs.
Rohit
S/o. Sh. Mahander
R/o. 28/44A, Kasturba Nagar,
Delhi
....accused
(Sh. Mukesh Kumar, Advocate)
Date of institution : 06.06.2015
Date when judgment reserved : 19.4.2025
Date of Judgment : 19.4.2025
Final decision : Accused acquitted.
::JUDGMENT:
:
1. Accused Rohit is before the Court facing charge under Sections 482 IPC
and 8(c)/20/29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in
short “the NDPS Act“) as it is alleged that 1.226 Kg Charas / Hashish (in a dark
gray backpack / Pitthu bag having ‘Sports Antler’ badge over it) was recovered
from the possession of CCL ‘S @ S’ (complete name withheld) on 28.04.2013
at about 06.10 a.m., at Karkari Road, 60 Feet Road, in front of HDFC Bank,
Vishwas Nagar, Shahdara, Delhi, while accused Rohit was pillion rider on
motorcycle, bearing fake number plate of DL3S-BC-9690, being driven by the
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State Vs. Rohit
FIR No.175/13, PS Farsh Bazaar
U/s.482 IPC, U/s.8(c)/20/29 NDPS Actaforesaid CCL. However, accused Rohit fled away from the spot and was
apprehended later on.
2. In view of alleged recovery of 1.226 Kg Charas / Hashish from the
possession of CCL and accused Rohit, FIR No.175/13 was lodged at PS Farsh
Bazaar on 28.04.2013. During the course of investigation, accused Rohit was
arrested on 29.05.2013. After completion of investigation, charge-sheet was
filed more than two years later on 06.06.2015. Charge was framed on
27.04.2016 for offence u/s.482 IPC and u/s 8(c)/20/29 NDPS Act, which reads
as under :
“That on 28.04.2013 at about 06.10 a.m., at Karkari Road, 60 Feet Road, in front of
HDFC Bank, Vishwas Nagar Shahdara, Delhi, within the jurisdiction of PS Farsh
Bazar, Delhi, you alongwith your co-accused Sajan @ Sunny (JCL) in furtherance of
your criminal conspiracy, were going on a motorcycle by displaying the number plate
of fake number DL3SBC 9690 while its actual registration no. was DL3SBC 9756,
carrying contraband substance i.e. Hashish, weighing 1.226 kgs without any permit or
license and thereby you committed offences punishable u/s 482 IPC and 8(c)/20/29
NDPS Act and within my cognizance.”
3. To prove the aforesaid charge, the prosecution examined 12 witnesses.
The details of the said witnesses along with the documents that they exhibited
during their deposition is mentioned hereinbelow in tabular form:-
Sl. No. Name of witness Documents Description
exhibited
PW1 WSI Veera Sharma Ex. PW1/A Copy of FIR
(Duty Officer)
Ex. PW1/B Endorsement on rukka
PW2 WHC Anita (Police Ex. PW2/A PCR Form
Control Room)
PW3 HC Tejpal Ex. PW3/A Arrest Memo
(apprehended CCL at
Ex. PW3/B Personal search memo
the spot) (prime
witness)
PW4 SI Jaibir Singh
(IO filed charge-sheet)
PW5 Manmohan Ex. PW5/A Copy of Form - 20
(Record Keeper, RTO
Ex. PW5/B Copy of RC
Sheikh Sarai)
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State Vs. Rohit
FIR No.175/13, PS Farsh Bazaar
U/s.482 IPC, U/s.8(c)/20/29 NDPS Act
PW6 SI Vipin Kumar Ex. PW6/A Copy of notice u/s.50 NDPS Act
(First IO)
Ex. PW6/B Seizure memo of case property
Ex. PW6/C Seizure memo of fake number plate and
motorcycle make Apache
Ex. PW6/D Tehrir
Ex. PW6/E Original notice u/s.50 NDPS Act
Ex.PW6/Article-1 Sample of contraband
Ex.PW6/Article-2 Sample of contraband
Ex.PW6/Article-3 Contraband / case property
PW7 HC Irfan
(accompanied 1st IO SI
Vipin Kumar)
PW8 SI Uttam Chand Ex. PW8/A Copy of RC No.42/21/13
(witness of depositing
Ex. PW8/B Acknowledgment of FSL
case property at FSL)
PW9 SI Arvind (2nd IO) Ex. PW9/A Site plan
Ex. PW9/B Arrest memo
Ex. PW9/C Personal search memo
Ex. PW9/D Disclosure statement of accused
Mark 9A Copy of report u/s.57 NDPS Act
PW10 Insp.Prabhu Dayal
(SHO PS Farsh
Bazaar)
PW11 ASI Suneet Kumar Ex. PW11/A Notice u/s.57 NDPS Act
(Reader to ACP Vivek
Ex. PW11/1 DD entry regarding destruction of Diary
Vihar)
Register
PW12 ASI Sunil Dutt Ex. PW12/A Entry No.1159 in register no.19
(MHCM)
PW13 Amit Sharma (ACP)
Documents admitted on Ex. A1 FSL result dated 16.07.2013 prepared by Dr.
06.10.2017 Kanak Lata Verma
4. After examining the testimony of the witnesses mentioned in the table
above, it is found that they gave evidence about the following facts for the
prosecution: –
4.1. On 28.04.2013, PW3 HC Tejpal was on duty at Anti Snatching Picket on
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FIR No.175/13, PS Farsh Bazaar
U/s.482 IPC, U/s.8(c)/20/29 NDPS Act60 foota Bank, near HDFC Bank, Vishwas Nagar, Delhi, and at about 6.15
p.m., he saw accused Rohit coming on a motorcycle alongwith one another
person, who was driving the motorcycle bearing no. DL3S-BC-9693. When
he signalled them to stop by waiving his hand, the motorcycle was stopped,
but accused Rohit managed to escape from the spot, whereas CCL (S @ S)
(complete name withheld) was apprehended by PW3. In the meantime PW7
HC Irfan alongwith PW6 SI Vipin came at the spot and interrogated the
CCL, who disclosed his name as S @ S.
4.2. The CCL was carrying a bag of dark gray colour on his shoulder, having a
batch of ‘Sports Antler’. The bag was opened by PW6 and from inside it,
one black polythene was recovered containing two packets wrapped with
tape and upon opening the said polythene, solid substance was found therein,
which upon smelling seemed to be Charas. PW6 sent PW7 to PS to bring
field testing kit and electronic weighing machine.
4.3. In the meanwhile, PW6 prepared notice u/s.50 NDPS Act alongwith
carbon copy of the same and the CCL was explained about his right to be
searched by gazetted officer or magistrate or to be taken to a gazetted officer
or a magistrate for his search or to conduct the search of the members of the
police party before his search is conducted. However, the CCL refused to
avail his legal rights. The original notice u/s.50 NDPS Act is Ex. PW6/E and
the carbon copy containing the refusal of CCL is Ex. PW6/A.
4.4. Thereafter, personal search of the CCL was conducted and no further
contraband was recovered from his personal search. The contraband
recovered from the bag carried by the CCL was tested with field testing kit
and was found to be positive for Hashish.
4.5. The contraband was weighed and found to be 1.226 Kg, out of which two
samples of 25 gms each were drawn and kept in two separate polythenes,
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State Vs. Rohit
FIR No.175/13, PS Farsh Bazaar
U/s.482 IPC, U/s.8(c)/20/29 NDPS Actmarked as Mark A1 and A2. The remaining contraband / Hashish was kept
back in the same polythene and kept in the Pitthu and converted into pulanda
Mark A. The samples Mark A1 and A2 and remaining contraband in pulanda
Mark A were sealed with the seal of VKY by PW6 SI Vipin Kumar. Seal
thereafter was handed over to PW3 Ct. Tejpal. Seizure memo Ex. PW6/B in
this regard was prepared. The aforesaid motorcycle was also seized vide
memo Ex. PW6/C.
4.6. PW6 prepared Tehrir Ex. PW6/D and handed over the same to PW7 for
the registration of FIR. PW6 also handed over to PW7 the three pullandas
Mark A, A1 and A2 as well as FSL Form and copy of seizure memo to be
handed over to SHO.
4.7. PW7 alongwith the aforesaid articles went to PS Farsh Bazaar, where he
handed over the rukka to Duty Officer PW1 WSI Veera Sharma, who
recorded FIR Ex. PW1/A and made endorsement on the rukka Ex. PW1/B
regarding registration of FIR.
4.8. PW7 handed over the case property, copy of seizure memo and FSL Form
to PW10 Insp. Prabhu Dayal SHO PS Farsh Bazaar, who found the three
parcels sealed with the seal of VKY and he placed his seal of PDS on each of
the parcels. He also mentioned the FIR number on the parcels as well as FSL
Form and copy of seizure memo and handed over the case property to PW12
ASI Sunil Dutt (MHCM) for depositing the same in the Malkhana.
4.9. PW12 ASI Sunil Dutt MHCM upon receiving the case property and
seizure memo, deposited the pullandas in the Malkhana vide entry in
Register No.19 at sl. no.1159 Ex. PW12/A.
4.10. After registration of FIR, the investigation was marked to PW9 SI Arvind,
who reached at the spot. PW7 also reached at the spot alongwith copy of FIR
and original rukka which he handed over to PW9. At the spot, PW6 handed
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State Vs. Rohit
FIR No.175/13, PS Farsh Bazaar
U/s.482 IPC, U/s.8(c)/20/29 NDPS Actover the documents prepared by him as well as the seized motorcycle and the
CCL to PW9, who prepared site plan Ex. PW9/A and apprehended the CCL
vide memo Ex. PW3/A and conducted his personal search Ex. PW3/B, in
which the original notice u/s.50 NDPS Act Ex. PW6/E was recovered.
4.11. On the basis of secret information, PW9 alongwith PW7 went to the
house of accused Rohit at H.No.28/44A, Kasturba Nagar, Shahdara, Delhi,
where he was apprehended from outside of his house and was arrested vide
arrest memo Ex.PW9/B and his personal search memo was prepared vide
memo Ex. PW9/C. His disclosure statement was also recorded vide memo
Ex. PW9/D.
4.12. PW9 prepared report u/s.57 NDPS Act regarding arrest of accused Rohit,
which was forwarded to ACP Vivek Vihar. The said report also bears the
signatures of PW10 Insp. Prabhu Dayal, SHO Farsh Bazaar at point Y. The
said report was received in office of ACP Vivek Vihar on 21.05.2013 and
entered in diary register vide Diary No.2498. The original report is Ex.
PW11/A, however, the diary register was destroyed by the time, the same
was summoned and order of destruction is Mark PW11/1, which was
produced by PW11 ASI Sunit Kumar.
4.13. On 23.05.2013, on the directions of the SHO, PW12 ASI Sunil Dutt had
handed over the sealed parcels to PW8 Ct. Uttam Chand vide RC
No.42/21/13 Ex. PW8/A, who carried the same and deposited it with FSL
vide acknowledgment Ex. PW8/B.
4.14. The said case property deposited with the FSL was analysed by Dr.
Kanak Lata Verma from 05.06.2013 to 16.07.2013. As per the FSL Report
Ex. A-1 (admitted on 06.10.2017), the three parcels Mark A, A1 and A2 were
found sealed with the seal of VKY and PDS and the contents thereof upon
physical, microscopic and chemical examination was found to be Charas /
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State Vs. Rohit
FIR No.175/13, PS Farsh Bazaar
U/s.482 IPC, U/s.8(c)/20/29 NDPS Act
Hashish. As per the report, after the examination, the case property was
sealed with the seal of KLV FSL DELHI.
4.15. The case property was produced during the deposition of PW6 and the
three pullandas Mark A, A1 and A2 were found bearing the seal of YS and
on the pullandas Mark A1 and A2, FSL number 2013/C-4254 was also
mentioned with red ink. The parcels were opened and the case property Mark
A2, A1 and A was identified by PW6 and exhibited as Exs. PW6/Article-1,
PW6/Article-2 and PW6/Article-3 respectively.
4.16. PW5 Manmohan, Record Keeper, RTO, Sheikh Sarai Authority, produced
the record of the seized motorcycle, as per which, the actual number of the
motorcycle was DL3S-BC-9756 and the registered owner was Aarti r/o.
28/5, Vishwas Nagar, Kasturba Nagar, Delhi. He produced the copy of Form-
20, which is Ex. PW5/A and copy of RC which is Ex. PW5/B.
4.17. On 01.05.2015, the investigation of the case was marked to PW4 SI Jaibir
Singh, who prepared the charge-sheet and filed it in the Court.
4.18. On 28.04.2013, at 6.14 a.m., a call was received in CPCR by PW2 WHC
Anita that one snatcher had been apprehended at Karkari Road, 60 foota
Road, Farsh Bazaar, Delhi, and PCR form in this regard is Ex. PW2/A.
5. After closing of the prosecution evidence, statement of accused under
Section 313 Cr.P.C. was recorded, wherein he pleaded innocence and claimed
that he has been falsely implicated in the present case due to his previous
involvement and some enmity with the family members of CCL. His signatures
were obtained on blank papers which were later on converted into various
memos. He further stated that he was forcibly lifted from his house.
6. Accused opted not to lead evidence in defence and accordingly, DE was
closed.
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State Vs. Rohit
FIR No.175/13, PS Farsh Bazaar
U/s.482 IPC, U/s.8(c)/20/29 NDPS Act
Arguments
7. I have heard the Ld. Additional Public Prosecutor Sh. Jitendra Sharma
and the Ld. Counsel Sh. Mukesh Kumar for the accused and perused the record.
8. Arguments were heard on 19.04.2025 and were also recorded in the
order-sheet of the even date.
9. During course of the arguments, Ld. Counsel for the accused has
submitted as under :
9.1. That there is no compliance of Section 42 NDPS Act in the present case and
that no authorisation was taken from the ACP before apprehending the CCL
at the spot and further before the arrest of the present accused.
9.2. That the provisions of Section 50 NDPS Act have not been complied with
as before the personal search of accused, no notice u/s.50 NDPS Act was
given to the accused and his legal rights were never conveyed to him.
9.3. That notice u/s.50 NDPS Act given to the CCL has not been proved by the
prosecution. That even otherwise, in the said notice, the word ‘nearest’ is
not mentioned and as such there is failure to comply with notice u/s.50
NDPS Act.
9.4. That compliance of Section 50 NDPS Act was required in the facts of the
present case, despite the fact that the contraband was recovered from the
bag being carried by the CCL, in view of the judgment titled State of
Rajasthan Vs Parmanand & Anr, (2014) 2 RCR (Criminal) 40, but the said
compliance has not been done.
9.5. That the prosecution failed to prove the recovery from the CCL and further
failed to establish that the present accused was accompanying the CCL, as
alleged in the charge-sheet.
9.6. That further in view of Mohan Lal Vs. State of Rajasthan Crl. (2015) 6
SCC 222 and Yusuf @ Asif, 2023 INSC 912, as the recovered contraband
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FIR No.175/13, PS Farsh Bazaar
U/s.482 IPC, U/s.8(c)/20/29 NDPS Actwas not subjected to proceedings u/s.52A NDPS Act, hence, the recovery do
not stand proved beyond doubt and the accused is entitled to be acquitted.
9.7. That no videography of photography was conducted at the time of seizure of
contraband from the CCL, nor any CCTV footage was recovered, which
raises as regards the recovery made from the accused.
9.8. That no effort was made by the investigating agency to join any public
witness, despite the availability of bank, commercial and residential area
near the spot.
10. Per contra, Ld. Addl. Public Prosecutor submitted as under :
10.1. As this is a case of chance recovery, hence, compliance of section 42
NDPS Act is not required in the present case.
10.2. In the present case, the recovery was made from CCL, to whom the notice
under section 50 NDPS Act was duly served. The present accused escaped
from the spot, hence no notice u/s.50 NDPS Act could be served upon the
present accused.
10.3. As far as the absence of the word ‘nearest’ in the notice u/s.50 is
concerned, Hon’ble Apex Court in State of NCT of Delhi Vs. Mohd. Jabir,
Crl. Appeal No.4921/2024 dated 02.12.2024 has categorically observed that
the use of expression ‘nearest’ refers to the convenience and, therefore, the
absence of the said word cannot be a ground for grant of bail.
10.4. That the compliance of Section 50 NDPS Act is not required, in cases
where the recoveries made not from the person of suspect, but from the
vehicle of the suspect or the bag he is carrying.
10.5. As far as compliance u/s 52A NDPS Act is concerned, the non-
compliance thereof does not vitiate the trial in view of the judgment titled
Bharat Ambale Vs. The State of Chhattisgarh, 2025 INSC 78.
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FIR No.175/13, PS Farsh Bazaar
U/s.482 IPC, U/s.8(c)/20/29 NDPS Act
10.6. The police officials made sufficient efforts to join public witness,
however, despite their efforts, none of the public persons joined
investigation. Hence, non-availability of the public persons do not vitiate the
trial.
Legal Requirement to prove the Charges
11. Section 20 NDPS Act reads as under :
“20. Punishment for contravention in relation to cannabis plant and cannabis.
Whoever, in contravention of any provision of this Act or any rule or order
made or condition of licence granted thereunder,–
(a) cultivates any cannabis plant; or
(b) produces, manufactures, possesses, sells, purchases, transports, imports
inter-State, exports inter-State or uses cannabis,
shall be punishable,–
(i) where such contravention relates to clause (a) with rigorous imprisonment
for a term which may extend to ten years, and shall also be liable to fine which
may extend to one lakh rupees; and
(ii) where such contravention relates to sub-clause (b),–
(A) and involves small quantity, with rigorous imprisonment for a term which
may extend to one year, or with fine which may extend to ten thousand rupees,
or with both;
(B) and involves quantity lesser than commercial quantity but greater than
small quantity, with rigorous imprisonment for a term which may extend to ten
years, and with fine which may extend to one lakh rupees;
(C) and involves commercial quantity, with rigorous imprisonment for a term
which shall not be less than ten years but which may extend to twenty years
and shall also be liable to fine which shall not be less than one lakh rupees but
which may extend to two lakh rupees:
Provided that the court may, for reasons to be recorded in the judgment,
impose a fine exceeding two lakh rupees.”
(emphasis supplied)
12. As far as contravention of the provision is concerned, Section 8 of NDPS
Act completely prohibits the provision of narcotic drug or psychotropic
substances, except for medical or scientific purposes, that too in the manner as
prescribed by the Act. This section reads as under :
“No person shall–
(a) cultivate any coca plant or gather any portion of coca plant; or
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U/s.482 IPC, U/s.8(c)/20/29 NDPS Act
(b) cultivate the opium poppy or any cannabis plant; or
(c) produce, manufacture, possess, sell, purchase, transport, warehouse, use,
consume, import inter-State, export inter-State, import into India, export
from India or tranship any narcotic drug or psychotropic substance, except
for medical or scientific purposes and in the manner and to the extent
provided by the provisions of this Act or the rules or orders made thereunder
and in a case where any such provision, imposes any requirement by way of
licence, permit or authorisation also in accordance with the terms and
conditions of such licence, permit or authorisation:
Provided that, and subject to the other provisions of this Act and the rules
made thereunder, the prohibition against the cultivation of the cannabis plant
for the production of ganja or the production, possession, use, consumption,
purchase, sale, transport, warehousing, import inter-State and export inter-
State of ganja for any purpose other than medical and scientific purpose shall
take effect only from the date which the Central Government may, by
notification in the Official Gazette, specify in this behalf:
Provided further that nothing in this section shall apply to the export of
poppy straw for decorative purposes.”
(emphasis supplied)
13. As per the Section, possession of all narcotic drugs is prohibited by
Section 8.
14. The term “narcotic drugs” is defined in Section 2(xiv) as under :
(xiv) “narcotic drug” means coca leaf, cannabis (hemp), opium, poppy
straw and includes all manufactured drugs;
15. As per the definition, ‘narcotic drug’ includes cannabis (hemp).
Therefore, the possession of cannabis (hemp) is prohibited by Section 8 of
NDPS Act.
16. The term “cannabis (hemp)” is defined in Section 2(iii) of NDPS Act, as
under :
“(iii) “cannabis (hemp)” means–
(a) charas, that is, the separated resin, in whatever form, whether crude or
purified, obtained from the cannabis plant and also includes concentrated
preparation and resin known as hashish oil or liquid hashish;
(b) ganja, that is, the flowering or fruiting tops of the cannabis plant (excluding
the seeds and leaves when not accompanied by the tops), by whatever name
they may be known or designated; and
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(c) any mixture, with or without any neutral material, of any of the above forms
of cannabis or any rink prepared therefrom”
(emphasis supplied)
17. “Cannabis (hemp)” besides other things also means Charas / Hashish i.e. ,
the separated resin, in whatever form, whether crude or purified, obtained from
the cannabis plant and also includes concentrated preparation and resin. In the
present case, the prosecution would be required to prove that the recovered
substance was charas/hashish.
18. The prosecution would also be required to prove that the quantity of the
contraband recovered was of small, intermediate or commercial quantity. The
terms “small quantity” and “commercial quantity” are defined in Section
2(xxiiia) & 2 (viia), as under :
“(xxiiia) “small quantity”, in relation to narcotic drugs and psychotropic substances,
means any quantity lesser than the quantity specified by the Central Government by
notification in the Official Gazette;”
(viia) “commercial quantity”, in relation to narcotic drugs and psychotropic
substances, means any quantity greater than the quantity specified by the Central
Government by notification in the Official Gazette.”
19. The notification specifying small quantity & commercial quantity vide
SO1055(E) dated 19.10.2001 mentions the small quantity and commercial
quantity for various Narcotic Drugs & Psychotropic Substances, including
‘Charas / Hashish’. As per entry at serial no.23 in the said notification, the small
quantity for Charas / Hashish is 100 gms and commercial quantity is 1 Kg.
20. In order to prove the charges u/s.20(b)(ii)(B) NDPS Act, the prosecution
is required to prove the following facts :
(1) That the accused along with co accused CCL was in possession of
contraband.
(2) That the possession was in contravention of the provision of the Act
or any rule or order made or condition of license granted thereunder.
(3) That the contraband was Charas/Hashish. DLSH010006842015 Page 13 of 57 SC No.155/16 State Vs. Rohit FIR No.175/13, PS Farsh Bazaar U/s.482 IPC, U/s.8(c)/20/29 NDPS Act (4) That the quantity of the contraband was intermediate (for Section 20(b)(ii)(B) i.e. more than 1000 gms).
21. Besides proving the aforesaid facts, the prosecution is also required to
prove that the investigating agency carried out the investigation in compliance
with the provisions of NDPS Act. The investigating agency must adhere strictly
to the legal procedure established during the search, ensuring transparency and
fairness in the investigation. By adhering to this procedure, the agency
demonstrates its commitment to protecting personal liberty, a fundamental right
of citizens. This ensures that the search was conducted in a manner that upholds
the principles of the judicial system. The credibility of the evidence presented
by the prosecution is enhanced when the investigating agency follows the
statute scrupulously.1 The failure to adhere to the procedure raises a doubt in the
mind of the court regarding the manner in which the investigation is carried out,
which obviously favors the accused.
22. State of Punjab vs. Balbir Singh 1994 INSC 96, Hon’ble Apex Court
considered the scheme of the Act as under:
“4. The NDPS Act was enacted in the year 1985 with a view to consolidate
and amend the law relating to narcotic drugs, to make stringent provisions for
the control and regulation of operations relating to narcotic drugs and
psychotropic substances, to provide for the forfeiture of property derived from,
or used in, illicit traffic in narcotic drugs and psychotropic substances, to
implement the provisions of the International Conventions on Narcotic Drugs
and Psychotropic Substances and for matters connected therewith. Sections 1
to 3 in Chapter I deal with definitions and connected matters. The provisions
1 In Koyappakalathil Ahamed Koya vs. A.S. Menon and Ors. (03.07.2002 – BOMHC) :
MANU/MH/1838/2002:
2. “In view of the principle that Ceaser’s wife must be above-board, the
investigating agency has to be consistent with the procedure laid down by law while
conducting the search and it has to be above-board in following the procedure by
investigating into the crime and if that is done it would assure the judicial mind that
by giving importance to the personal liberty a fundamental right of (he citizen, the
search was conducted. If that is done, then there would be creditworthiness to such
evidence which has been adduced by the prosecution. The investigating agency must
follow the procedure as envisaged by the statute scrupulously and failure to do so
must be viewed by the higher authorities seriously inviting action against the
concerned official so that laxity on the part of the investigating authority is curbed.”
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U/s.482 IPC, U/s.8(c)/20/29 NDPS Act
in Chapter II deal with the powers of the Central Government to take measures
for preventing and combating abuse of and illicit traffic in narcotic drugs and
to appoint authorities and officers to exercise the powers under the Act. The
provisions in Chapter III deal with prohibition, control and regulation of
cultivation of coca plant, opium poppy etc. and to regulate the possession,
transport, purchase and consumption of poppy straw etc. Chapter IV deals
with various offences and penalties for contravention in relation to opium
poppy, coca plant, narcotic drugs and psychotropic substances and prescribes
deterrent sentences. The provisions of Chapter V deals with the procedure
regarding the entry, arrest, search and seizure. Chapter VA deals with forfeiture
of property derived from or used in illicit traffic of such drugs and substances.
The provisions of Chapter VI deals with miscellaneous matters. We are mainly
concerned with Sections 41, 42, 43, 44, 49, 50, 51, 52 and 57. Under Section
41 certain classes of magistrates are competent to issue warrants for the arrest
of any person whom they have reason to believe to have committed any
offence punishable under Chapter IV or for search of any building,
conveyance or place in which they have reason to believe that any narcotic
drug or psychotropic substance in respect of which an offence punishable
under Chapter IV has been committed, is kept or concealed. Section 42
empowers certain officers to enter, search, seize and arrest without warrant or
authorisation. Such officer should be superior in rank to a peon, sepoy or
constable of the departments of central excise, narcotics, customs, revenue,
intelligence or any other department of the Central Government or an officer
of similar superior rank of the revenue, drugs control, excise, police or any
other department of a State Government as is empowered in this behalf by
general or special order of the State Government. Such officer, if he has reason
to believe from personal knowledge or information taken down in writing, that
any offence punishable under Chapter IV has been committed, he may enter
into and search in the manner prescribed thereunder between sunrise and
sunset. He can detain and search any person if he thinks proper and if he has
reason to believe such person to have committed an offence punishable under
Chapter IV. Under the proviso, such officer may also enter and search a
building or conveyance at any time between sunset and sunrise also provided
he has reason to believe that search warrant or authorisation cannot be
obtained without affording opportunity for concealment of the evidence or
facility for the escape of an offender. But before doing so, he must record the
grounds of his belief and send the same to his immediate official superior.
Section 43 empowers such officer as mentioned in Section 42 to seize in any
public place or in transit, any narcotic drug or psychotropic substance in
respect of which he has reason to believe that an offence punishable under
Chapter IV has been committed and shall also confiscate any animal or
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conveyance alongwith such substance. Such officer can also detain and search
any person whom he has reason to believe to have committed such offence and
can arrest him and any other person in his company. Section 44 merely lays
down that provisions of Sections 41 to 43 shall also apply in relation to
offences regarding coca plant, opium poppy or cannabis plant. Under Section
49, any such officer authorised under Section 42, if he has reason to suspect
that any animal or conveyance is, or is about to be, used for the transport of
any narcotic drug or psychotropic substance, can rummage and search the
conveyance or part thereof, examine and search any goods in the conveyance
or on the animal and he can stop the animal or conveyance by using all lawful
means and where such means fail, the animal or the conveyance may be fired
upon. Then comes Section 50. …… This provision obviously is introduced to
avoid any harm to the innocent persons and to avoid raising of allegation of
planting or fabrication by the prosecuting authorities. It lays down that if the
person to be searched so requires, the officer who is about to search him under
the provisions of Sections 41 to 43, shall take such person without any
unnecessary delay to the nearest Gazetted Officer of any of the departments
mentioned in Section 42 or to the nearest magistrate…….. Section 51 is also
important for our purpose. ……. This is a general provision under which the
provisions of Code of Criminal Procedure, (“Cr. PC” for short) are made
applicable to warrants, searches, arrests and seizures under the Act. Section 52
lays down that any officer arresting a person under Sections 41 to 44 shall
inform the arrested person all the grounds for such arrest and the person
arrested and the articles seized should be forwarded without unnecessary delay
to the Magistrate by whom the warrant was issued or to the officer-in-charge
of the nearest police station, as the case may be and such Magistrate or the
officer to whom the articles seized or the person arrested are forwarded may
take such measures necessary for disposal of the person and the articles. This
Section thus provides some of the safeguards within the parameters of Article
22(1) of the Constitution of India. In addition to this, Section 57 further
requires that whenever any person makes arrest or seizure under the Act, he
shall within forty-eight hours after such arrest or seizure make a report of the
particulars of arrest or seizure to his immediate official superior. This Section
provides for one of the valuable safeguards and tries to check any belated
fabrication of evidence after arrest or seizure.”
23. It is settled legal proposition that the procedure provided under Chapter V
of the NDPS Act has to be scrupulously followed for the Court to raise such
presumption. For raising the presumption u/s 54 of the Act it must be first
established that recovery was made from the accused and the procedure
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provided under the NDPS Act followed thoroughly without fail. It is further
settled law that for attracting the provision of Section 54 of NDPS Act, it is
essential for the prosecution to establish the element of possession of
contraband by the accused beyond reasonable doubt for the burden to shift to
the accused to prove his innocence. This burden on the prosecution is a heavy
burden. To decide whether the burden has been discharged or not by the
prosecution, it is relevant to peruse the record and evidence and consider the
submissions made by the parties.
ANALYSIS OF EVIDENCE
24. The Court will now proceed to examine and discuss the various aspects of
the case and the relevant pieces of evidence under distinct headings as follows:
Discussion on the point of compliance of Section 42 NDPS Act
25. Section 42 NDPS Act is as under:
42. Power of entry, search, seizure and arrest without warrant or authorisation.– (l)
Any such officer (being an officer superior in rank to a peon, sepoy or constable) of
the departments of central excise, narcotics, customs, revenue intelligence or any
other department of the Central Government including para-military forces or armed
forces as is empowered in this behalf by general or special order by the Central
Government, or any such officer (being an officer superior in rank to a peon, sepoy or
constable) of the revenue, drugs control, excise, police or any other department of a
State Government as is empowered in this behalf by general or special order of the
State Government, if he has reason to believe from personal knowledge or
information given by any person and taken down in writing that any narcotic drug, or
psychotropic substance, or controlled substance in respect of which an offence
punishable under this Act has been committed or any document or other article which
may furnish evidence of the commission of such offence or any illegally acquired
property or any document or other article which may furnish evidence of holding any
illegally acquired property which is liable for seizure or freezing or forfeiture under
Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed
place, may between sunrise and sunset,-
(a) enter into and search any such building, conveyance or place;
(b) in case of resistance, break open any door and remove any obstacle to such entry;
(c) seize such drug or substance and all materials used in the manufacture thereof and
any other article and any animal or conveyance which he has reason to believe to be
liable to confiscation under this Act and any document or other article which he has
reason to believe may furnish evidence of the commission of any offence punishable
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U/s.482 IPC, U/s.8(c)/20/29 NDPS Actunder this Act or furnish evidence of holding any illegally acquired property which is
liable for seizure or freezing or forfeiture under Chapter VA of this Act; and
(d) detain and search, and, if he thinks proper, arrest any person whom he has reason
to believe to have committed any offence punishable under this Act:
Provided that in respect of holder of a licence for manufacture of manufactured drugs
or psychotropic substances or controlled substances granted under this Act or any rule
or order made thereunder, such power shall be exercised by an officer not below the
rank of sub-inspector:
Provided further that if such officer has reason to believe that a search warrant or
authorisation cannot be obtained without affording opportunity for the concealment of
evidence or facility for the escape of an offender, he may enter and search such
building, conveyance or enclosed place at any time between sunset and sunrise after
recording the grounds of his belief.
(2) Where an officer takes down any information in writing under sub-section (1) or
records grounds for his belief under the proviso thereto, he shall within seventy-two
hours send a copy thereof to his immediate official superior.”
(emphasis supplied)
26. Section 42 of the NDPS Act provides that the concerned police officer,
who received the secret information is required to record the secret information
in writing and send the information so reduced into writing within 72 hours of
its receipt to immediate official superior.
27. The present case is a case of chance recovery, as no secret information
was received before the apprehension of the accused. Accordingly, the recording
of secret information in terms of Section 42(1) NDPS Act and forwarding the
same to immediate official superior within 72 hours was not required in the
present case. Thus, the question of compliance of Section 42 NDPS Act does
not arise in the facts of this case.
Discussion on the point of compliance of Section 50 of NDPS Act
28. Section 50 NDPS Act is as under :
“Conditions under which search of persons shall be conducted.
(1) When any officer duly authorised under section 42 is about to search any
person under the provisions of section 41, section 42 or section 43, he shall, if
such person so requires, take such person without unnecessary delay to nearest
Gazetted Officer of any of the departments mentioned in section 42 or to the
nearest Magistrate.
(2) If such requisition is made, the officer may detain the person until he can
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U/s.482 IPC, U/s.8(c)/20/29 NDPS Actbring him before the Gazetted Officer or the Magistrate referred to in sub-
section (1).
(3) The Gazetted Officer or the Magistrate before whom any such person is
brought shall, if he sees no reasonable ground for search, forthwith discharge
the person but otherwise shall direct that search be made.
(4) No female shall be searched by anyone excepting a female.
(5) When an officer duly authorised under section 42 has reason to believe that
it is not possible to take the person to be searched to the nearest Gazetted
Officer or Magistrate without the possibility of the person to be searched
parting with possession of any narcotic drug or psychotropic substance, or
controlled substance or article or document, he may, instead of taking such
person to the nearest Gazetted Officer or Magistrate, proceed to search the
person as provided under section100 of the Code of Criminal Procedure, 1973
(2 of 1974).
(6) After a search is conducted under sub-section (5), the officer shall record
the reasons for such belief which necessitated such search and within seventy-
two hours send a copy thereof to his immediate official superior.”
(emphasis supplied)
29. The legal position in respect to Section 50 NDPS Act has been laid down
by Hon’ble Supreme Court in case titled as State vs Baldev Singh AIR 1999 SC
2378 that the compliance of the provisions of section 50 NDPS Act is
mandatory. It is also held in this case that the compliance of this provision is not
necessary where recovery was effected without prior information and where it
was the case of a chance recovery. The relevant para of this judgment reads as
under:-
“12. On its plain reading, Section 50 would come into play only in the case of
a search of a person as distinguished from search of any premises etc.
However, if the empowered officer, without any prior information as
contemplated by Section 42 of the Act makes a search or causes arrest of
person during the normal course of investigation into an offence or suspected
offence and on completion of that search, a contraband under the Narcotic
Drugs And Psychotropic Substances Act is also recovered, the requirements of
Section 50 of the Act are not attracted.”
(emphasis supplied)
30. In the case titled as State of Punjab vs. Balbir Singh (1994) 3 SCC 299,
Hon’ble Apex Court had observed as under:-
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U/s.482 IPC, U/s.8(c)/20/29 NDPS Act“25. The questions considered above arise frequently before the trial courts.
Therefore, we find it necessary to set out our conclusions which are as
follows:
1) If a police officer without any prior information as contemplated
under the provisions of the Narcotic Drugs And Psychotropic
Substances Act makes a search or arrests a person in the normal course
of investigation into an offence or suspected offence as provided under
the provisions of Cr P.C. and when such search is completed at that
stage Section 50 of the Narcotic Drugs and Psychotropic Substances
Act would not be attracted and the question of complying with the
requirements thereunder would not arise. If during such search or
arrest there is a chance recovery of any narcotic drug or Psychotropic
substance then the police officer, who is not empowered, should
inform the empowered officer who should thereafter proceed in
accordance with the provisions of the Narcotic Drugs And
Psychotropic Substances Act. If he happens to be an empowered
officer also, then from that stage onwards. he should carry out the
investigation in accordance with the other provisions of the Narcotic
Drugs And Psychotropic Substances Act.” (emphasis supplied)
31. In State of H.P. vs. Sunil Kumar (05.03.2014 – SC) : MANU/
SC/0193/2014, a case of chance recovery, Hon’ble Apex Court considered the
question regarding application of Section 50 NDPS Act. Relevant para of the
said judgment dealing with chance recovery and notice u/s.50 NDPS Act are
reproduced as under:
“Chance recovery:
11. The State is in appeal against the acquittal of Sunil Kumar and the broad
submission is that the recovery of charas from him was a chance recovery.
Under these circumstances, in view of the Constitution Bench decision in
Baldev Singh which endorsed the view taken in State of Punjab v. Balbir
Singh (1994) 3 SCC 299 the personal search of Sunil Kumar resulting in the
recovery of contraband did not violate Section 50 of the Act. Reliance was
placed by learned Counsel on paragraph 25 in Balbir Singh which was also
endorsed by the Constitution Bench. It was submitted that it is only after a
chance or accidental recovery of any narcotic drug or psychotropic substance
by any police officer that the provisions of the Act would come into play. It is
then that the empowered officer should be informed and that empowered
officer should thereafter proceed to investigate the matter in accordance with
the provisions of the Act.
12. The relevant extract of paragraph 25 of Balbir Singh reads as follows:
(1) If a police officer without any prior information as contemplated
under the provisions of the NDPS Act makes a search or arrests a
person in the normal course of investigation into an offence or
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U/s.482 IPC, U/s.8(c)/20/29 NDPS Actsuspected offences as provided under the provisions of Code of
Criminal Procedure and when such search is completed at that stage
Section 50 of the NDPS Act would not be attracted and the question of
complying with the requirements thereunder would not arise. If during
such search or arrest there is a chance recovery of any narcotic drug or
psychotropic substance then the police officer, who is not empowered,
should inform the empowered officer who should thereafter proceed in
accordance with the provisions of the NDPS Act. If he happens to be
an empowered officer also, then from that stage onwards, he should
carry out the investigation in accordance with the other provisions of
the NDPS Act.
13. In view of the opinion expressed by the Trial Court and the High Court, we
need to firstly understand what a ‘chance recovery’ is. The next question would
be whether the provisions of Section 50 of the Act would apply when there is a
chance recovery.
14. The expression ‘chance recovery’ has not been defined anywhere and its
plain and simple meaning seems to be a recovery made by chance or by
accident or unexpectedly. In Mohinder Kumar v. State, Panaji, Goa (1998) 8
SCC 655 this Court considered a chance recovery as one when a police officer
“stumbles on” narcotic drugs when he makes a search. In Sorabkhan
Gandhkhan Pathan v. State of Gujarat (2004) 13 SCC 608 the police officer,
while searching for illicit liquor, accidentally found some charas. This was
treated as a ‘chance recovery’.
15. Applying this to the facts of the present appeal, it is clear that the police
officers were looking for passengers who were travelling ticketless and
nothing more. They accidentally or unexpectedly came across drugs carried by
a passenger. This can only be described as a recovery by chance since they
were neither looking for drugs nor expecting to find drugs carried by anybody.
16. It is not possible to accept the view of the High Court that since the police
officers conducted a random search and had a “positive suspicion” that Sunil
Kumar was carrying contraband, the recovery of charas from his person was
not a chance recovery. The recovery of contraband may not have been
unexpected, but the recovery of charas certainly was unexpected
notwithstanding the submission that drugs are easily available in the Chamba
area. The police officers had no reason to believe that Sunil Kumar was
carrying any drugs and indeed that is also not the case set up in this appeal. It
was plainly a chance or accidental or unexpected recovery of charas-Sunil
Kumar could well have been carrying any other contraband such as, smuggled
gold, stolen property or an illegal firearm or even some other drug.
17. We are not going into the issue whether the personal or body search of
Sunil Kumar (without a warrant) was at all permitted by law under these
circumstances. That was not an issue raised or canvassed before the Trial
Court or the High Court or even before us, although it has been adverted to in
the written submissions by Learned Counsel assisting us on behalf of Sunil
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Kumar.
Applicability of Section 50 of the Act:
18. As far as the applicability of Section 50 of the Act in a chance recovery is
concerned, the issue is no longer res integra in view of the decision of the
Constitution Bench in Baldev Singh.
19. It is true that Sunil Kumar behaved in a suspicious manner which resulted
in his personal search being conducted after he disembarked from the bus.
However, there is no evidence to suggest that before he was asked to alight
from the bus, the police officers were aware that he was carrying a narcotic
drug, even though the Chamba area may be one where such drugs are easily
available. At best, it could be said the police officers suspected Sunil Kumar of
carrying drugs and nothing more. Mere suspicion, even if it is ‘positive
suspicion’ or grave suspicion cannot be equated with ‘reason to believe’. Joti
Parshad v. State of Haryana 1993 Supp (2) SCC 497 and Sheo Nath Singh v.
Appellate Assistant CIT (1972) 3 SCC 234. These are two completely different
concepts. It is this positive suspicion, and not any reason to believe, that led to
the chance recovery of charas from the person of Sunil Kumar.
20. Similarly, the positive suspicion entertained by the police officers cannot
be equated with prior information. Bharatbhai Bhagwanjibhai v. State of
Gujarat (2002) 8 SCC 327 The procedure to be followed when there is prior
information of the carrying of contraband drugs is laid down in the Act and it
is nobody’s case that that procedure was followed, let alone contemplated.
21. We are not in agreement with the view of the High Court that since the
police officers had a positive suspicion that Sunil Kumar was carrying some
contraband, therefore, it could be said or assumed that they had reason to
believe or prior information that he was carrying charas or some other narcotic
substance and so, before his personal or body search was conducted, the
provisions of Section 50 of the Act ought to have been complied with. The
recovery of charas on the body or personal search of Sunil Kumar was clearly
a chance recovery and, in view of Baldev Singh, it was not necessary for the
police officers to comply with the provisions of Section 50 of the Act.”
32. In view of the aforesaid judgment, in a case of chance recovery, like the
present one, notice u/s.50 NDPS Act is not required to be given before the
search of the accused is conducted.
33. However, it is noted that as soon as the police official (PW3) came to
know that the CCL was carrying Charas, upon checking the pitthu bag
containing black and brown coloured solid substance, the further proceedings
were conducted as per the provisions of NDPS Act, as IO PW6 SI Vipin Kumar
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upon reaching the spot gave notice u/s.50 NDPS Act to the CCL before his
bodily search was conducted. Thus, after the apprehension of the CCL and
chance recovery of contraband / Charas by PW3 and before bodily search of
CCL was conducted by IO/PW6, mandatory notice u/s.50 NDPS Act was served
upon CCL and only after his refusal to avail his legal rights, his bodily search
was carried out. Though, the CCL is not before the Court, however, as the
recovery made from the CCL forms the basis of the case against the present
accused, hence, it needs to be determined by the Court whether the recovery
made from the CCL was made legally as per the provisions of NDPS Act.
34. PW6 in his deposition categorically stated that he prepared notice u/s.50
NDPS Act and handed over the same to the CCL. He also testified that he
apprised the CCL regarding his legal rights, as mentioned in the notice u/s.50
NDPS Act. Testimony of this witness on this aspect is as under:
“I prepared notice U/S 50 NDPS Act,vide carbon process. Contents of the
notice Under 50 NDPS Act were read over and explained to the accused.
Accused was also briefed regarding his legal rights to get his search in the
presence of Gazetted Officer or Magistrate or they may be called at the spot
for the said purpose. The meaning of Gazetted Officer and Magistrate was
explained to him. The accused was also apprised that prior to his search, he
can take the search of police party. The original notice was served upon the
accused. The accused refused for his search in presence of GO or Magistrate.
The refusal was written on the carbon copy of notice in his hand writing.
At this stage, the carbon copy is placed on the file is shown to the witness and
the witness states that the notice was prepared by him and the original was
served upon the accused. The witness further states that the refusal was written
by the accused in his hand writing from point A to A in the notice. Witness has
also identified his signatures at point B. The notice is now Ex PW6/A.
After that the accused was search and no other contraband was recovered.”
35. It may be noted that there is no cross-examination of this witness as
regards the notice given by him to the CCL and as regards the response of the
CCL to the notice, which was recorded on the copy of the notice. The witness
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was not given any suggestion in his cross-examination to assail the notice u/s.50
NDPS Act.
36. As stated earlier, it is the case of the prosecution that the recovery was a
chance recovery, wherein in the Pitthu bag being carried by the CCL, Charas
like substance was found and only thereafter, information was given at the PS to
depute an IO to conduct further proceedings under NDPS Act. Therefore, as per
the prosecution case, the contents of the Pitthu bag were checked by PW3
before the IO/PW6 was deputed to conduct the investigation in the present case
and as such, it was not possible to give notice u/s.50 NDPS Act, before the
contents of the Pitthu bag was checked by PW3. It is precisely for this reason,
as pointed out by the Hon’ble Apex Court in the aforesaid judgments, that the
requirement of Section 50 of NDPS Act is dispensed with in cases of chance
recovery.
37. However, after the chance recovery, the bodily search of the CCL was
duly carried out after giving him notice u/s.50 NDPS Act. Thus, as far as the
bodily search of the CCL is concerned, the investigating agency duly complied
with Section 50 NDPS Act.
38. It was one of the arguments of the Ld. Defence Counsel that in the notice
under section 50 NDPS Act, the word “nearest” is not mentioned and as such
there is failure to comply with section 50 NDPS Act.
39. Hon’ble Apex Court in case titled as State of NCT of Delhi Vs. Mohd.
Jabir {Crl. Appeal No.4921/2024 dated 02.12.2024} in this regard observed as
under:
“It is obvious that the intent behind the provision is to ensure that the person
about to be searched is made aware of the option to be taken before a third
person other than the one who is conducting the search. Use of the expression
“nearest” refers to the convenience as the suspect is to be searched. Delay
should be avoided, as is reflected from the use of the word “unnecessary
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Act. Nothing more is articulated and meant by the words used, or the intent
behind the provision.
Having said so, we are unable to appreciate the reasoning given by the
High Court in the impugned judgment, which states that use of the word ‘any’
does not satisfy the mandate of the ‘nearest’ Gazetted Officer and, hence, the
respondent, Mohd. Jabir, is entitled to bail. The option given to the respondent,
Mohd. Jabir, about to be searched, with reference to a Gazetted Officer or a
Magistrate, does not refer to the authorized person in the raiding.”
(emphasis supplied)
40. Therefore, the absence of the word ‘nearest’ in the notice under section 50
NDPS Act does not adversely affect the case of the prosecution.
41. The aforesaid deposition of PW6 is further supported by PW3 and PW7,
as they testified that the bodily search of the CCL was conducted only after
notice u/s.50 NDPS Act was served upon the CCL.
42. In view of the testimonies of above witnesses, namely, PW-3, PW6 and
PW7, the prosecution has successfully proved on record that the CCL was
properly served with the notice under Section 50 of the NDPS Act before his
bodily search and there was no violation of the said mandatory provision.
43. It may be noted that from the bodily search of the CCL, no contraband
was recovered. The contraband (Charas) was found in the Pitthu bag being
carried by the CCL, while he was driving the motorcycle and the present
accused was allegedly sitting as pillion rider. As regards recovery from bags,
briefcase etc being carried by a suspect, it has been observed by the Hon’ble
Apex Court that the provisions of section 50 NDPS Act do not apply to
recoveries other than those made from the person of the accused.
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44. In this regard, Hon’ble Apex Court in case titled as State of Himachal
Pradesh and Ors. vs. Pawan Kumar and Ors. 2005 INSC 193 2, has observed as
under:
“8. The dictionary meaning of the word “person” is as under :
Chambers’s45. An individual; a living soul; a human
Dictionary 46.
: being;
47. 48. b: the outward appearance, & c : bodily form; a
distinction in form; according as the subject of the verb is
the person speaking, spoken to or spoken of.
Webster’s 49. International Dictionary An individual human
Third New: being; a human body as distinguished from an animal or
thing; an individual having a specified kind of bodily
appearance: the body of a human being as presented to
public view normally with its appropriate coverings and
clothings: a living individual unit a being possessing or
forming the subject of personality.
Black’s Law50. In general usage, a human being (i.e. natural
Dictionary: person), though by statute term may include labour
organizations, partnerships, associations, corporation.
Law Lexicon
51. The expression ‘person’ is a noun according to
: by P. grammar and it means a character represented as on the
Ramanatha stage, a human being; a self-conscious personality.”
Aiyar
9. We are not concerned here with the wide definition of the word “person”, which
in the legal world includes corporations, associations or body of individuals as
factually in these type of cases search of their premises can be done and not of
their person. Having regard to the scheme of the Act and the context in which
it has been used in the Section it naturally means a human being or a living
individual unit and not an artificial person. The word has to be understood in a
broad commonsense manner and, therefore, not a naked or nude body of a
human being but the manner in which a normal human being will move about
in a civilized society. Therefore, the most appropriate meaning of the word
“person” appears to be – “the body of a human being as presented to public
view usually with its appropriate coverings and clothings”. In a civilized
society appropriate coverings and clothings are considered absolutely essential
and no sane human being comes in the gaze of others without appropriate
coverings and clothings. The appropriate coverings will include footwear also
as normally it is considered an essential article to be worn while moving
outside one’s home. Such appropriate coverings or clothings or footwear, after
being worn, move along with the human body without any appreciable or extra
2 Three Judges Bench
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effort. Once worn, they would not normally get detached from the body of the
human being unless some specific effort in that direction is made. For
interpreting the provision, rare cases of some religious monks and sages, who,
according to the tenets of their religious belief do not cover their body with
clothings, are not to be taken notice of. Therefore, the word “person” would
mean a human being with appropriate coverings and clothings and also
footwear.
10. A bag, briefcase or any such article or container, etc. can, under no
circumstances, be treated as body of a human being. They are given a separate
name and are identifiable as such. They cannot even remotely be treated to be
part of the body of a human being. Depending upon the physical capacity of a
person, he may carry any number of items like a bag, a briefcase, a suitcase, a
tin box, a thaila, a jhola, a gathri, a holdall, a carton, etc. of varying size,
dimension or weight. However, while carrying or moving along with them,
some extra effort or energy would be required. They would have to be carried
either by the hand or hung on the shoulder or back or placed on the head. In
common parlance it would be said that a person is carrying a particular article,
specifying the manner in which it was carried like hand, shoulder, back or
head, etc. Therefore, it is not possible to include these articles within the ambit
of the word “person” occurring in Section 50 of the Act.
11. An incriminating article can be kept concealed in the body or clothings or
coverings in different manner or in the footwear. While making a search of
such type of articles, which have been kept so concealed, it will certainly come
within the ambit of the word “search of person”. One of the tests, which can be
applied is, where in the process of search the human body comes into contact
or shall have to be touched by the person carrying out the search, it will be
search of a person. Some indication of this is provided by Sub-section (4) of
Section 50 of the Act, which provides that no female shall be searched by
anyone excepting a female. The legislature has consciously made this
provision as while conducting search of a female, her body may come in
contact or may need to be touched and, therefore, it should be done only by a
female. In the case of a bag, briefcase or any such article or container, etc.,
they would not normally move along with the body of the human being unless
some extra or special effort is made. Either they have to be carried in hand or
hung on the shoulder or back or placed on the head. They can be easily and in
no time placed away from the body of the carrier. In order to make a search of
such type of objects, the body of the carrier will not come in contact of the
person conducting the search. Such objects cannot be said to be inextricably
connected with the person, namely, the body of the human being. Inextricable
means incapable of being disentangled or untied or forming a maze or tangle
from which it is impossible to get free.”
(emphasis supplied)
52. In Abdul Rashid Ibrahim Mansuri v. State of Gujarat 2000 Cr.L.J 1384
four gunny bags were found in an auto rickshaw which the suspect was driving
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and there was no other person present. The argument based on non-compliance
of Section 50, as explained in the case of Baldev Singh 3, was rejected on the
ground that the gunny bags were not inextricably connected with the person of
the accused.
53. In Madan Lal v. State of H.P. MANU/SC/0599/2003 it was held that
Section 50 would apply in the case of search of a person as contrasted to search
of vehicles, premises or articles.
54. In Gurbax Singh v. State of Haryana 2001 Cr.L.J 1166, suspect got down
from a train carrying a Katta (gunny bag) on his shoulder. It was held that
Section 50 was not applicable.
55. In State of Punjab v. Makhan Singh MANU/SC/0181/2004, the suspect
was apprehended while alighting from a bus with a tin box in his hand in which
contraband was found. The High Court acquitted the accused on account of non-
compliance of Section 50. Hon’ble Apex Court while holding that Section 50
will not apply, reversed the judgment of the High Court and the accused was
convicted.
56. In V. Kanhaiya Lal v. State of M.P. (2000)10 SCC 380, one kg. of opium
was found in a bag which was being carried by the suspect. Argument seeking
acquittal on the ground of noncompliance of section 50 NDPS Act was rejected
on the ground that it was not a case of search of the person of the accused.
57. In Birakishore Kar v. State of Orissa AIR 2000 SC 3626, suspect was
found lying on a plastic bag in a train compartment. Argument that compliance
of section 50 was mandatory was rejected on the ground that the accused was
sitting on the plastic bag and it was not a case of the search of the person of the
accused.
3 State of Punjab vs. Baldev Singh and Ors. (21.07.1999 – Constitution Bench) : MANU/SC/0981/1999 :
1999 INSC 282.
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58. In Krishna Kanwar v. State of Rajasthan 2004:INSC:61 it was held that
Section 50 applies where search has to be in relation to a person as contrasted to
search of premises, vehicles, articles or bag.
59. In Sarjudas v. State of Gujarat 2000 Cr.L.J 509 suspect were riding a
scooter on which a bag was hanging in which charas was found. Section 50 was
held not applicable as it was not a case where the person of the accused was
searched.
60. In Saikou Jabbi v. State of Maharashtra MANU/SC/0991/2003, Heroine
was found in a bag being carried by suspect. It was held that Section 50 was not
applicable as it applies to search of a person.
61. Ld. Counsel for the accused while submitting that in a case where the
accused as well as the bag is searched, compliance of Section 50 is essential,
relied upon judgment of the Hon’ble Apex Court in Parmanand (supra) and
further relied upon two judgments referred to in the said judgment i.e. Dilip &
Anr. Vs. State of MP, AIR 2007 SC 369 and Union of India Vs. Shah Alam, AIR
2010 SC 1785. The relevant paras i.e paras no.9 to 12 of the judgment in
Parmanand (supra) are reproduced as under :
“9. In this case, the conviction is solely based on recovery of opium from the
bag of Respondent No. 1-Parmanand. No opium was found on his person. In
Kalema Tumba v. State of Maharashtra MANU/SC/0662/1999 : (1999) 8 SCC
257, this Court held that if a person is carrying a bag or some other article with
him and narcotic drug is recovered from it, it cannot be said that it was found
from his person and, therefore, it is not necessary to make an offer for search in
the presence of a gazetted officer or a Magistrate in compliance of Section 50 of
the NDPS Act. In State of Himachal Pradesh v. Pawan Kumar
MANU/SC/0272/2005 : (2005) 4 SCC 350, three-Judge Bench of this Court
held that a person would mean a human being with appropriate coverings and
clothing and also footwear. A bag, briefcase or any such article or container etc.
can under no circumstances be treated as a body of a human being. Therefore, it
is not possible to include these articles within the ambit of the word “person”
occurring in Section 50 of the NDPS Act. The question is, therefore, whether
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Section 50 would be applicable to this case because opium was recovered only
from the bag carried by Respondent No. 1-Parmanand.
10. In Dilip and Anr. v. State of Madhya Pradesh MANU/SC/8711/2006 :
(2007) 1 SCC 450, on the basis of information, search of the person of the
accused was conducted. Nothing was found on their person. But on search of the
scooter they were riding, opium contained in plastic bag was recovered. This
Court held that provisions of Section 50 might not have been required to be
complied with so far as the search of the scooter is concerned, but keeping in
view the fact that the person of the accused was also searched, it was obligatory
on the part of the officers to comply with the said provisions, which was not
done. This Court confirmed the acquittal of the accused.
11. In Union of India v. Shah Alam MANU/SC/1065/2009 : (2009) 16 SCC
644, heroin was first recovered from the bags carried by the Respondents
therein. Thereafter, their personal search was taken but nothing was recovered
from their person. It was urged that since personal search did not lead to any
recovery, there was no need to comply with the provisions of Section 50 of the
NDPS Act. Following Dilip, it was held that since the provisions of Section 50
of the NDPS Act were not complied with, the High Court was right in acquitting
the Respondents on that ground.
12. Thus, if merely a bag carried by a person is searched without there being any
search of his person, Section 50 of the NDPS Act will have no application. But
if the bag carried by him is searched and his person is also searched, Section 50
of the NDPS Act will have application. In this case, Respondent No. 1
Parmanand’s bag was searched. From the bag, opium was recovered. His
personal search was also carried out. Personal search of Respondent No. 2
Surajmal was also conducted. Therefore, in light of judgments of this Court
mentioned in the preceding paragraphs, Section 50 of the NDPS Act will have
application.”
(emphasis supplied)
62. However, in this regard, the Court would like to refer to a Full Bench
decision of the Hon’ble Apex Court in State of Punjab Vs. Baljinder Singh,
2019 INSC 1145. In the said case, the recovery was made from Qualis car 4, in
which the accused persons were travelling and the question regarding the
applicability of Section 50 NDPS Act, in case of such recovery came up for
4 Just like the recovery has been made from swift car in the present case.
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consideration before the Hon’ble Apex Court. Hon’ble Apex Court while
referring to the Constitution Bench Decision in State of Punjab Vs. Baldev
Singh (1999) 6 SCC 172 and while noting the decision in Dilip (supra)
categorically overruled the law laid down in Dilip (supra), while holding that
the law laid down in the said case is opposed to the law laid down by the
Constitution Bench in Baldev (supra). Paras 16 to 19 of the judgment are
reproduced as under :
“16. As regards applicability of the requirements Under Section 50 of the Act are
concerned, it is well settled that the mandate of Section 50 of the Act is confined
to “personal search” and not to search of a vehicle or a container or premises.
17. The conclusion (3) as recorded by the Constitution Bench in Para 57 of its
judgment in Baldev Singh clearly states that the conviction may not be based
“only” on the basis of possession of an illicit Article recovered from personal
search in violation of the requirements Under Section 50 of the Act but if there be
other evidence on record, such material can certainly be looked into.
In the instant case, the personal search of the Accused did not result in recovery of
any contraband. Even if there was any such recovery, the same could not be relied
upon for want of compliance of the requirements of Section 50 of the Act. But the
search of the vehicle and recovery of contraband pursuant thereto having stood
proved, merely because there was non-compliance of Section 50 of the Act as far
as “personal search” was concerned, no benefit can be extended so as to invalidate
the effect of recovery from the search of the vehicle. Any such idea would be
directly in the teeth of conclusion (3) as aforesaid.
18. The decision of this Court in Dilip‘s case, however, has not adverted to the
distinction as discussed hereinabove and proceeded to confer advantage upon the
Accused even in respect of recovery from the vehicle, on the ground that the
requirements of Section 50 relating to personal search were not complied with . In
our view, the decision of this Court in said judgment in Dilip‘s case is not correct
and is opposed to the law laid down by this Court in Baldev Singh and other
judgments.
19. Since in the present matter, seven bags of poppy husk each weighing 34 kgs.
were found from the vehicle which was being driven by Accused-Baljinder Singh
with the other Accused accompanying him, their presence and possession of the
contraband material stood completely established.”
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63. In view of the law laid down in Baldev (supra) and Baljinder (supra) as
well as other judgments cited above, it is held that the compliance of Section 50
NDPS Act is not mandatory in the present case, as the recovery was effected
from the bag being carried by the accused and not from the person of the
accused.
64. Based on the testimonies of witnesses PW3, PW6, and PW7, it has been
established that the CCL was duly served with notice under Section 50 of the
NDPS Act before his bodily search was conducted (during which no contraband
was found), and there was no violation of this mandatory provision.
Additionally, according to the observations in the referenced judgments,
compliance with Section 50 is not required for recovery from the Pitthu bag
carried by the CCL.
Discussion on the point of recovery of contraband
65. In the present case, the contraband was recovered from CCL and the
allegations are that the accused was also sitting as pillion rider on the
motorcycle with the CCL, but managed to escape when PW3 stopped the
motorcycle and apprehended the CCL. Therefore, in order to prove the
possession of the narcotic substance / Charas / Hashish from the accused, the
prosecution is required to prove two facts : –
1. That Charas / Hashish was recovered from CCL and
2. That the present accused was accompanying the CCL as a pillion rider on
the motorcycle, when the police stopped the motorcycle and apprehended
the CCL.
66. Both these requirements are discussed herein, as under :
Recovery from the CCL
67. As per prosecution case, PW3 was on duty at Anti Snatching Picket at 60
Foota Road, near HDFC Bank, Vishwas Nagar, on 28.04.2013, when at around
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6.15 a.m., he saw two persons coming on a motorcycle from the side of
Karkardooma Courts. When he signalled them to stop, the motorcycle was
stopped but the pillion rider fled from the spot. The driver of the motorcycle
was apprehended and found to be CCL, whereas the pillion rider, i.e. the present
accused namely Rohit, was arrested subsequently on 19.05.2013. The CCL who
was apprehended at the spot was found carrying a Pitthu bag and when PW3
checked the contents of the bag, he found that it contained Charas like
substance, hence, he sent the information to the PS, which was recorded vide
DD No.8A. PW6, to whom DD No.8A was marked alongwith PW7 Ct. Irfan
reached at the spot, where PW3 was found present alongwith the CCL and
motorcycle bearing no. DL3S-BC-9693. As stated earlier, PW6 gave notice
u/s.50 NDPS Act to the CCL, but as the CCL declined to avail his legal right,
hence his bodily search was conducted, in which no further contraband was
recovered. The Charas like substance found in the Pitthu bag being carried by
the CCL was weighed and found to 1.226 Kg from which two samples of 25
gms were drawn and marked as Mark A1 and A2. The remaining contraband
alongwith Pitthu bag was converted into a pullanda Mark A and all the three
pullandas were sealed by PW6 with the seal of VKY. Thereafter, the pullandas
were seized vide seizure memo Ex. PW6/B and the motorcycle was seized vide
memo Ex. PW6/C.
68. To prove the aforesaid recovery, the prosecution examined HC Tejpal as
PW3, SI Vipin Kumar as PW6 and Ct. Irfan as PW7. PW3 in his examination-
in-chief as regards the chance recovery made from the CCL, deposed as under :
“On 28.04.2013 | was posted at PS-Farsh Bazar as Ct. On that day, I was on duty in
the morning at anti snatching picket duty at 60 foota road near HDFC Bank, Vishwas
Nagar. At about 6.15 am two persons were coming on motorcycle from the side of
Karkardooma Court. I signaled them to stop by waiving my hands. The motorcycle
was stopped but the pillion rider fled from the spot. The driver of the motorcycle was
apprehended by me. In the meantime, Ct. Irfan along with SI Vipin kumar reached
there. I handed over the apprehended person to Sl Vipin Kumar. ….. The number of
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U/s.482 IPC, U/s.8(c)/20/29 NDPS Actthe motorcycle was DL-3SBC-9693. SI Vipin Kumar verified the engine number and
chasis number of the motorcycle from auto match and found that the number of the
motorcycle was fake and original number was DL-3SBC-9756. The person was also
carrying a bag on his shoulder (pithu bag). The bag was of dark gray colour, Sports
Ankler batch was affixed. SI Vipin opened the bag and checked the same. From inside
the bag, one black polythene was recovered. The polythene was checked and it was
found containing two packets wrapped by tape. Both packets were opened after
cutting the tape. One of the packet was having transparent polythene inside it and
other was having solid shape substance. On smelling the same, it appear as ‘charas’.”
69. The said witness was not cross-examined as regards the chance recovery
of the contraband or of the motorcycle with fake number plate.
70. The testimony of this witness is supported by PW7 Ct. Irfan, who
provided similar statement. This witness was also not cross-examined.
71. Additionally, PW6 SI Vipin Kumar gave a consistent statement,
especially concerning the alleged recovery from the CCL. This witness was also
not cross-examined. Further, PW5 proved that the actual registration number of
the recovered motorcycle was DL3S-BC-9756 and it was registered in the name
of Aarti. Copy of RC of the motorcycle is Ex. PW5/B and copy of Form XX is
Ex. PW5/A.
72. From the deposition of PW3, PW5, PW6 and PW7, which have remained
completely unchallenged, it stands proved beyond reasonable doubt that 1.226
Kg of Hashish was recovered from the possession of the CCL on 28.04.2013 at
about 6.10 a.m., when he was apprehended by PW3 in front of HDFC Bank,
Karkari Road, 60 Feet Road, Vishwas Nagar, Shahdara, Delhi, on a motorcycle
bearing fake number plate of DL3S-BC-9690, having actual registration no.
DL3S-BC-9756.
Whether the accused was accompanying the CCL?
73. As per the prosecution case, only one witness i.e. PW3 HC Tejpal had
seen the accused along with the CCL coming on the motorcycle and when he
got the motorcycle stopped by waiving his hand, the accused, who was
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allegedly sitting as a pillion rider, fled from the spot. PW3 HC Tejpal is,
therefore, star witness of the prosecution to prove that it was the accused and no
one else, who was accompanying the CCL on 28.04.2013, when they were
stopped by PW3 HC Tejpal near HDFC Bank, Vishwas Nagar, at 6.15 a.m. The
relevant portion of the testimony of this witness as regards the apprehension of
the CCL and escape of the accomplice being relevant is reproduced as under :
On 28.04.2013 | was posted at PS-Farsh Bazar as Ct. On that day, I was on duty in the
morning at anti snatching picket duty at 60 foota road near HDFC Bank, Vishwas
Nagar. At about 6.15 am two persons were coming on motorcycle from the side of
Karkardooma Court. I signaled them to stop by waiving my hands. The motorcycle
was stopped but the pillion rider fled from the spot. The driver of the motorcycle was
apprehended by me. In the meantime, Ct. Irfan along with SI Vipin kumar reached
there. I handed over the apprehended person to Sl Vipin Kumar.”
74. As stated earlier, as per the aforesaid deposition, it is clear that the
accomplice who was accompanying the CCL fled from the spot before the
arrival of PW7 Ct. Irfan and PW6 SI Vipin Kumar. The aforesaid deposition is
further supported by the contents of the rukka Ex. PW6/D and the contents of
FIR Ex. PW1/A, in which it is stated that when PW6 SI Vipin Kumar reached at
the spot, by that time, the accomplice of the CCL had already fled from the spot.
PW65 and PW76 also categorically deposed on the same lines.
75. Therefore, the only witness, who could have identified the present
accused as the same accomplice of the CCL, who had managed to flee from the
spot on 28.04.2013, is PW3 HC Tejpal. However, PW3 in his entire deposition
5 “On 28.04.2013, I was posted at PS Farsh Bazar as SI. On that day, I was on emergency duty and my duty
hours were between 8.00 PM to 8.00 AM. On receiving DD No.8A. I alongwith Ct Irfan reached at the spot
that is Karkari Road, Opposite HDFC Bank, Vishwas Nagar, Shahdara where I met with Ct Tej Pal. He
apprised me regarding facts of the happening. He stated to me that he was on anti snatching picket
checking. He further stated that the accused was stopped at the picket on suspicion. He was on Appache
motor cycle and his pillion rider fled away from the spot. He handed over the accused to me”
6 “In the intervening night of 27/28.04.13 l was posted at PS-Farsh Bazar as Ct. On that day I was on
emergency duty and my duty hours were from 8.00 pm to 8.00 am. At about 6.30 am on 28.04.2013 on
receiving DD no.8A | alongwith SI Vipin Kumar reached at the spot i.e. karkari road opposite HDFC Bank,
60 foota road, Vishwas Nagar, Shahdara where we met with Ct. Tejpal who produced the accused present in
the court today alongwith one Apache motorcycle bearing no. DL3SB-C-9693. Ct. Tejpal apprised us
regarding the facts of the happening. He stated to us that he was on anti-snatching picket checking and the
accused was stopped at the picket. On suspicion he further stated that accused was on Apache motorcycle
and his pillion rider fled away from the spot.”
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before the Court did not identify the accused as the same accomplice, who had
managed to flee and probably it is for this reason that Ld. Counsel for the
accused did not cross-examine this witness. Thus, the prosecution failed to get
the accused identified as the same accomplice, who had fled from the spot
through the oral testimony of PW3 HC Tejpal recorded on 03.05.2018 and
01.11.2023.
76. Further, it is noted that though, disclosure statement of the CCL was
recorded on 28.04.2013 by PW9 SI Arvind in the presence of PW3, in which he
disclosed the name of the accomplice as Rohit, but the said disclosure statement
was neither relied upon by PW3, nor exhibited by PW9 during their
examination-in-chief. It is probably for this reason that PW9 was not cross-
examined.
77. Further, PW9 in his examination-in-chief did not state that the name of
the present accused was disclosed by CCL. Rather, he stated that on 19.05.2013,
on the basis of secret information, the present accused was arrested. Therefore,
even from the examination-in-chief of PW9 SI Arvind, it is not clear as to how
he came to know that it was Rohit i.e. present accused , who was accompanying
the CCL on the day when CCL was apprehended by PW3. The secret
information so received on 19.05.2013 was also not recorded in any DD entry
and as such, there is nothing to show that the secret information was to the
effect that accused Rohit was the same person who had accompanied the CCL
on 28.04.2013 and had managed to flee when the CCL was apprehended
78. Further, even after the arrest of accused Rohit on 19.02013, his Test
Identification Parade in view of Section 9 of Indian Evidence Act was not
conducted by the IO / PW9. The Court is unable to understand as to how PW9
concluded that it was accused Rohit and no one else, who was accompanying
the CCL, when the CCL was apprehended.
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79. Therefore, even though the prosecution proved the recovery of the
contraband from the possession of the CCL, but it miserably failed to prove that
the present accused namely Rohit is the same person, who was accompanying
the CCL on 28.04.2013, when the CCL was apprehended and that it was the
present accused, who on that day managed to escape.
Discussion on proceedings u/s. 55 of NDPS Act
80. As per the prosecution case, PW6 SI Vipin, the first IO of the case, after
the recovery was effected from the possession of the CCL, seized the same vide
seizure memo Ex. PW6/B. Perusal of the seizure memo reveals that after the
recovery of the contraband was made from the CCL, the same was weighed and
it was found to be 1.226 Kg of Hashish. Two samples of 25 gms each were
drawn from the same and kept in two separate pullandas marked as Mark A1
and A2. The remaining contraband was kept in the remaining pulanda Mark A.
All the three pullandas were sealed with the seal of VKY by PW6 SI Vipin and
seal was handed over to PW3 Ct. Tejpal. The same were handed over to PW7
Ct. Irfan alongwith copy of seizure memo to be taken to the PS for compliance
u/s.55 NDPS Act. As per the deposition of PW7, he took the aforesaid three
pulandas, copy of seizure memo to PS Farsh Bazaar. As per deposition of PW10
Insp. Prabhu Dayal, who was posted as SHO PS Farsh Bazaar on 28.04.2013,
PW7 came to his office at around 10.30 p.m. and handed over to him three
pulandas Mark A, A1 and A2 bearing the seal of VKY. He in compliance of
Section 55 NDPS Act affixed his counter seal upon the same i.e. seal of PDS
and after confirming the FIR number from Duty Officer, he also mentioned the
FIR number on the parcels and seizure memo and also signed the sealed parcel
and copy of seizure memo. He further stated that he handed over the case
property to PW12 ASI Sunil Dutt, MHCM and also signed the entry made in
register no.19 by MHCM, Ex. PW12/A.
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81. Therefore, it is held that the provision of Section 55 NDPS Act were duly
complied with by PW10 by placing counter-seal of PDS on the three pullandas
Mark A, A1 and A2.
Compliance under section 52A NDPS Act
82. Admittedly, sampling in the present case was done at the spot and not
before the Magistrate as per section 52A NDPS Act. The question before the
court is whether the entire trial stand vitiated in view of the said non-
compliance?
83. In Mohan Lal (supra), Hon’ble Apex Court while discussing the ambit
and purport of section 52 A NDPS Act, observed as under:-
“16. Sub-section (3) of Section 52-A requires that the Magistrate shall as soon
as may be allow the application. This implies that no sooner the seizure is
effected and the contraband forwarded to the officer-in-charge of the police
station or the officer empowered, the officer concerned is in law duty-bound to
approach the Magistrate for the purposes mentioned above including grant of
permission to draw representative samples in his presence, which samples will
then be enlisted and the correctness of the list of samples so drawn certified by
the Magistrate. In other words, the process of drawing of samples has to be in
the presence and under the supervision of the Magistrate and the entire
exercise has to be certified by him to be correct.
17. The question of drawing of samples at the time of seizure which, more
often than not, takes place in the absence of the Magistrate does not in the
above scheme of things arise. This is so especially when according to Section
52-A(4) of the Act, samples drawn and certified by the Magistrate in
compliance with sub-sections (2) and (3) of Section 52-A above constitute
primary evidence for the purpose of the trial. Suffice it to say that there is no
provision in the Act that mandates taking of samples at the time of seizure.
That is perhaps why none of the States claim to be taking samples at the time
of seizure.
……..
19. […] There is in our opinion no manner of doubt that the seizure of the
contraband must be followed by an application for drawing of samples and
certification as contemplated under the Act. There is equally no doubt that the
process of making any such application and resultant sampling and
certification cannot be left to the whims of the officers concerned. The scheme
of the Act in general and Section 52-A in particular, does not brook any delay
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U/s.482 IPC, U/s.8(c)/20/29 NDPS Actin the matter of making of an application or the drawing of samples and
certification. While we see no room for prescribing or reading a time-frame
into the provision, we are of the view that an application for sampling and
certification ought to be made without undue delay and the Magistrate on
receipt of any such application will be expected to attend to the application
and do the needful, within a reasonable period and without any undue delay or
procrastination as is mandated by sub-section (3) of Section 52-A (supra). We
hope and trust that the High Courts will keep a close watch on the
performance of the Magistrates in this regard and through the Magistrates on
the agencies that are dealing with the menace of drugs which has taken
alarming dimensions in this country partly because of the ineffective and
lackadaisical enforcement of the laws and procedures and cavalier manner in
which the agencies and at times Magistracy in this country addresses a
problem of such serious dimensions.”
84. In Yusuf @ Asif (supra), Hon’ble Apex Court while setting aside
the conviction of appellants therein, relied upon Mohan Lal (supra) and
observed as under
“10. […] it would be relevant to refer to the provisions of Section 52A (2), (3)
and (4) of the NDPS Act. The aforesaid provisions provide for the procedure
and manner of seizing, preparing the inventory of the seized material,
forwarding the seized material and getting inventory certified by the
Magistrate concerned. It is further provided that the inventory or the
photographs of the seized substance and any list of the samples in connection
thereof on being certified by the Magistrate shall be recognized as the primary
evidence in connection with the offences alleged under the NDPS Act.
xxx xxx xxx
12. A simple reading of the aforesaid provisions, as also stated earlier, reveals
that when any contraband/narcotic substance is seized and forwarded to the
police or to the officer so mentioned under Section 53, the officer so referred
to in sub-section (1) shall prepare its inventory with details and the description
of the seized substance like quality, quantity, mode of packing, numbering and
identifying marks and then make an application to any Magistrate for the
purposes of certifying its correctness and for allowing to draw representative
samples of such substances in the presence of the Magistrate and to certify the
correctness of the list of samples so drawn.
13. Notwithstanding the defence set up from the side of the respondent in the
instant case, no evidence has been brought on record to the effect that the
procedure prescribed under sub-sections (2), (3) and (4) of Section 52A of the
NDPS Act was followed while making the seizure and drawing sample such as
preparing the inventory and getting it certified by the Magistrate. No evidence
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of the Magistrate and the list of the samples so drawn were certified by the
Magistrate. The mere fact that the samples were drawn in the presence of a
gazetted officer is not sufficient compliance of the mandate of sub-section (2)
of Section 52A of the NDPS Act.
xxx xxx xxx
15. In Mohanlal’s case, the apex court while dealing with Section 52A of the
NDPS Act clearly laid down that it is manifest from the said provision that
upon seizure of the contraband, it has to be forwarded either to the officer-in-
charge of the nearest police station or to the officer empowered under Section
53 who is obliged to prepare an inventory of the seized contraband and then to
make an application to the Magistrate for the purposes of getting its
correctness certified. It has been further laid down that the samples drawn in
the presence of the Magistrate and the list thereof on being certified alone
would constitute primary evidence for the purposes of the trial.
16. In the absence of any material on record to establish that the samples of the
seized contraband were drawn in the presence of the Magistrate and that the
inventory of the seized contraband was duly certified by the Magistrate, it is
apparent that the said seized contraband and the samples drawn therefrom
would not be a valid piece of primary evidence in the trial. Once there is no
primary evidence available, the trial as a whole stands vitiated.”
85. In a recent judgment titled as Narcotics Control Bureau Vs. Kashif
2024 INSC 10457, discussed the effect of non-compliance of section 52A
NDPS Act on the outcome of trial and summarized the observations in
para 39 as under:
“39. The upshot of the above discussion may be summarized as under:
(i) The provisions of NDPS Act are required to be interpreted keeping in mind
the scheme, object and purpose of the Act; as also the impact on the society as
a whole. It has to be interpreted literally and not liberally, which may
ultimately frustrate the object, purpose and Preamble of the Act.
(ii) While considering the application for bail, the Court must bear in mind the
provisions of Section 37 of the NDPS Act which are mandatory in nature.
Recording of findings as mandated in Section 37 is sine qua non is known for
granting bail to the accused involved in the offences under the NDPS Act.
(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
7 Judgment dated 20 December 2024.
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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.”
86. In a very recent judgment of Bharat Aambale (supra), Hon’ble
Apex Court answered the question whether non-compliance of section
52A NDPS Act leads to automatic acquittal. This was the only ground on
which the conviction upheld by Hon’ble High Court was under challenged
before the Apex court. Relevant paras indicating the issue directly before
the Hon’ble Court are as under:
87. “3. The only contention raised before us by the learned counsel
appearing for the appellant herein is that the conviction could be said to have
stood vitiated because of the non-compliance of Section 52A of the NDPS Act.
88. 4. The learned counsel appearing for the appellant placed strong
reliance on the decision of this Court rendered in the case of Union of India v.
Mohan Lal & Anr. reported in (2016) 3 SCC 379 to make good his submission
that non- compliance of Section 52A of the NDPS Act along with the relevant
rules, would vitiate the entire trial and the conviction.”
89. Hon’ble Apex Court discussed at length Mohan Lal (supra), Yusuf
@ Asif (supra) and several other judgments and discussed the outcome
thereof in the following paras:
“24.What is discernible from the various decisions referred to by us, is that
mere non-compliance of the procedure under Section 52A or the Standing
Order(s) / Rules thereunder will not by itself render the trial vitiated or into an
automatic acquittal. In all instances where this Court set-aside the order of
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FIR No.175/13, PS Farsh Bazaar
U/s.482 IPC, U/s.8(c)/20/29 NDPS Actconviction, it did so not solely for the reason that there was a violation of
Section 52A but because of and on the strength of the other discrepancies or
shortcomings in the prosecution’s case that rendered it doubtful.
26.Non-compliance or delayed compliance with the procedure prescribed
under Section 52A of the NDPS Act or the Rules / Standing Order(s)
thereunder may lead the court to draw an adverse inference against the
prosecution. However, no hard and fast rule can be laid down as to when such
inference may be drawn, and it would all depend on the peculiar facts and
circumstances of each case. Such delay or deviation from Section 52A of the
NDPS Act or the Standing Order(s) / Rules thereunder will not, by itself, be
fatal to the case of the prosecution, unless there are discrepancies in the
physical evidence which may not have been there had such compliance been
done. What is required is that the courts take a holistic and cumulative view of
the discrepancies that exist in the physical evidence adduced by the
prosecution and correlate or link the same with any procedural lapses or
deviations. Thus, whenever, there is any deviation or non-compliance of the
procedure envisaged under Section 52A, the courts are required to appreciate
the same keeping in mind the discrepancies that exist in the prosecution’s case.
In such instances of procedural error or deficiency, the courts ought to be
extra-careful and must not overlook or brush aside the discrepancies lightly
and rather should scrutinize the material on record even more stringently to
satisfy itself of the aspects of possession, seizure or recovery of such material
in the first place.
27.In such circumstances, particularly where there has been lapse on the part
of the police in either following the procedure laid down in Section 52A of the
NDPS Act or the prosecution in adequately proving compliance of the same, it
would not be appropriate for the courts to resort to the statutory presumption
of commission of an offence from the possession of illicit material under
Section 54 of the NDPS Act, unless the court is otherwise satisfied as regards
the seizure or recovery of such material from the accused persons from the
other material on record. Similarly, irrespective of any failure to follow the
procedure laid under Section 52A of the NDPS Act, if the other material on
record adduced by the prosecution inspires confidence and satisfies the court
regarding both the recovery and possession of the contraband from the
accused, then even in such cases, the courts can without hesitation proceed for
conviction notwithstanding any procedural defect in terms of Section 52A of
the NDPS Act.
30.Thus, from above it is clear that the procedure prescribed by the Standing
Order(s) / Rules in terms of Section 52A of the NDPS Act is only intended to
guide the officers and to ensure that a fair procedure is adopted by the officer-
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U/s.482 IPC, U/s.8(c)/20/29 NDPS Actin-charge of the investigation, and as such what is required is substantial
compliance of the procedure laid therein. We say so because, due to varying
circumstances, there may be situations wherein it may not always be possible
to forward the seized contraband immediately for the purpose of sampling.
This could be due to various factors, such as the sheer volume of the
contraband, the peculiar nature of the place of seizure, or owing to the
volatility of the substance so seized that may warrant slow and safe handling.
There could be situations where such contraband after being sampled cannot
be preserved due to its hazardous nature and must be destroyed forthwith or
vice-verse where the nature of the case demands that they are preserved and
remain untouched. Due to such multitude of possibilities or situations, neither
can the police be realistically expected to rigidly adhere to the procedure laid
down in Section 52A or its allied Rules / Orders, nor can a strait-jacket
formula be applied for insisting compliance of each procedure in a specified
timeline to the letter, due to varying situations or requirements of each case.
Thus, what is actually required is only a substantial compliance of the
procedure laid down under Section 52A of the NDPS Act and the Standing
Order(s) / Rules framed thereunder, and any discrepancy or deviation in the
same may lead the court to draw an adverse inference against the police as per
the facts of each and every case. When it comes to the outcome of trial, it is
only after taking a cumulative view of the entire material on record including
such discrepancies, that the court should proceed either to convict or acquit the
accused. Non- compliance of the procedure envisaged under Section 52A may
be fatal only in cases where such non-compliance goes to the heart or root of
the matter. In other words, the discrepancy should be such that it renders the
entire case of the prosecution doubtful, such as instances where there are
significant discrepancies in the colour or description of the substance seized
from that indicated in the FSL report as was the case in Noor Aga (supra), or
where the contraband was mixed in and stored with some other commodity
like vegetables and there is no credible indication of whether the narcotic
substance was separated and then weighed as required under the Standing
Order(s) or Rules, thereby raising doubts over the actual quantity seized as
was the case in Mohammed Khalid (supra), or where the recovery itself is
suspicious and uncorroborated by any witnesses such as in Mangilal (supra),
or where the bulk material seized in contravention of Section 52A was not
produced before the court despite being directed to be preserved etc. These
illustrations are only for the purposes of bringing clarity on what may
constitute as a significant discrepancy in a given case, and by no means is
either exhaustive in nature or supposed to be applied mechanically in any
proceeding under the NDPS Act. It is for the courts to see what constitutes as a
significant discrepancy, keeping in mind the peculiar facts, the materials on
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U/s.482 IPC, U/s.8(c)/20/29 NDPS Actrecord and the evidence adduced. At the same time, we may caution the courts,
not to be hyper-technical whilst looking into the discrepancies that may exist,
like slight differences in the weight, colour or numbering of the sample etc.
The Court may not discard the entire prosecution case looking into such
discrepancies as more often than not an ordinarily an officer in a public place
would not be carrying a good scale with him, as held in Noor Aga (supra). It is
only those discrepancies which particularly have the propensity to create a
doubt or false impression of illegal possession or recovery, or to overstate or
inflate the potency, quality or weight of the substance seized that may be
pertinent and not mere clerical mistakes, provided they are explained properly.
Whether, a particular discrepancy is critical to the prosecution’s case would
depend on the facts of each case, the nature of substance seized, the quality of
evidence on record etc.
31.At the same time, one must be mindful of the fact that Section 52A of the
NDPS Act is only a procedural provision dealing with seizure, inventory, and
disposal of narcotic drugs and psychotropic substances and does not
exhaustively lay down the evidentiary rules for proving seizure or recovery,
nor does it dictate the manner in which evidence is to be led during trial. It in
no manner prescribes how the seizure or recovery of narcotic substances is to
be proved or what can be led as evidence to prove the same. Rather, it is the
general principles of evidence, as enshrined in the Evidence Act that governs
how seizure or recovery may be proved.
32.Thus, the prosecution sans the compliance of the procedure under Section
52A of the NDPS Act will not render itself helpless but can still prove the
seizure or recovery of contraband by leading cogent evidence in this regard
such as by examining the seizing officer, producing independent witnesses to
the recovery, or presenting the original quantity of seized substances before
the court. The evidentiary value of these materials is ultimately to be assessed
and looked into by the court. The court should consider whether the evidence
inspires confidence. The court should look into the totality of circumstances
and the credibility of the witnesses, being mindful to be more cautious in their
scrutiny where such procedure has been flouted. The cumulative effect of all
evidence must be considered to determine whether the prosecution has
successfully established the case beyond reasonable doubt as held in Noor Aga
(supra).
33.Even in cases where there is non-compliance with the procedural
requirements of Section 52A, it does not necessarily vitiate the trial or warrant
an automatic acquittal. Courts have consistently held that procedural lapses
must be viewed in the context of the overall evidence. If the prosecution can
otherwise establish the chain of custody, corroborate the seizure with credible
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U/s.482 IPC, U/s.8(c)/20/29 NDPS Acttestimony, and prove its case beyond reasonable doubt, the mere non-
compliance with Section 52A may not be fatal. The emphasis must be on
substantive justice rather than procedural technicalities, and keeping in mind
that the salutary objective of the NDPS Act is to curb the menace of drug
trafficking.
90.The Hon’ble Court finally summarized the law on the subject in para 50 as
under:
“50.We summarize our final conclusion as under: –
(I) Although Section 52A is primarily for the disposal and destruction of
seized contraband in a safe manner yet it extends beyond the immediate
context of drug disposal, as it serves a broader purpose of also introducing
procedural safeguards in the treatment of narcotics substance after seizure
inasmuch as it provides for the preparation of inventories, taking of
photographs of the seized substances and drawing samples therefrom in the
presence and with the certification of a magistrate. Mere drawing of samples
in presence of a gazetted officer would not constitute sufficient compliance of
the mandate under Section 52A sub-section (2) of the NDPS Act.
(II) Although, there is no mandate that the drawing of samples from the seized
substance must take place at the time of seizure as held in Mohanlal (supra),
yet we are of the opinion that the process of inventorying, photographing and
drawing samples of the seized substance shall as far as possible, take place in
the presence of the accused, though the same may not be done at the very spot
of seizure.
(III) Any inventory, photographs or samples of seized substance prepared in
substantial compliance of the procedure prescribed under Section 52A of the
NDPS Act and the Rules / Standing Order(s) thereunder would have to be
mandatorily treated as primary evidence as per Section 52A sub-section (4) of
the NDPS Act, irrespective of whether the substance in original is actually
produced before the court or not.
(IV) The procedure prescribed by the Standing Order(s) / Rules in terms of
Section 52A of the NDPS Act is only intended to guide the officers and to see
that a fair procedure is adopted by the officer in-charge of the investigation,
and as such what is required is substantial compliance of the procedure laid
therein.
(V) Mere non-compliance of the procedure under Section 52A or the Standing
Order(s) / Rules thereunder will not be fatal to the trial unless there are
discrepancies in the physical evidence rendering the prosecution’s case
doubtful, which may not have been there had such compliance been done.
Courts should take a holistic and cumulative view of the discrepancies that
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FIR No.175/13, PS Farsh Bazaar
U/s.482 IPC, U/s.8(c)/20/29 NDPS Act
may exist in the evidence adduced by the prosecution and appreciate the same
more carefully keeping in mind the procedural lapses.
(VI) If the other material on record adduced by the prosecution, oral or
documentary inspires confidence and satisfies the court as regards the
recovery as-well as conscious possession of the contraband from the accused
persons, then even in such cases, the courts can without hesitation proceed to
hold the accused guilty notwithstanding any procedural defect in terms of
Section 52A of the NDPS Act. (VII) Non-compliance or delayed compliance
of the said provision or rules thereunder may lead the court to drawing an
adverse inference against the prosecution, however no hard and fast rule can
be laid down as to when such inference may be drawn, and it would all depend
on the peculiar facts and circumstances of each case.
(VIII) Where there has been lapse on the part of the police in either following
the procedure laid down in Section 52A of the NDPS Act or the prosecution in
proving the same, it will not be appropriate for the court to resort to the
statutory presumption of commission of an offence from the possession of
illicit material under Section 54 of the NDPS Act, unless the court is otherwise
satisfied as regards the seizure or recovery of such material from the accused
persons from the other material on record.
(IX) The initial burden will lie on the accused to first lay the foundational facts
to show that there was non-compliance of Section 52A, either by leading
evidence of its own or by relying upon the evidence of the prosecution, and
the standard required would only be preponderance of probabilities.
(X) Once the foundational facts laid indicate non-compliance of Section 52A
of the NDPS Act, the onus would thereafter be on the prosecution to prove by
cogent evidence that either (i) there was substantial compliance with the
mandate of Section 52A of the NDPS Act OR (ii) satisfy the court that such
non-compliance does not affect its case against the accused, and the standard
of proof required would be beyond a reasonable doubt.” (emphasis supplied)
91. Though, in the present case there is no compliance of section 52A
NDPS Act, as the sampling proceedings were done by the IO at the spot,
however, in view of the judgment in Kashif (supra) and Bhart Ambale
(supra), the said fact by itself does not vitiate the trial. As held by the
Hon’ble Court in absence of compliance u/s 52A NDPS Act the onus is
upon the prosecution to prove by cogent evidence that such non-
compliance does not affect its case against the accused, and the standard
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FIR No.175/13, PS Farsh Bazaar
U/s.482 IPC, U/s.8(c)/20/29 NDPS Act
of proof required would be beyond a reasonable doubt.
92. Moreover, as per FSL report Ex. A1 (admitted by accused on
06.10.2017), three parcels Mark A, A1 and A2 were received at FSL and
were examined by Dr. Kanak Lata Verma, Senior Scientific Officer
(Chemistry) FSL Rohini. Parcel Mark A was found bearing five seals of
VKY and three seals of PDS. Parcel Mark A1 was found bearing four
seals of VKY and two seals of PDS and Parcel Mark A2 was found
bearing four seals of VKY and two seals of PDS. Thus, as per the FSL
result Ex. A1, the samples of the case property (two pullandas), as well as
case property, which were sealed at the spot with the seal of VKY and
were counter sealed by SHO Insp. Prabhu Dayal (PW10) with his seal of
PDS, were received in the same condition with all the seals intact in the
FSL on 23.05.2013.
93. It may be noted that the case property in original as primary
evidence was produced during the testimony of PW6 and opened in the
Court. The pullandas Mark A, A1 and A2, were found to be bearing the
seal of YS. The said portion of the testimony is reproduced as under:
“At this stage MHC(M) produces one sealed envelope sealed with the seal of
YS,FSL No.2013/C-4254 A-2 Ex P-3 is also written with red pen. The details
of the case is also written. The seal is broken and from inside the envelope one
Khaki envelope is taken out. The particulars of the present case is written on
the envelope. Seal impression of VKY and PDS is also seen affixed on the
sides of the paper slip, pasted on the envelope. A-2 is also marked on the
envleope. The witness identified his signatures at point A on the pasted paper.
The envelope is opened and from inside the envelope one transparent
containing some blackish and brownish material is taken out. A-2 is also
written on the transparent polythene. The same is shown to the witness and the
witness identified the same which was taken as sample from the recovered
contraband. The sample alongwith polythene is Ex PW6/Article-1.
At this stage MHC(M) produces one another sealed envelope sealed with the
seal of YS,FSL No.2013/C-4254 A-1 Ex P-2 is also written with red pen. The
details of the case is also written. The seal is broken and from inside the
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FIR No.175/13, PS Farsh Bazaar
U/s.482 IPC, U/s.8(c)/20/29 NDPS Actenvelope one Khaki envelope is taken out. The particulars of the present case
is written on the envelope. Seal impression of VKY and PDS is also seen
affixed on the sides of the paper slip, pasted on the envelope. A-lis also
marked on the envelope. The witness identified his signatures at point A on the
pasted paper. The envelope is opened and from inside the envelope one
transparent containing some blackish and brownish material is taken out. A-1
is also written on the transparent polythene. The same is shown to the witness
and the witness identified the same which was taken as sample from the
recovered contraband. The sample alongwith polythene is Ex PW6/Article-2.
At this stage MHC(M) produces one big envelope sealed with the seal VS.
Sealed is broken. Envelope is opened and one dark grey colour, Pithu bag is
taken sports Ankler batch is affixed on the bag. The zip of the bag is opened
and one black colour polythene (Wazani) is taken out. The black colour
polythene is opened and from inside the same broken rectangle slabs of black
and brown colour alongwith transparent polythene and pieces of brown tape is
taken out. The envelope also contains one torn cloth pulanda having a paper
slip attached with the same, having sealed impression of VKY and PDS. The
particular of present case is also written on the paper slip and A is also written
on the paper slip. The particular of present case is also written on the torn
cloth. The witness identified his signatures on the paper slip at point A. The
case property is shown to the witness and the witness identified the same
which was recovered from accused Sajan. The rectangular broken slabs
alongwith 50 transparent polythene Zipper) and pieces of brown tape is
collectively is Ex PW6/Article-3.
94. The case property was sealed by the FSL expert after examination
with the seal of KLV FSL DELHI, however, when the case property was
produced before the Court, it was found to be bearing the seal of YS and
no clarification came forth either in the testimony of PW6 or in the
deposition of PW12 ASI Sunil Dutt, MHCM, to explain as to why the case
property produced before the Court did not bear the seal of KLV FSL
DELHI and why the seal of YS was found affixed on all the pullandas.
95. Therefore, in the opinion of the Court, the case property, which was
sealed at the spot with the seal of VKY by PW6 SI Vipin and was further
sealed at the PS by SHO Insp. Prabhu Dayal with the seal of PDS was
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U/s.482 IPC, U/s.8(c)/20/29 NDPS Act
found intact by Ms. Kanak Lata Verma, Senior Scientific Officer
(Chemistry) FSL on the three pullandas Mark A, A1 and A2, which she
analysed in terms of report Ex. A1 and the remaining pulanda / Parcel was
not found intact bearing the seal of KLV FSL DELHI, when the same was
produced before the Court and exhibited as Ex. PW6/Article-1, Article-2
& Article-3 on 02.03.2019.
96. Accordingly, the prosecution failed to prove that non-compliance
of section 52A NDPS Act does not affect its case against the accused, as
the case property seized at the spot could not be produced as primary
evidence before the Court with the seals intact in terms of the FSL result
Ex. A1.
Whether recovered substance is Hashish?
97. The case of the prosecution is that the substance, which was recovered
from the possessions of the accused persons is Hashish.
98. In order to prove this fact, the prosecution relied upon FSL result dated
16.07.2013 prepared by Dr. Kanak Lata Verma, Senior Scientific Officer
(Chemistry), FSL, Rohini. The said report was admitted by the accused u/s.294
Cr.P.C. 06.10.2017 as Ex. A1.
99. As per the said report dated 16.07.2013, three sealed pullandas were
received in the FSL on 23.05.2013, which were examined by Dr. Kanak Lata
Verma from 05.06.2013 to 16.07.2013. During examination, it was found that
the three pullandas were bearing Marks A, A1 and A2, which is in line with the
marks given by the IO at the spot. The said three parcels were found to be
bearing the seal of VKY and PDS and were found containing “damp greenish
brown semi-solid resinous material”, weighing 1145, 27 and 26.43 gms
respectively. On physical, microscopic, chemical and TLC examination, Ex. ‘1’
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was found to contain Charas (cannabis). The result of the examination is
reproduced as undere :
“On Physical, Microscopic, Chemical & TLC examination, Exhibits ‘1’ was found to
be Charas (Cannabis).”
100. It may be noted that as per the FSL report, there is no Ex. ‘1’, as the said
number was not given to any of the three pullandas received in the FSL. The
three exhibits which were given by the examiner are Exs. A, A1 and A2. There
is no Ex. ‘1’. Therefore, as per FSL result dated 16.07.2017, which was
admitted by the accused, it is not clear as to whether Exs. A, A1 and A2
corresponding to Pullanda A, A1 and A2 respectively contained substance,
which on physical, microscopic, chemical and TLC examination was found to
be Charas. Thus, in the opinion of the Court, the prosecution failed to prove that
the substance recovered from the CCL was Charas.
Videography and Photography not done during the proceedings and CCTV
footage not produced
101. It was submitted that, though, the spot, where the CCL was apprehended
is in front of a bank, located in commercial as well as residential area of
Vishawas Nagar, Shahdara, neither CCTV footage of the spot was collected,
nor videography or photography of the proceedings was conducted by the
investigating agency.
102. It is true that there is no videography or photography of the recovery
proceedings which were conducted in 2013.
103. The question before the court is whether the deposition of recovery
witnesses, who have corroborated each other in material particulars, can be
overlooked or disbelieved, merely because they did not take photographs or
video at the time of search and seizure?
104. Though the videography and photography of the search and seizure
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U/s.482 IPC, U/s.8(c)/20/29 NDPS Act
proceedings is no doubt desirable, but its absence cannot be a ground to
disbelieve the deposition of the recovery witnesses.
105. Further, it may be noted that as per the defence taken by the accused in
statement u/s.313 Cr.P.C., he stated that he has been falsely implicated in the
present case because of enmity of the family members of the CCL.
106. That as per the prosecution case, the present accused, who was sitting as a
pillion rider on a motorcycle bearing no. DL3SB-C-9693, being driven by
the CCL, managed to escape from the spot, when PW3 HC Tejpal signalled
to stop the said motorcycle. Thus, as per the prosecution case, before the
recovery and seizure of contraband from CCL, the present accused had
already fled the spot, therefore, videography or photography of the search
and seizure proceedings would as such have not shown the presence of the
accused at the spot.
107. Accordingly, the absence of videography and photography at the spot
during recovery proceedings, does not make much difference in the facts of
the present case. However, as far as the CCTV footage is concerned, it may
be noted that the failure of the investigating agency to produce the CCTV
footage has gone in favour of the present accused as in absence of CCTV
footage and further in absence of any evidence to establish the identity of the
present accused as the same person who had fled from the spot on
28.04.2013, when the CCL was apprehended and the recovery of the
contraband was made, the prosecution failed to establish the involvement of
the present accused in the alleged offences punishable u/s.482 IPC and
Section 8(c)/20/29 NDPS Act.
Discussions on non-joining of the public witnesses
108. During course of arguments, Ld. Defence Counsel submitted that the
prosecution case is highly doubtful as no public witness has been joined
DLSH010006842015 Page 51 of 57
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State Vs. Rohit
FIR No.175/13, PS Farsh Bazaar
U/s.482 IPC, U/s.8(c)/20/29 NDPS Act
during the entire investigation and the prosecution case solely rests on the
testimonies of police witnesses who are not reliable and creditworthy being
interested police witnesses.
109. Admittedly, in the present case no public or independent witness has been
joined during course of the investigation, however it is clear from the
testimonies of the prosecution witnesses that PW6 SI Vipin Kumar, IO that he
made sincere efforts to join public witnesses, but none agreed.
110. In this regard, PW6 deposed that he approached passerby at the spot to
join the investigation, but none agreed to join investigation.
111. The witness on this aspect deposed as under :-
“On 28.04.2013, I was posted at PS Farsh Bazar as SI. On that day, I was on
emergency duty and my duty hours were between 8.00 PM to 8.00 AM. On
receiving DD No.8A. I alongwith Ct Irfan reached at the spot that is Karkari
Road, Opposite HDFC Bank, Vishwas Nagar, Shahdara where I met with Ct
Tej Pal. He apprised me regarding facts of the happening. He stated to me that
he was on anti snatching picket checking. He further stated that the accused
was stopped at the picket on suspicion. He was on Appache motor cycle and
his pillion rider fled away from the spot. He handed over the accused to me
who disclosed his name as Sajan alongwith one Apache Motor cycle bearing
No. DL 3SB C-9693. I verified the engine number and chasis Number of the
motor cycle from Auto match and found that the number of the motor cycle
was fake. And the original No. was DL 3SB C-9756. The person was carrying
a bag ( Pithu bag) on his shoulder. The bag was of dark grey colour, sports
Ankler batch was affixed on the bag. I opened the bag, after opening the zip
and checked the same and it was found containing one black polythene having
something in it. The black polythene was also checked by me and after
opening it and it was found containing two packets wrapped by tape, one was
small an other was big. Both the packets were opened one by one, after cutting
the tape. And, it was containing black and brown colour solid substance. The
black colour polythene was also containing some transparent polythene
( zipper). I counted the the transparent polythene and it was 50 in number. On
physical appearance and smelling the brown and black colour substance
appeared to be Charas. I directed Ct Irfan to procured the narcotics field
detection kit and digital weighing machine from the P.S. Ct Irfan left the spot
for the P.S. In the meantime I requested 4-5 passerby to join the investigation
after disclosing the facts to them but none agreed and went away without
DLSH010006842015 Page 52 of 57
SC No.155/16
State Vs. Rohit
FIR No.175/13, PS Farsh Bazaar
U/s.482 IPC, U/s.8(c)/20/29 NDPS Actdisclosing their names and addresses, showing their genuine concerns. Due
paucity of time no notice was served to the passer by who did not join the
investigation.”
112. Thus, once it has come on record that public witness could not be joined
despite efforts having been made, then non joining of independent witness is not
fatal to the prosecution case. In this regard, this court is supported by the case
law i.e. Ajmer Singh vs. State of Haryana reported as 2010 (2) SCR 785. The
relevant para reads as under:-
“It is true that a charge under the Act is serious and carries onerous consequences.
The minimum sentence prescribed under the Act is imprisonment of 10 years and fine.
In this situation, it is normally expected that there should be independent evidence to
support the case of the prosecution. However, it is not an inviolable rule. Therefore, in
the peculiar circumstances of this case, we are satisfied that it would be travesty of
justice, if the appellant is acquitted merely because no independent witness has been
produced. We cannot forget that it may not be possible to find independent witness at
all places, at all times. The obligation to take public witnesses is not absolute. If after
making efforts which the court considered in the circumstances of the case reasonable,
the police officer is not able to get public witnesses to associate with the raid or arrest
of the culprit, the arrest and the recovery made would not be necessarily vitiated. The
court will have to appreciate the relevant evidence and will have to determine whether
the evidence of the police officer was believable after taking due care and caution in
evaluating their evidence.”
113. It is well settled law that the evidence of police official cannot be doubted
unless previous enmity between the accused and the police officials is shown. In
Sunil Tomar vs. State of Punjab, Criminal Appeal no. 1690-1691 of 2012
decided on 19.10.12, it was held :-
“In a case of this nature, it is better if prosecution examines at least one independent
witness to corroborate its case. However, in the absence of any animosity between the
accused and official witnesses, there is nothing wrong in relying upon their
testimonies and accepting the documents placed for basing conviction. After taking
into account the entire material relied upon by the prosecution, there is no animosity
established on the part of the official witnesses by the accused in defence and we also
did not find any infirmity in the prosecution case.”
DLSH010006842015 Page 53 of 57
SC No.155/16
State Vs. Rohit
FIR No.175/13, PS Farsh Bazaar
U/s.482 IPC, U/s.8(c)/20/29 NDPS Act
114. Furthermore, the police officials are considered to be equally competent
and reliable witnesses and their testimony can be relied upon even without
corroboration by an independent witness if same is cogent and reliable. In
Rohtas vs. State of Haryana, JT 2013(8) SC 181, Hon’ble Supreme Court held
that :-
‘Where all the witnesses are from police department, their depositions must be subject
to strict scrutiny. However, the evidence of police officials cannot be discarded merely
on the ground that they belong to the police force and either interested in investigating
or the prosecuting agency’.
115. Further, it is also not uncommon that these days people are generally
reluctant to become part of investigation. In this regard, the Hon’ble High Court
in the case of Bheru Lal vs, State while observing that recovery cannot be
doubted for the reason of non joining of public witness held as under:-
“19. Dealing with a similar contention in ‘Ram Swaroop v. State (Govt. NCT) of
Delhi‘, 2013(7) SCALE 407, where the alleged seizure took place at a crowded place
yet no independent witness could be associated with the seizure, the Apex Court inter
alia observed as under:
“7. ….We may note here with profit there is no absolute rule that police officers cannot
be cited as witnesses and their depositions should be treated with suspect. In this
context we may refer with profit to the dictum in State of U.P. v. Anil Singh, 1988
Supp SCC 686, wherein this Court took note of the fact that generally the public at
large are reluctant to come forward to depose before the court and, therefore, the
prosecution case cannot be doubted for non-examining the independent witnesses.”
116. Thus, in view of the settled legal position, the testimony of the police
officials examined in the instant case cannot be seen with suspicion merely for
the reason of non joining of independent witness as it is clear that sufficient
efforts were made by the PW-6 SI Vipin Kumar to join investigation.
Furthermore, the testimonies of the police officials do not suffer from any
material contradiction to doubt their version. Moreover, no animosity between
the accused and the police officials has been pointed out. Therefore, even
DLSH010006842015 Page 54 of 57
SC No.155/16
State Vs. Rohit
FIR No.175/13, PS Farsh Bazaar
U/s.482 IPC, U/s.8(c)/20/29 NDPS Act
otherwise there is no reason to disbelieve the testimonies of police officials
regarding non joining of public witnesses.
117. Therefore, the non-joining of public witnesses despite sufficient efforts
having been made by the investigating agency cannot be said to be fatal to the
prosecution case.
Presumption
118. Established jurisprudence dictates that, only once possession is
demonstrated beyond reasonable doubt, the burden of proof shifts to the
individual asserting a lack of conscious possession or awareness of
concealment. Section 35 of the Act codifies this principle through a statutory
presumption in law. Similarly, Section 54 permits a presumption arising from
the possession of illicit items.
119. Hon’ble Apex Court in Mohan Lal Vs. State of Rajasthan Crl. (2015)
6 SCC 222 dealt with this aspect in detail and held as under:
12. Coming to the context of Section 18 of the NDPS Act, it would have a
reference to the concept of conscious possession. The legislature while
enacting the said law was absolutely aware of the said element and that the
word “possession” refers to a mental state as is noticeable from the language
employed in Section 35 of the NDPS Act. The said provision reads as follows:
35. Presumption of culpable mental state.-
(1) In any prosecution for an offence under this Act which requires a
culpable mental state of the accused, the Court shall presume the
existence of such mental state but it shall be a defence for the accused
to prove the fact that he had no such mental state with respect to the act
charged as an offence in that prosecution.
Explanation.-In this section “culpable mental state” includes intention,
motive, knowledge, of a fact and belief in, or reason to believe, a fact.
(2) For the purpose of this section, a fact is said to be proved only when
the Court believes it to exist beyond a reasonable doubt and not merely
when its existence is established by a preponderance of probability.
On a perusal of the aforesaid provision, it is plain as day that it includes
knowledge of a fact. That apart, Section 35 raises a presumption as to
DLSH010006842015 Page 55 of 57
SC No.155/16
State Vs. Rohit
FIR No.175/13, PS Farsh Bazaar
U/s.482 IPC, U/s.8(c)/20/29 NDPS Act
knowledge and culpable mental state from the possession of illicit articles. The
expression “possess or possessed” is often used in connection with statutory
offences of being in possession of prohibited drugs and contraband substances.
Conscious or mental state of possession is necessary and that is the reason for
enacting Section 35 of the NDPS Act.
XXXXX
16. From the aforesaid exposition of law it is quite vivid that the term
“possession” for the purpose of Section 18 of the NDPS Act could mean
physical possession with animus, custody or dominion over the prohibited
substance with animus or even exercise of dominion and control as a result of
concealment. The animus and the mental intent which is the primary and
significant element to show and establish possession. Further, personal
knowledge as to the existence of the “chattel” i.e. the illegal substance at a
particular location or site, at a relevant time and the intention based upon the
knowledge, would constitute the unique relationship and manifest possession.
In such a situation, presence and existence of possession could be justified, for
the intention is to exercise right over the substance or the chattel and to act as
the owner to the exclusion of others. In the case at hand, the Appellant, we
hold, had the requisite degree of control when, even if the said narcotic
substance was not within his physical control at that moment. To give an
example, a person can conceal prohibited narcotic substance in a property and
move out thereafter. The said person because of necessary animus would be in
possession of the said substance even if he is not, at the moment, in physical
control. The situation cannot be viewed differently when a person conceals and
hides the prohibited narcotic substance in a public space. In the second
category of cases, the person would be in possession because he has the
necessary animus and the intention to retain control and dominion. As the
factual matrix would exposit, the accused-Appellant was in possession of the
prohibited or contraband substance which was an offence when the NDPS Act
came into force. Hence, he remained in possession of the prohibited substance
and as such offence Under Section 18 of the NDPS Act is made out. The
possessory right would continue unless there is something to show that he had
been divested of it. On the contrary, as we find, he led to discovery of the
substance which was within his special knowledge, and, therefore, there can be
no scintilla of doubt that he was in possession of the contraband article when
the NDPS Act came into force. To clarify the situation, we may give an
example. A person had stored 100 bags of opium prior to the NDPS Act
coming into force and after coming into force, the recovery of the possessed
article takes place. Certainly, on the date of recovery, he is in possession of the
contraband article and possession itself is an offence. In such a situation, the
DLSH010006842015 Page 56 of 57
SC No.155/16
State Vs. Rohit
FIR No.175/13, PS Farsh Bazaar
U/s.482 IPC, U/s.8(c)/20/29 NDPS Act
accused-Appellant cannot take the plea that he had committed an offence
Under Section 9 of the Opium Act and not Under Section 18 of the NDPS
Act.”
120. In Noor Aga v. State of Punjab and Anr. (2008) 16 SCC 417, Hon’ble
Court noted Section 35 of the NDPS Act which provides for presumption of
culpable mental state and further noted that it also provides that the accused
may prove that he had no such mental state with respect to the act charged as
an offence under the prosecution. The Court also referred to Section 54 of
the NDPS Act which places the burden to prove on the accused as regards
possession of the contraband articles on account of the same satisfactorily.
121. Upon reviewing the evidence, particularly the failure of the prosecution
to establish that accused Rohit was the same person who had fled from the
spot when the CCL was apprehended with charas/hashish, the prosecution
has failed to prove the foundational facts against the accused beyond
reasonable doubt. Further, the prosecution failed to prove that the primary
evidence i.e. recovered contraband was produced before the Court with the
seals intact as discussed above. The prosecution also failed to prove that the
recovered substance was Charas / Hashish and, therefore, a ‘narcotic drug’ as
defined in Section 2 (xiv). The presumption under sections 35 and 54 of the
NDPS Act cannot be raised in this case against the accused persons, as the
recovery of contraband could not be established beyond reasonable doubt.
Conclusion
122. The prosecution failed to prove beyond reasonable doubt accused Rohit
was the same person who had fled from the spot when the CCL was
apprehended with charas/hashish and as a consequence thereof the recovery
of the contraband could not be established from the possession of the present
accused. Further, the prosecution failed to prove that the primary evidence
i.e. recovered contraband was produced before the Court with the seals intact
DLSH010006842015 Page 57 of 57
SC No.155/16
State Vs. Rohit
FIR No.175/13, PS Farsh Bazaar
U/s.482 IPC, U/s.8(c)/20/29 NDPS Act
i.e. the seal of FSL, as discussed above. The prosecution also failed to prove
that the recovered substance was Charas / Hashish and, therefore, a ‘narcotic
drug’ as defined in Section 2 (xiv). Hence, the presumption under section 35
and 54 NDPS Act, cannot be raised against the accused to the effect that he
had the requisite mental state (mens rea) to commit the offence of being in
possession of narcotic drug / charas-hashish without any authority or license
to be in possession of the same.
Order
123. Accordingly, accused Rohit is acquitted of the offences punishable
under section 482 IPC and U/s. 8(c)/20/29 NDPS Act
124. Accused is directed to furnish personal bond under section 437A
Cr.P.C. in sum of Rs.10,000/- today and furnish one surety of equal
amount within one week from today.
125. File be consigned to record room after due compliance.
Announced in the open Court
On 19th day of April 2025.
(S.P.S. Laler)
Special Judge (NDPS Act)
District Shahdara
Karkardooma Courts, Delhi
Digitally signed
SAURABH by SAURABH
PARTAP SINGH
PARTAP LALER
SINGH Date:
LALER 2025.04.19
16:49:00 +0530SAURABH
PARTAP
SINGH
LALERDigitally signed
by SAURABH
PARTAP
SINGH LALER
Date:
2025.04.19
16:45:48
+0530
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