Delhi District Court
State vs Shekhar Kumar Verma on 22 July, 2025
IN THE COURT OF SH. DHIRENDRA RANA
ADDL. SESSIONS JUDGE: SPECIAL JUDGE (NDPS), NORTH
DISTRICT, ROHINI COURTS : DELHI
In the matter of:-
(Sessions Case No. 265/2020)
CNR No. DLNT01-006635-2020
FIR No. 315/2020
Police Station S. P. Badli
Charge sheet filed 22/61/85 NDPS Act
Under Section
Charge framed Under 22 NDPS Act
Section
Shekhar Kumar Verma s/o Sh. Dheeraj
State Vs. Kumar Verma r/o Flat No. 261, Block
A, Pocket 3, DDA Flat, Bindapur,
Uttam Nagar, Dwarka, Delhi.
Date of institution 21.10.2020
Arguments concluded on 14.07.2025
Judgment Pronounced on 22.07.2025
Decision Convicted
JUDGMENT
BRIEF FACTS
1.1 The accused Shekhar Kumar Verma has been sent to face trial for
committing an offence punishable under Section 22 of Narcotic Drugs and
Psychotropic Substances Act, 1985 (hereinafter referred to as ‘NDPS Act‘).
1.2. The facts of the case in brief as per the charge sheet filed by the
prosecution are that the FIR in question was registered on 25.04.2020. On the
directions of senior officer, vide DD No. 24B dated 05:15 PM, SI Sandeep
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PS S. P. Badli
Digitally signed
DHIRENDRA by DHIRENDRA
RANA
RANA Date: 2025.07.22
14:26:07 +0530
alongwith Ct. Vivek were on picket checking duty at Mukraba Chowk, GTK
Road where HC Parvesh, ASI Ranvir, Ct. Anuj, HC Lakhvinder, Ct. Anjit and
Ct. Yogender were already present. During picket checking at about 06:30 PM,
car Honda Civic bearing No. DL-4CAB-9918 was seen coming from Azadpur
and signal was given to stop for checking. Inquiries were made from the driver
with regard to his presence during lockdown period, however, he failed to give
any satisfactory reply. Upon suspicion, said car was checked and two brown
colour cartons were found on the rear seat. On inquiry, said person disclosed
his name as Shekhar Kumar Verma and disclosed that the said cartons were
containing prohibited medicines and same were purchased by him from Sajjad
@ Sajid from Dwarka, Delhi.
1.3 SI Sandeep immediately informed ACP concerned and SHO
concerned through telephone. No public person was found present at the spot
due to lockdown. In the meantime, at about 07:22 PM, ACP/S. P. Badli reached
at the spot and thereafter, notice under section 50 NDPS Act was served upon
accused. Accused was informed about his legal rights, however, accused
refused to exercise his legal rights and gave his refusal in writing on the notice
itself as recovery has already been effected from his car. Thereafter, both the
cartons were taken out from the car. On checking the cartons, one of the
cartons was found containing 70 boxes and another carton was found
containing 60 boxes of Dicyclomine Hydrochloride, Tramadol Hydrochloride
& Acetaminophen Capsules, SPASMO-PORXYVON® PLUS white colour.
On every box “Each hard gelatine capsule contains Dicyclomine
Hydrochloride I. P. 10 mg, Tramadol Hydrochloride I.P. 50 mg,
Acetaminophen I.P. 325 mg Capsule colour Approved Colours used, Dosage:
As directed by the physician were written. Each box found containing 6 strips
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PS S. P. Badli
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DHIRENDRA by DHIRENDRA
RANA
RANA Date: 2025.07.22
14:26:11 +0530
containing 24 capsules in one strip. Total 18720 capsules containing 936 gm
Tramadol, were recovered from both cartons. Both cartons were sealed with
the seal of SS and seized after marking them as Mark A1 and A2. Seal after
use was handed over to HC Parvesh. Car bearing No. DL 4CAB 9918 was also
seized. Thereafter, ACP left the spot after giving necessary directions. SI
Sandeep prepared tehrir and handed over the same, sealed pullanda and carbon
copy of seizure memo to Ct. Vivek, who went to police station and got the FIR
registered. Ct. Vivek produced sealed pullanda and carbon copy of seizure
memo before SHO.
1.4 After registration of FIR, further investigation was marked to SI
Uday and Ct. Vivek handed over the copy of FIR and tehrir to SI Uday. SI
Uday reached at the spot and prepared site plan at the instance of Ct. Vivek.
Accused was interrogated and arrested. Personal search of accused was
conducted and his disclosure statement was recorded. Compliance u/s 57 of
NDPS Act was got done. The samples were sent to FSL and the result was
obtained. The result came out to be positive that recovered medicines i.e., Ex.
S1 and Ex. S2 were found containing ‘Tramadol, ‘Acetaminophen’ and
‘Dicyclomine’. After completion of investigation, charge sheet was filed.
CHARGE
2. On the basis of material available on record, vide order dated
21.01.2021, charge u/s 22 NDPS Act was framed against the accused to which
he pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
3. Thereafter, prosecution in support of its case have examined 16
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PS S. P. Badli
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DHIRENDRA DHIRENDRA RANA
RANA Date: 2025.07.22
14:26:14 +0530
witnesses in all.
4.1 PW1 Ct. Vivek Rana deposed that on 25.04.2020 at about 05:15
PM, he alongwith SI Sandeep Sandhu, ASI Ranvir, HC Parvesh, HC
Lakhvinder, Ct. Anuj, Ct. Anjeet and Ct. Yogender reached at Mukarba Chowk
Picket where they were checking the vehicles. He further deposed that at about
06:30 PM, one Honda Civic car bearing No. DL-4CAB-9918 came from the
side of Azadpur and they gave signal to stop the car. The car was stopped just
ahead from the barricade at one side. He further deposed that IO SI Sandeep
made inquiries from driver i.e., accused Shekhar Kumar Verma as to where he
was going as lockdown was in force, however, the driver did not give any
satisfactory reply. He further deposed that two cartons of khaki colour having
brown colour tape on them, were kept on the rear seat of the car and on
suspicion, they started checking the same and the cartons were found
containing some capsule type medicine. He further deposed that during
checking, IO SI Sandeep found that the said medicines were used for
intoxication purpose. Thereafter, IO SI Sandeep Sandhu informed ACP as well
as SHO PS S. P. Badli through telephone.
4.2 He further deposed that IO informed accused about his legal rights
i.e., to give his search in presence of Magistrate or Gazetted Officer and he
could also take the search of police officials prior to giving his search. He
further deposed that accused refused to call any Gazetted officer or Magistrate
at the spot. Thereafter, IO SI Sandeep prepared notice under section 50 NDPS
Act, carbon copy of the notice is Ex. PW1/A and served the same upon the
accused. He further deposed that accused gave his reply to the notice which is
Ex. PW1/B. He further deposed that accused was interrogated and he informed
that there were prohibited medicines in the cartons.
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PS S. P. Badli
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by DHIRENDRA
DHIRENDRA RANA
RANA Date: 2025.07.22
14:26:19 +0530
4.3 He further deposed that SI Sandeep informed ACP and SHO
concerned regarding apprehension of accused and recovery of two cartons. He
further deposed that ACP Manish Jorwal reached at the spot at about 07:22 PM
and in presence of ACP both cartons were opened. In one of the cartons there
were 70 small boxes and in other cartons there were 60 small boxes and there
were 18726 capsules in both the boxes. He further deposed that accused was
apprised about his right that he could search raiding team members prior to his
search, however, he refused for the same and told that he knew that he was
having prohibited drug in his possession.
4.4 He further deposed that the said two cartons containing 18726
capsules were seized vide seizure memo which is Ex. PW1/C and thereafter,
ACP left the spot after directing IO to proceed further as per law. He further
deposed that thereafter, IO handed over tehrir to him alongwith copy of seizure
memo and case property in sealed condition and accordingly, he had gone to
police station for registration of FIR.
4.5 He further deposed that at about 08:30 PM, he reached at police
station and handed over the rukka to duty officer and produced case property in
sealed condition before SHO in his room and SHO put his seal of AK on the
said parcels. He further deposed that thereafter, he reached at the spot
alongwith copy of FIR and original rukka and handed over the same to SI
Udai, who was present at the spot as further investigation was marked to him.
He further deposed that IO SI Sandeep had left the spot after handing over the
documents prepared by him and custody of accused to SI Udai. He further
deposed that accused disclosed that he had purchased medicines/capsules from
Sajjad @ Sajid. Accused was arrested vide arrest memo which is Ex. PW1/D,
his personal search was conducted vide personal search memo which is Ex.
PW1/E and his disclosure statement was recorded which is Ex. PW1/F. He
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PS S. P. Badli
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DHIRENDRA DHIRENDRA
RANA
RANA Date: 2025.07.22
14:26:23 +0530
further deposed that car bearing No. DL-4CAB-9918 alongwith key was seized
vide seizure memo which is Ex. PW1/G. He further deposed that thereafter, he
alongwith IO and accused had gone to Sanjay Gandhi Transport Nagar,
however, source of supply i.e., accused Sajjad @ Sajid was not found there.
4.6 During cross examination done on behalf of State he admitted that
ACP Manish Jorwal reached at the spot at about 07:22 PM and thereafter, SI
Sandeep served copy of notice under section 50 NDPS Act upon accused and
told him that as per information, he had prohibited drugs in his possession and
his search was to be conducted. It was his legal right that his search could be
taken in presence of a Gazetted officer or a Magistrate, if he so desire,
however, accused refused for the same. He further admitted that accused was
also apprised that prior to his search, he could take search of any of the raiding
team member and ACP had also apprised the accused about his rights but
accused had replied to the notice that he did not want to be searched in
presence of Magistrate or a Gazetted Officer as police party already knew that
accused was in possession of prohibited drugs.
4.7 He further admitted that he with the help of SI Sandeep took out
two cartons from car bearing No. DL-4CAB-9918 Honda Civic and one of the
cartons was found containing 70 boxes and each box containing 6 strips. It is
further admitted that another box found containing 60 small boxes each
containing 6 strips. He further deposed that each strip contained 24 capsules of
Dicyclomine Hydrochloride, Tramadol Hydrochloride and Acetaminophen
Capsules, Spasmo Proxyvone Plus and on each box “each hard gelatin capsule
contains Dicyclomine Hydrochloride I.P.10 mg, Tramadol Hydrochloride I.P.
50 mg, Acetaminophen IP 325 mg capsule colour, approved colours used,
dosage, as directed by the physician was written.
4.8 He further admitted that on calculation, 936 grams Tramadol were
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PS S. P. Badli
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DHIRENDRA DHIRENDRA RANA
RANA Date: 2025.07.22
14:26:27 +0530
found in the said capsules which was prohibited as per law. He further
admitted that SI Sandeep Sandhu had kept the said recovered capsules in the
said cartons and both cartons were marked as A1 and A2. He further admitted
that both the cartons were sealed with the seal of SS and seized the same in the
presence of ACP. He further admitted that seal after use was handed over to
HC Parvesh, who was called from the nearby picket and thereafter, ACP had
left the spot after giving necessary directions to IO.
4.9 He further admitted that prior to handing over rukka to him, IO
had directed to produce the rukka to duty officer and case property and carbon
copy of the seizure memo to SHO. He took the rukka and sealed parcels to
police station. He produced the rukka to duty officer, who registered the FIR
and sealed parcels and carbon copy of the seizure memo to SHO, who put his
seal of AK on the parcels and had written the FIR number on the parcel and
carbon copy of the seizure memo.
4.10 He exhibited carton Mark A1 containing 70 small boxes as Ex. P1
(collectively) and carton Mark A2 containing 60 small boxes as Ex. P2
(collectively).
4.11 During cross examination done on behalf of accused, he stated
that he was made aware in police station that they had to go to spot for picket
checking. No written order of senior officer was shown to him by IO SI
Sandeep Sandhu for picket checking. He stated that he checked around 10 cars
at the picket, however, details of car were not entered in any register. He stated
that one police booth was 50 meters distance from the picket and distance of
police station from the spot was about 4 km. He stated that no CCTV camera
was installed at police booth. He admitted that vehicles were moving and
passing through the area at the time when they apprehended the accused. He
stated that IO had requested some of the car drivers and passengers to join the
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PS S. P. Badli
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DHIRENDRA
DHIRENDRA RANA
RANA Date: 2025.07.22
14:26:31 +0530
investigation but they refused to join.
4.12 He stated that IO had firstly called ACP and thereafter, he called
the SHO. The distance between the office of ACP and the spot was around 10
km. He could not tell as to which of the police official had stopped the car of
the accused. He stated that cartons were opened while these were kept in the
car and it was found that same were having prohibited medicines. The cartons
remained under his supervision alongwith supervision of SI Sandeep, HC
Parvesh till the arrival of ACP at the spot. He stated that notice under section
50 NDPS Act was served upon accused on the directions of ACP and ACP was
also present at that time. He stated that no finger prints of the accused were
lifted from the said cartons. Both the cartons were checked in presence of ACP
concerned at the spot and after seizure of the cartons, ACP left the spot. He
stated that no videography and photography of the recovered
medicines/capsules were prepared at the spot despite having smart phone with
him, IO and ACP concerned. He stated that no CCTV camera was installed at
the spot. He stated that all the strips in each of the box were checked. He stated
that the car and recovered material was checked around 15-20 steps from the
police picket on the road leading towards Karnal side.
4.13 He stated that during conducting picket checking, diggi of the car
was checked and luggage or any article therein was also checked apart from
the person sitting in the vehicle. He stated that goods from the vehicles were
also checked during the picket checking. He stated that seal remained with IO
after use. He stated that he did not make any arrival entry in the police station.
He firstly met with duty officer. He stated that seal after use was kept by SHO
with himself. He admitted that no FSL form was filled up in his presence. He
denied all the suggestions put forth on behalf of accused.
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PS S. P. Badli
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by DHIRENDRA
DHIRENDRA RANA
RANA Date: 2025.07.22
14:26:35 +0530
5.1 PW2 HC Parvesh Kumar, being the member of team, who
apprehended accused, deposed on the lines of PW1 Ct. Vivek Rana about
apprehension of accused.
5.2 During cross examination done on behalf of accused, he stated
that his departure entry was made by duty officer but he could not tell the
number of that DD entry. He stated that ASI Ranvir, Ct. Anuj, HC Lakhvinder,
Ct. Anjit accompanied him on that day and their departure entry was also made
by the duty officer but he could not tell the number of that DD entry. He stated
that distance between the occurrence place and police station was near about
1½ to 2 km. Sanjay Gandhi Transport Nagar was at a distance of about 1 km
from the spot. There was no government office or shop etc. near the spot. He
denied that he did not notice any carton in the car of the accused at that time.
He stated that seal was handed over to him by SI Sandeep after ACP left the
spot. He admitted that no memo regarding handing over the seal was prepared
by the IO in that regard. He stated that he returned the seal to IO on next day
but no handing over memo was prepared by the IO. He denied all the
suggestions put forth on behalf of accused.
6.1 PW3 ASI Pramod, being MHC(M) exhibited serial No. 4459 in
register No. 19 as Ex. PW3/A vide which on 25.04.2020, Inspector Akshay
Kumar deposited two sealed cartons sealed with the seal of SS and AK in
malkhana. He deposed that on 14.10.2020, on the directions of IO, he handed
over both sealed parcels to Ct. Satyender for production of the parcels in
Rohini Court vide RC No. 250/21 which is Ex. PW3/X. He further deposed
that on the same day Ct. Satyender came back to Malkhana and deposited back
the said parcels and samples mark S1 and S2 sealed with the seal of NKS.
6.2 He further deposed that on 15.10.2020, on directions of IO, he
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PS S. P. Badli
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DHIRENDRA DHIRENDRA
RANA
RANA Date: 2025.07.22
14:26:39 +0530
handed over parcels Mark S1 and S2 alongwith relevant documents to Ct.
Kuldeep vide RC No. 251/21/2020 which is Ex. PW3/B for depositing the
same at FSL. After depositing the parcel, Ct. Kuldeep handed over
acknowledgment which is Ex. PW3/C to him.
7.1 PW4 ACP Akashay Kumar, deposed that on 25.042020 at about
09:00 PM, Ct. Vivek came to his office and handed over the copy of seizure
memo, FSL form and two parcels sealed with the seal of SS. He further
deposed that he affixed his seal AK on the said parcels and FSL forms. He
further deposed that he called malkhana mohrar to his office and handed over
the aforesaid sealed case property and documents to him for depositing the
same in malkhana. He further deposed that malkhana Moharar made entry in
register No. 19 and he signed the same. He further deposed that he also
obtained FIR number on the parcels and documents after obtaining the same
from duty officer.
7.2 He further deposed that on the same day, SI Uday Singh and SI
Sudeep Singh presented two separate compliance reports under section 57
NDPS Act which are Ex. PW4/A and Ex. PW4/B.
7.3 During cross examination done on behalf of accused, he stated
that he had not received any information from the spot. He stated that he did
not ask about the mode of transport by which Ct. Vivek had brought the case
property alongwith copy of seizure memo to PS S. P. Badli. He stated that he
had not visited the spot. He admitted that he had gone through the contents of
the copy of seizure memo in which seized articles were mentioned as capsules.
He stated that he recorded DD entry qua the proceedings conducted by him but
he did not recollect the same. He admitted that there is no mention about the
FSL form in DD entry No. 54A lodged by him when the case property was
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DHIRENDRA DHIRENDRA RANA
RANA Date: 2025.07.22
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deposited in malkhana.
8. PW5 HC Kuldeep Kumar, took two sealed samples S1 and S2
sealed with the seal of NKS alongwith road certificate, FSL Form from the
malkhana mohrar and deposited the same at FSL Rohini. He obtained the
receipt from FSL Rohini after depositing the same and handed over the same to
MHC(M).
9. PW6 Akshas Khosla deposed that accused Shekhar Kumar Verma
is his neighbour and he is having his shop in front of his house. He further
deposed that one day prior to his apprehension, accused Shekhar had taken his
car bearing No. DL-4CAB-9918 Honda Civic for some work as he told him
that he would return his car on the next day. He further deposed that later on,
he came to know about seizure of car by the officials of PS S. P. Badli and he
got released the same on superdari. He further deposed that when he got the
car released on superdari, photographs were clicked which are Ex. PW6/A
(colly).
10.1 PW7 SI Sandeep, being first IO, deposed about the investigation
carried out by him and on the lines of PW1 Ct. Vivek Rana and PW2 HC
Parvesh Kumar during his examination in chief. He exhibited rukka as Ex.
PW7/A.
10.2 During cross examination done on behalf of accused, he stated
that he left the police station S. P. Badli at about 05:00 PM on verbal
instructions of senior police officers SHO and ACP were not present in police
station at that time. He stated that he himself made departure entry No. 24B
while leaving the police station. He admitted that DD No. 24B dated
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PS S. P. Badli
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DHIRENDRA DHIRENDRA RANA
RANA Date: 2025.07.22
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25.04.2020 bears signature of SHO but the copy thereof supplied to accused
did not bear signature of SHO. He admitted that DD No. 24B did not mention
the purpose of leaving the police station for the spot. He stated that departure
entry of Ct. vivek was also made by him in DD No. 24B.
10.3 He stated that the distance between the police station and spot was
about 1½ km and they reached at the spot by his personal car bearing No.
HR-10AH-6974. He stated that there was a police booth near the police picket,
however, there was no police post near the spot. He stated that accused was
stopped at the picket and enquiries were made from him on the roadside after
taking him out of the car. He stated that accused was taken to nearby road to
20-25 steps from the picket. He admitted that when the alleged car was being
checked, public transport/vehicles were plying on the road.
10.4 He stated that no government office, school, college, MCD office
or Jal Board Office were nearby the spot. He stated that vehicles as well as
goods were being checked by him and other staff. He stated that he made a
phone call from his mobile No. 9990966898 or 9996659570 to ACP Manish
Jorwal and informed him regarding the present case. He stated that the distance
between the spot and ACP office was around 8-10 km and ACP reached at the
spot within 10-12 minutes by his government vehicle/car with his driver. He
stated that he had already apprised ACP on phone regarding the recovery of
Tramadol medicines from possession of accused.
10.5 He stated that counting of the contraband were made by him as
well as Ct. Vivek and HC Parvesh. He had properly checked all the capsules
and they were exactly 18726. He stated that he only checked the contents of
Tramadol but he did not check the date of manufacturing and date of expiry or
name of the pharmaceutical company. He stated that box containing 70 small
boxes was given Mark A1 and box containing 60 small boxes was given Mark
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by DHIRENDRA
DHIRENDRA RANA
RANA Date: 2025.07.22
14:26:56 +0530
A2. He admitted that FIR was not registered when boxes were sent to SHO.
10.6 He could not tell how many seals he had affixed on both the
boxes. He stated that ACP did not affix any seal on the said boxes. He stated
that he did not prepare any handing over of seal to HC Parvesh, however, he
had mentioned the same in the rukka. He stated that ACP remained at the spot
for 40-50 minutes. He stated that he did not take any photograph or made any
video of the alleged recovered articles/medicines before arrival of ACP on the
spot. He stated that initially, he prepared seizure memo and thereafter, he
prepared rukka. He stated that Ct. Vivek went to police station for registration
of FIR on motorcycle. He stated that ACP did not issue any direction to serve
notice under section 50 NDPS Act. He stated that there was no CCTV camera
installed near the place of incident. He stated that he had not prepared any
report under section 57 NDPS Act or sent the same to ACP. He denied all the
suggestions put forth on behalf of accused.
11.1 PW8 Inspector Udai Singh deposed that on 25.04.2020, further
investigation was marked to him and he went to spot i.e., Bus Stand, Mukarba
Chowk Road leading towards Singhu Border where he met SI Sandeep
Sandhu, HC Parvesh and accused Shekhar Kumar Verma. He further deposed
that meanwhile Ct. Vivek also reached there alongwith copy of FIR and
original rukka and handed over the same to him. He further deposed that SI
Sandeep Sandhu handed over custody of accused, seizure memo and copy of
notice under section 50 NDPS Act to him. He further deposed that he prepared
site plan which is Ex. PW8/A at the instance of Ct. Vivek. He interrogated
accused, arrested him, conducted his personal search and recorded his
disclosure statement. He further deposed that notice under section 50 NDPS
Act, iphone 10, Aadhar Card, cash of Rs. 3,500/- and black colour wallet were
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DHIRENDRA DHIRENDRA RANA
RANA Date: 2025.07.22
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recovered from personal search of accused.
11.2 He further deposed that on next date i.e., 26.04.2020, he produced
accused before Hon’ble Court and obtained his one day PC remand. He further
deposed that on the same day, case property was produced before Ld. MM for
drawing of sample but same could not be done.
11.3 He further deposed that on 25.04.2020, he sent report to SHO
Inspector Akshay Kumar under section 57 NDPS Act in respect of arrest of
accused. He further deposed that he again moved an application before Ld.
CMM for drawing of samples on 12.10.2020 which is Ex. PW8/B and
accordingly, samples were drawn and sent to FSL Rohini. He further deposed
that Honda Civic car was released to owner after making panchanama which is
Ex. PW8/C.
11.4 During cross examination done on behalf of accused, he stated
that there was no shop, gas station or any other service in the close proximity
of the spot. He stated that he did not fill the FSL form and same was not filled
in his presence by SI Sandeep and same was not handed over to him by SI
Sandeep. He stated that he checked mobile phone of accused Shekhar but no
contact was saved in his phone by the name Sajjad. He stated that sample
process got delayed due to Covid-19 situation. He denied all the suggestions
put on behalf of accused.
12.1 PW9 ACP Manish Jorwal deposed that on 25.04.2020 at about
07:10 PM, he received an information from IO SI Sandeep Sandhu that a
Honda City car had been intercepted with suspicious substance and he
requested him to reach the spot i.e., Mukarba Chowk. He further deposed that
accordingly, he reached at the spot within ten minutes and met SI Sandeep
Sandhu alongwith one or two Constables. He further deposed that SI Sandeep
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DHIRENDRA DHIRENDRA RANA
RANA Date: 2025.07.22
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Sandhu produced accused before him and he was also apprised about the facts
and circumstances. He further deposed that IO served notice under section 50
NDPS Act in his presence and search of Honda City car was also conducted
and two big cartons were recovered from rear seat of the car. He further
deposed that accused was apprised about his legal rights that he could get
himself searched from a nearby Magistrate or a Gazetted Officer. He was also
offered to search the police party prior to his search. He further deposed that he
introduced himself to the accused. The said cartons were opened and one of the
cartons was found containing 70 boxes of Tramadol hydrochloride capsules
and another carton was found containing 60 boxes of Tramadol hydrochloride
capsules. The said cartons were seized after giving mark A1 and A2. He
further deposed that thereafter, he left the spot.
12.2 He further deposed that on next day i.e., 26.04.2020, two separate
reports under section 57 NDPS Act in regard to recovery of case property and
arrest of accused were received in his office and he had seen both reports and
signed the same.
12.3 During cross examination done on behalf of accused, he stated
that SI Sandhu was present at the spot alongwith accused near Honda City car
which was parked around 10 paces from the police both. He stated that he did
not notice any injury on the person of accused and he did not notice any pain
from the appearance of accused. He stated that notice under section 50 NDPS
Act was served upon accused prior to search and preparation of seizure memo.
He stated that cartons were opened by IO SI Sandeep Sandhu and counting
was also done by IO.
13.1 PW10 Manohar Lal, being the photographer, deposed that on the
request of IO SI Udai Singh, he went to Rohini Courts on 14.10.2020 where he
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took seven photographs which are Ex. PW10/A1 to Ex. PW10/A7 with his
digital camera make Nikon Model No. D750 of the proceedings conducted
before Ld. MM. He exhibited certificate under section 65B of Indian Evidence
Act as Ex. PW10/B.
13.2 During cross examination done on behalf of accused, he stated
that he handed over developed photographs to the police on the next day of
taking the same and no documents were prepared by the police official at that
time.
14. PW11 Ct. Nitin, exhibited entry at serial No. 2512 as Ex. PW11/A
and Serial No. 2513 as Ex. PW11/B with regard to receipt of report under
section 57 NDPS Act regarding seizure of case property and arrest of accused
at ACP office.
15. PW12 ASI Vinesh Kumar, being the duty officer, exhibited FIR as
Ex. PW12/A, certificate under section 65-B of Indian Evidence Act as Ex.
PW12/B and DD No. 52A as Ex. PW12/C.
16.1 PW13 Ct. Satender deposed that on 14.10.2020, sampling process
was done in the chamber of ld. MM in Room No. 110. He further deposed that
ASI Pramod/IO opened two pullandas in presence of Ld. MM and extracted
two samples out of those pullandas. He further deposed that samples were kept
in a plastic box and same was sealed with the seal of NKS by ASI Pramod. He
further deposed that ASI Pramod handed over two pullandas alongwith two
samples to him and he deposited the same in malkhana on the same day.
16.2 During cross examination done on behalf of State, he admitted
that he had received two pullandas A1 and A2 in brown colour cardboard box
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sealed with the seal of SS and AK and produced the same before Ld. MM in
Room No. 110. He further admitted that photographer Manohar Lal was also
present in the chamber. He admitted that samples extracted by IO were marked
as S1 and S2 and after sealing of samples, seal of NKS was handed over to him
by ASI Pramod. He further admitted that FSL form was also filled in the
chamber and same was handed over to him. He admitted that he deposited four
pullandas alongwith FSL form and sample seal in malkhana.
17.1 PW14 SI Upender deposed that he made departure DD entry
which is Ex. PW14/A while leaving the police station for vehicle checking.
17.2 During cross examination done on behalf of accused, he admitted
that accused was not apprehended in his presence. He stated that SI Sandeep
Sandhu, SHO and ACP did not arrive at the spot in his presence. He denied all
the suggestions put on behalf of accused.
18. PW15 Kavita Goyal, Assistant Director, Chemistry. deposed that
on 15.10.2020, two parcels were received in the office and same were marked
to him. She further deposed that he examined the same and found the sample
were containing Tarmadol, Acetaminophen and Dicyclomine vide her report
which is Ex. PW15/A.
19. PW16 Ms. Niharika Kumar Sharma, the then Ld. MM, deposed
that on 17.05.2020, IO had moved an application under section 52A NDPS Act
for sampling of contraband and the said application was put up for disposal on
14.10.2020. She further deposed that IO SI Uday Singh alongwith
photographer namely Manohar Lal and Ct. Satender on behalf of MHC(M) PS
S. P. Badli came to the court. IO had produced case property i.e., two boxes A1
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and A2 weighing 10.75 kg and 9.40 kg respectively. She further deposed that
photographer took the photographs of the weighing process. She further
deposed that case property was desealed and four strips each were taken as
samples and named as S1 and S2. She further deposed that case property of the
sample were sealed with the seal of court i.e., NKS and case property
alongwith samples were handed over to Ct. Satender vide order which is Ex.
PW16/A.
STATEMENT OF ACCUSED UNDER SECTION 313 Cr.P.C
20.1 After closure of PE, statement of accused was recorded u/s 313
Cr.P.C. on 14.05.2024, wherein he denied all the incriminating evidence put to
him. He stated that before the date of incident i.e., 24.04.2020, he got a call
from his uncle Mr. Natvar Lal about shortage of staff in his laboratory for
sample collection and he was called as he was a professional photomologist.
He stated that he had to reach Pitampura at about 07:00-07:30 AM in the
morning for sample collection. He stayed at Lajpat Nagar and his office and
his shop are also in Lajpat Nagar.
20.2 He stated that early morning on 25.04.2020 he started from his
house towards Pitampura at about 06:00 AM taking his friend’s car. He was
carrying a iphone and due to internet problem, the server page to download the
Covid pass was not working. He stated that he with his collection kit started
from his home through Majnu ka tilla and before Azadpur Flyover, he was
stopped by one constable namely Santram and told him to drop at Alipur. He
stated that he told him that he had to reach Pitampura for sample collection on
time and he could not drop him at Alipur. He stated that on his denial, Ct.
Santram asked him for the Covid Pass, however, due to the above mentioned
reason he could not generate Covid Pass. On this Ct. Santram opened the car
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gate and sat inside. He stated that he was scared as Ct. Santram was a police
official and he was wearing khakhi trouser and white shirt at that time and told
him to drive towards Sanjay Gandhi Transport where police beat was situated.
20.3 He stated that Ct. Santram forced him to stop at Booth. He did not
know what to do at that point of time as he was scared. Thereafter, Ct. Santram
went inside the booth. He got down of his car and saw a car standing near his
car of Punjab number. He stated that he saw Ct. Santram was arguing with two
sikh people (sardar). After the heated arguments between them that the two
sikh people left the booth. He stated that thereafter, he went inside and Ct.
Santram took his car keys and his mobile from him. He stated that when he
asked Ct. Santram about what happened and told Ct. Santram to let him talk to
his family, Ct. Santram said he would not leave him.
20.4 He stated that Ct. Santram called somebody and then Ct. Vivek
Rana came there with one another person, who was wearing jeans, T-shirt and
cap and was having curly hairs. He stated that Vivek Rana and the other person
started beating him due to which he was unable to understand what was
happening with him. He stated that he requested them to leave him but they
did not and were beating him continuously. He stated that Ct. Santram said,
“beta, tujhe kharcha karna padega.” He stated that when he asked him how
much on that Vivek Rana showed gestures of two fingers. He stated that he
asked him what that does that two fingers signifies upon which Vivek Rana
said Rs. 2 lakhs. He stated that he said that he did not have that much.
Thereafter, Vivek Rana angrily slapped him and said ” iphone 10x le raha hai
aur paise nahi hai.” On this Ct. Santram started checking his phone and asked
him for the password, he gave him the password and he checked the digital
money transactions sites Paytm, Google pay and Phonepe. Google Pay was
connected with his HDFC Bank Account. He stated that Ct. Santram saw and
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update/notification of Rs. 30,000/- in his account.
20.5 He stated that he got to know that the curly hair person/boy was
the driver of SHO and he took him to ATM near Sanjay Gandhi Transport. He
stated that he went inside the ATM with him and told him to withdraw money
from his account in lot of Rs. 10,000/- each. He stated that he took out Rs.
30,000/- in three transactions and thereafter, he alongwith that person came
back to the booth. He stated that in the middle of the way, that person said, ” tu
pehela banda hai jo bina kute ja raha hai”.
20.6 He stated that he was thoroughly checked including his purse and
his card holder by Ct. Santram and during search, Ct. Santram got visiting
cards of his shop in Lajpat Nagar. He stated that by looking at visiting cards,
Ct. Santram said “bhai mota murga to ab phasa hai”. He stated that he got
scared as he was under apprehension that now they would call his father and
would ask for ransom money. He stated that after showing him visiting cards,
Ct. Santram asked him about number of his father.
20.7 He stated that when he took his card in his hands, Vivek Rana
from behind said, “dekh dekh ye card apne muh me naa dal le “. He stated that
he was not intending to do so but when Vivek Rana said, he did it to which
Vivek Rana said “ab to tu phas gaya”. He stated that that Curly hair boy called
somebody and then SHO Akshay Kumar came at the booth. SHO Akshay
Kumar while entering said, “tu muslim hai kya” (I was having long beard
because of Covid), however, he denied the same. He stated that SHO checked
all his identity cards including his Aadhar card and said that they all are fake
and started beating him.
20.8 He stated that at around 07:30 AM, Ct. Sandeep Sandhu came at
the booth and he saw that the Punjab number car was not there outside the
booth now. He stated that he saw two cartons were there at booth which are
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mentioned in his charge sheet. He saw one police official put those cartons in
his car. SHO Akshay Kumar said ” beta tujhe 10 saal se phele chhutne nahi
dunga”. He stated that this happened because he thought SHO being a higher
police ranked official and he would help him so he told SHO that how he was
forced to withdraw Rs. 30,000/- from his account from the said ATM but in
turn the SHO was in hands in gloves with other police officials.
20.9 He stated that he was beaten with lathis because of covid. He was
left with Ct. Vivek Rana at the booth and rest of them left. He stated that he
heard one of the police official was saying that he has to go Rohini court at
about 01:00 PM. He stated that he requested them to let him talk to his father
but they did not allow him. He stated that he was in the booth for the whole
time from morning to evening and at about 07:30 PM, he saw that his father
and uncle were in front of the booth. He stated that he got to know that
somebody called them and at that time, police officials came and took him to
police station S. P. Badli where he was locked in the lock up and saw that his
dad was also kept behind bars. He stated that he started shouting that why his
dad was being taken behind bars as he had not done anything. He stated that in
the morning, they released his father, MLC was done and he was produced
before Ld. MM in Rohini Court from here he was taken to Duty MM from
where one day PC was granted and next day after getting MLC done, he was
sent to Tihar. He stated that from Tihar, the authority allowed him to talk to his
family and he got to know that a case under NDPS Act has been registered
against him.
He opted to lead defence evidence.
DEFENCE EVIDENCE
21.1 DW-1 HC Amardeep Deswal has proved the copy of roznamcha
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dated 24.04.2020 and 25.04.2020 as Ex. DW-1/A (colly) and Ex. DW-1/B
(colly). He has also proved the copy of the duty staff roster dated 24.04.2020
and 25.04.2020 as Ex. DW-1/C (colly) and Ex. DW-1/D (colly).
21.2 During his cross examination done on behalf of State, he stated
that Ex. DW-1/A is not the complete record for the abovesaid period and as per
the record, DD no. 7 to 9, 16 to 22, 31 to 35, 43 to 49, 53 to 59, 66, 70 to 77,
86 to 88 are missing as the complete document could not be downloaded from
CCTNS. He further stated that Ex. DW-1/B is not the complete record for the
abovesaid period and as per record, DD no. 7 to 13, 20 to 25, 31 to 37, 44 to 50
are missing as the complete document could not be downloaded from CCTNS.
He stated that he was not working at the police station and that is why he could
not tell about the details of duty police officials of PS SP Badli on 24.04.2020
and 25.04.2020. He admitted that the particulars regarding leave and other
details of the officials have not been filled up in the column by the Chitha
Munshi on the abovesaid dates. He also admitted that certificate u/s 65 B of
Indian Evidence Act is not enclosed with the documents i.e. Ex. DW-1/A and
Ex. DW-1/B.
22.1 DW-2 HC Amit Kumar is the MHC (M) who has brought mobile
phone of accused which was seized by the IO at the time of his arrest and was
deposited in the malkhana.
22.2 During his examination, the history of call record was checked
which revealed that on 25.04.2020, there were ten missed calls from one Baby
having mobile number 9871440058 from 11.00 am till 11.50 am on the number
of accused. Also there were missed calls from one number 8920875844 at
10.20 am. There were missed calls at 9.57 am and 10.12 am from one Akshat
from mobile number 8929048399. The call history of accused also showed
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missed call at 10.08 am from one person Rangila having number 8368023802.
Accused had also received one missed call from number 7651883410 at 9.22
am. Accused also received missed call from number 8825080352 at 7.40 am.
Accused has also received one missed call from one person namely Pawan
Uncle from his mobile number 9811222827 at 7.36 am. The history also
shows six cancelled calls received from mobile number 9810003892 from one
Haryana Bhagirath in between 11.08 am to 11.18 am on 25.04.2020. On
25.04.2020, the last attended call received on the mobile number of accused is
of 9.25 am from mobile number 7651883410 for 15 seconds. The said call log
was proved as Ex. DW-2/A.
23. DW3 HC Amit, working in RTI Cell, Outer North District,
deposed that one application was received under RTI Act filed by person
namely Sadakat and same was received in the RTI cell on 29.11.2023 and same
was received vide entry No. 1753. He stated that the information was sought
from the concerned police station and vide report dated 08.12.2023 necessary
information was sent to the RTI cell. He further deposed that reply dated
18.12.2023 was sent to the applicant containing information about deposition
of exhibits in FSL from 27.04.2020 till October 2020. He has proved the copy
of said reply as Ex. DW-3/A.
24. DW-4 Abhishek Thakur from Axis Bank, Sanjay Gandhi
Transport Nagar, deposed that the branch ID of Axis Bank, Sanjay Gandhi
Transport Nagar is 1361 and Axis Bank ATM which comes under the
jurisdiction of Sanjay Gandhi Transport Nagar is having onsite ATM ID
BPRH136101 located at Axis Bank Ltd. Ground Floor, AG 96, Sanjay Gandhi
Transport Nagar, New Delhi-92 and DPRH136103.
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25.1 DW5 Praveen Pal from HDFC Bank, Netaji Subhash Palace,
deposed that the account bearing no. 50100098047182 being maintained in
HDFC Bank, Amar Colony, Lajpat Nagar-4, New Delhi-110024 is registered in
the name of accused Shekhar Kumar Verma. He has brought statement
regarding withdrawal from the said account through ATM on 25.04.2020
reflecting time and place of withdrawal of money from the above mentioned
account and proved the said statement as Ex. DW5/A. He has also proved the
bank account statement as Ex. DW5/B. He has proved the certificate under
section 65B of Indian Evidence Act and certificate under section 2A of
Bankers Act furnished in this regard as Ex. DW5/C (colly).
25.2 During his cross examination done on behalf of State, he admitted
that the account statement placed on record by him was not printed from his
personal computer and same is being given from the computer under the
control of Sh. Aman Trehan. He admitted that Sh. Aman Trehan is still working
as a Manager in Amar Colony Branch. He also admitted that certificate under
section 65B of Indian Evidence Act is being furnished by Sh. Aman Trehan.
He also admitted that it could not be stated that by whom the amount was
withdrawn from the account of accused on 25.04.2020. He admitted that the
the amount was withdrawn from an Axis bank ATM.
26.1 DW-6 Shekhar Kumar Verma is the accused himself.
26.2 During his cross examination done on behalf of State, he denied
that two cartons kept on the rear seat of Honda Civic car bearing no.
DL-4CAB-9918 were recovered at the time of his apprehension on 25.04.2020.
He also denied that on checking, one of the carton was found containing 60
small boxes and each box was found containing 6 strips of capsules and
another carton was found containing 70 small boxes and each of the small box
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was found containing 6 strips of capsules and each strip was found containing
24 capsules, spasm proxyban plus was written on the strip of the capsules.
26.3 He stated that he did not move any application before the court to
preserve the CCTV footage of PS Badli, police booth and ATM. He denied that
he did not move any such application as he was apprehended by the police
official with contraband and no such amount was withdrawn by the police
officials. He denied that he handed over his ATM to someone else with the
reason that if he would be apprehended by the police with contraband then in
such situation, he could create evidence in his defence. He stated that he did
not file any complaint before any higher police official / court against the
police official as he knew that he was apprehended by the police official with
contraband. He also denied that he intentionally brought the car of his friend
and intentionally did not use his car on 25.04.2020 as he had an apprehension
that in case he would be apprehended, his car would be confiscated. He further
denied that he intentionally refused to get searched in presence of nearest
Gazetted officer / Magistrate because he knew that he was apprehended by the
police officials and contraband was recovered from his possession. He denied
that in case, he was innocent, he would have get searched himself in presence
of nearest Gazetted officer / Magistrate.
27. Thereafter, matter was fixed for final arguments.
ARGUMENTS
28. I have heard Dr. Raj Rani, Ld. Addl. PP for State and Sh. Manish
Kumar Singh, Ld. Counsel for accused.
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ARGUMENTS ON BEHALF OF STATE
29.1 The Ld. Addl PP for the State argued that testimonies of the
recovery witnesses i.e PW1 Ct. Vivek Rana, PW2 HC Parvesh and PW7 SI
Sandeep are clear and unambiguous against the accused that he was found in
possession of prohibited medicines i.e., 18720 capsules containing 936 grams
Tramadol and case beyond reasonable doubt has been proved by the
prosecution. Compliance of section 50, 52A, 55 and 57 NDPS Act have been
done by the IO leaving no scope of confusion that accused has not committed
an offence under section 22(C) of NDPS Act.
29.2 Ld. Addl. PP for the State has relied upon Surinder Kumar Babbar
& Ors. Vs. State Govt. of NCT of Delhi & Ors. Crl. A. 284 and382/2013
decided on 10.07.2015, State of Himachal Pradesh Vs. Raghubir Singh & Ors.
Criminal Appeal No. 2567/2024 and Criminal Appeal No. 2568/2024 decided
on 15.05.2024 and Prahlad Vs. The State (NCT of Delhi) Criminal Appeal No.
749 of 2014 decided on 27.05.2016 to fortify her arguments.
ARGUMENTS ON BEHALF OF ACCUSED
30.1 Per contra, Ld. Counsel for the accused argued that the mandatory
provisions of section 50, 52(A) and 57 NDPS Act in the present case have not
been complied with properly and on these grounds, the accused is liable to be
acquitted. Prosecution has failed to exhibit the original notice under section 50
NDPS Act before the court during the trial. There are serious contradictions in
the testimonies of PW1 Ct. Vivek Rana, PW2 HC Parvesh Kumar, PW4 ACP
Akshay Kumar, PW7 SI Sandeep Sandhu and PW9 ACP Manish Ladla with
regard to the proceedings allegedly conducted at the spot. IO did not verify the
source of the contraband and no efforts were made to apprehend alleged source
namely Sajjad. There is no investigation as to where and by which company
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the recovered capsules were manufactured despite the fact that batch number
and other relevant details were duly mentioned on the small boxes as well as
capsule strips. No document was prepared while handing over and taking over
the seal by any of the police official. There is no explanation as to why
sampling was got done after a long duration which is in utter violation of
section 52 NDPS Act. Police officials have failed to explain as to why no
public person was joined in the alleged recovery proceedings.
30.2 It is argued that accused was apprehended around 07:00 am on
25.04.2020 at Mukarba Chowk and he had an altercation with police officials
and thereafter, the case property was planted upon him. Police officials also
forced him to withdraw Rs. 30,000/- from his account from an ATM located at
Sanjay Gandhi Transport Nagar. When the accused could not meet their illegal
money demand, false documentation was done in the evening and accused was
falsely implicated in this case. It is submitted that considering the serious
lacunas in the case of the prosecution, accused is liable to be acquitted.
31. I have heard the arguments and perused the material available on
record as well as case laws cited by the parties. I have also gone through the
written arguments filed on behalf of accused in support of his oral submission.
REASONS FOR THE DECISION
32. Section 22 of NDPS Act is reproduced below for ready reference:-
“22. Punishment for contravention in relation to psychotropic
substances-Whoever, in contravention of any provision of this Act
or any rule or order made or condition of licence granted
thereunder, manufactures, possesses, sells, purchases, transports,
imports inter-State, exports inter-State or uses any psychotropic
substance shall be punishable,–
(a) where the contravention involves small quantity, with rigorous
imprisonment for a term which may extend to 2[one year], or withSC No. 265/2020 FIR No. 315/2020 State Vs. Shekhar Kumar Verma Page No. 27 of 51
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fine which may extend to ten thousand rupees, or with both;
(b) where the contravention involves quantity lesser than
commercial quantity but greater than small quantity, with rigorous
imprisonment for a term which may extend to ten years, and with
fine.
(c) where the contravention involves commercial quantity, with
rigorous imprisonment for a term which shall not be less than ten
years but which may extend to twenty years, and shall also be
liable to fine which shall not be less than one lakh rupees but
which may extend to two lakh rupees:
Provided that the court may, for reasons to be recorded in the
judgment, impose a fine exceeding two lakh rupees.”
Perusal of Section 22(c) of NDPS Act would reveal that
‘possession’ of commercial quantity i.e., above 250 grams of Tramadol (a
psychotropic substance) is an offence.
APPRECIATION OF EVIDENCE:
33.1 Hon’ble Apex Court has time and again reaffirmed as to how
courts need to appreciate the evidence adduced by the parties. In ‘Bhagwan
Tana Patil Vs. state of Maharashtra, AIR 1974 SC 21’ , the apex court ordained
that the function of the court is to disengage the truth from the falsehood and to
accept what it finds the truth and reject the rest. It is only where the truth and
falsehood are inextricably mixed up, polluted beyond refinement down the
core, the entire fabric of the narration given by a witness then the court might
be justified in rejecting the same. This legal position was further elaborated in
‘State of UP Vs. Shankar, AIR 1981 SC 897′ , wherein the Apex court observed
that mere fact that the witness has not told the truth in regard to a peripheral
matter would not justify whole sole rejection of his evidence. In this country, it
is rare to come across the testimony of a witness which does not have a fringe
or an embroidery of untruth although his evidence may be true in the main. It
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is only where the testimony is tainted to the core, the falsehood and the truth
being inextricably intertwined, that the court should discard the evidence.
Therefore, the duty is cast over this court to dispassionately disengage the truth
from the falsehood and accept the truth and reject the same. This court is not
meant to reject the testimony of a witness on slightest deflection, however has
a bounden duty to search the truth.
33.2 In “Dalbir Singh and Ors. Vs. State of Punjab, AIR 1987 SC
1328″, it was held that no hard and fast rule can be laid down about the
appreciation of evidence and every case has to be judged on the basis of its
own facts. While appreciating the evidence of the witness, the approach must
be whether the evidence of a witness read as a whole, appears to have ring of
truth or not. Once that impression is formed, it is undoubtedly, necessary for
the court to scrutinize the evidence more particularly, keeping in view the
deficiencies, drawbacks and infirmities pointed out in the evidence as a whole,
and evaluate them to find out whether it is against the general tenor of
evidence given by the witness as to render it unworthy of belief.
33.3 The Hon’ble Apex court reiterated the manner of appreciation of
evidence in case titled “Gangadhar Behera & Ors. Vs. State of Orissa (2002) 8
SCC 381″, held that the principle falsus in uno falsus in omnimus is not
applicable in India and it is only a rule of caution. Even if major portion of the
evidence is found to be deficient, in case residue is sufficient to prove the guilt
of the accused, the conviction can be maintained. It is the duty of the court to
separate the grain from chaff. Hon’ble Apex Court in State of UP Vs. M.K.
Anthony 1985 (1) SCC 505 held that while appreciating the evidence of a
witness, the approach must be whether the evidence of the witness read as a
whole appears to have a ring of truth. Once that impression is formed, it is
undoubtedly necessary for the court to scrutinize the evidence more
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particularly keeping in view the deficiencies, draw-backs and infirmities
pointed out in the evidence as a whole and evaluate them to find out whether it
is against the general tenor of the evidence given by the witness and whether
the earlier evaluation of the evidence is shaken as to render it unworthy of
belief. Minor discrepancies on trivial matters not touching the core of the case,
hyper-technical approach by taking sentences torn out of context here or there
from the evidence, attaching importance to some technical error committed by
the investigating officer not going to the root of the matter would not ordinarily
permit rejection of the evidence as a whole. Further, Hon’ble Apex court in
‘Smt. Shamim Vs. State, Crl. Appeal No. 56/2016 dated 19.09.2018′, in para 12
observed:
“while appreciating the evidence of a witness, the approach must be
whether the evidence of the witness read as a whole inspires confidence.
Once that impression is formed. It is undoubtedly necessary for the court
to scrutinise the evidence more particularly keeping in view the
deficiencies, drawbacks and infirmities pointed out in the evidence as a
whole and evaluate them to find out whether it is against the general
tenor of the evidence and whether the earlier evaluation of the evidence
is shaken as to render it unworthy of belief. Minor discrepancies on
trivial matters not touching the core of the case, hypertechnical approach
by taking sentences torn out of context here or there from the evidence,
attaching importance to some technical error without going to the root of
the matter would not ordinarily permit rejection of the evidence as a
whole. Minor omissions in the police statements are never considered to
be fatal. The statements given by the witnesses before the police are
meant to be brief statements and could not take place of evidence in the
court. Small/trivial omissions would not justify a finding by court that the
witnesses concerned are liars. The prosecution evidence may suffer from
inconsistencies here and discrepancies there, but that is a shortcoming
from which no criminal case is free. The main thing to be seen is whether
those inconsistencies go to the root of the matter or pertain to
insignificant aspects thereof…….”.
33.4 As far as the defective and illegal investigation is concerned, apex
court held that if investigation is illegal or suspicious, the rest of the evidence
must be scrutinized independent of faulty investigation otherwise criminal trial
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descend to the IO ruling the roost. Yet if the court is convinced that the
evidence of eye witnesses is true, it is free to act upon such evidence though
the role of the IO in the case is suspicious ( Abu Thakir, AIR 2010 SC 2119).
Mere defective investigation cannot vitiate the trial (Paramjit Singh Vs. State
of Punjab AIR 2008 SC 441). The lapses or the irregularities in the
investigation could be ignored only if despite their existence, the evidence on
record bears out the case of the prosecution and evidence is of sterling quality.
If the lapses or irregularities do not go the root of the matter, if they do not
dislodge the substratum of the prosecution case, they can be ignored (Sunil
Kundu & Anr. Vs. State of Jharkhand, 2013(4) SCC 422).
33.5 Evidently, the binding judicial pronouncements casts a duty upon
the Trial Court to cull out the nuggets of truth from the evidence available on
record. To sum up, while appreciating evidence on record the duty of the court
is to separate credible and incredible part of evidence.
33.6 Having noted the general principles of appreciation of evidence,
let us now examine the material available on record to seek an answer to
determine the issue of guilt of accused.
COMPLIANCE OF SECTION 50 NDPS ACT
34.1 Ld. Defence Counsel has forcefully argued that the notice was
served upon the accused after the allegedly recovery of contraband but the
notice in original has not been proved during the trial and therefore, it has to be
presumed that there is non compliance of section 50 NDPS Act. Compliance of
section 50 NDPS Act is mandatory in nature and in case IO fails to comply the
same, benefit of the same must go to the accused.
34.2 In my considered opinion, the law merely requires the accused to
be informed of his right under Section 50 NDPS Act but the information may
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not be necessarily in writing. I am fortified in my opinion by the observations
of the Hon’ble Apex Court in the matter of Vijaysinh Chanduba Jadeja Vs State
of Gujarat: Crl Appeal No. 943 of 2005 with Crl Appeal No. 974 of 2003 and
Crl Appeal No.1809 of 2009 date of judgment 29.10.2010 wherein it has been
observed herein as under:-
“17. In the above background, we shall now advert to the
controversy at hand. For this purpose, it would be necessary to
recapitulate the conclusions, arrived at by the Constitution Bench
in Baldev Singh‘s Case(Supra). We are concerned with the
following conclusions: “57. (1) That when an empowered officer
or a duly authorised officer acting on prior information is about to
search a person, it is imperative for him to inform the person
concerned of his right under Sub-Section (1) of Section 50 of
being taken to the nearest Gazetted Officer or the nearest
Magistrate for making the search. However, such information may
not necessarily be in writing.” (Emphasis supplied).
34.3 In the present case, accused was apprehended by PW1 Ct. Vivek
Rana, PW2 HC Parvesh Kumar and PW7 SI Sandeep Sandhu when they were
checking the vehicle while performing their picket duty. There was no secret
information with these officials that accused is involved in transportation of
contraband. The car of the accused was stopped and he was asked as to how
come he was travelling as it was complete lock down on account of Covid 19
situation on 25.04.2020.When accused could not give any satisfactory reply
and police officials recovered two cardboard boxes containing Tramadol
capsules from his car without any documentary proof to retain the same, he
was apprehended by the police. Therefore, it is a case of chance recovery and
prior to recovery of contraband, police officials had no knowledge that accused
was carrying any contraband.
34.4 IO PW7 SI Sandeep Sandhu informed the accused about his legal
rights that his further search was to be conducted and prior to that search, he
had the option to get himself searched in presence of Gazetted officer or a
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Magistrate. Notice under section 50 was prepared and was duly served upon
the accused. Accused opted not to get himself searched before a Gazetted
Officer and gave his refusal on the carbon copy of the notice itself in his own
handwriting. He also signed his reply. The carbon copy of the notice with
original refusal of the accused has been exhibited during trial as Ex. PW1/A.
Thereafter, personal search of the accused was conducted by the IO but no
further contraband was recovered. Therefore, in the present case significant
compliance has been done by the IO by serving notice under section 50 NDPS
Act that too in writing. Moreover, notice was served upon the accused in the
presence of ACP Manish Ladla and his personal search was also conducted in
his presence. The carbon copy of the notice which is Ex. PW1/A on which
accused had received the notice is duly signed by Ct. Vivek Rana.
34.5 Ideally, prosecution should have proved the original notice under
section 50 NDPS Act which was recovered during personal search of accused.
Now, the question under consideration as what would be the impact of not
proving the original notice during trial. First of all, no objection was taken by
the defence during the testimony of PW1 when the carbon copy of the notice
was exhibited as Ex. PW1/A. The objection ought to have been taken at that
juncture only qua the mode of proof and if that was not objected at that time
then it has to be presumed that this fact stands admitted by the defence that
notice was served upon the accused. It is worth mentioning that during the
cross examination of PW1 it is suggested that reply to the notice under section
50 NDPS Act was written by the accused after he was tortured by the IO to do
the same. This suggestion is again a reflection that there is no dispute from the
side of the accused that notice was not served upon him under section 50
NDPS Act. Though, original notice is not on judicial file but original reply of
the accused on the carbon copy of the notice is duly proved. Therefore, the
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carbon copy of the notice stands converted into an original document as it
contains the original handwritten reply of the accused. Therefore, I do not any
find merit in the argument that non exhibition of original notice under section
50 NDPS Act has to be treated as a non compliance of section 50 NDPS Act by
the prosecution.
NON-COMPLIANCE OF SECTION 52A OF NDPS ACT:-
35.1 It is submitted by Ld. Defence Counsel that accused deserves to
be acquitted for non-compliance of Section 52A of the NDPS Act. It is
contended that it was mandatory for the investigating officer to get done the
sampling process within 72 hours of recovery whereas the case property was
produced before Ld. MM on 14.10.2020. There is no explanation as to why
sampling was not done within 72 hours. It is submitted that accused got filed
an RTI application from another jail inmate namely Sadakat to enquire about
the status of case properties being sent to FSL from PS S. P. Badli from
27.04.2020 to October 2020. As per the reply total 84 case properties were sent
to FSL from PS S. P. Badli. If that was the case then the delay in the sampling
process has become detrimental to the case of the prosecution.
35.2 It is a matter of record that accused was arrested on 25.04.2020
and the sampling process was done by Ld. MM on 14.10.2020. The samples
were sent to FSL on 15.10.2020. Meaning thereby, there was no delay on the
part of SHO/IO to sent the samples to FSL after the sampling process. It is a
point worth consideration that sampling process ought to have been done
within 72 hours of the seizure but the court cannot turn a blind eye towards the
extraordinary circumstances prevailing in the entire country at the relevant
time. On 24.03.2020, first lockdown was announced by Government of India
and there were complete restrictions on the movement so that there was less
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physical interaction between the human beings. The sole purpose of the lock
down was to check the out spread of Covid 19 for the well being of the society
at large. The courts were also working through video conferencing and there
was a complete shut down in the court complexes also. The delay in the
sampling process is directly related to the lock down and outspread of Covid
pandemic. Therefore, considering the unprecedented extraordinary
circumstances, the existence of lock down and the fact that courts were not
working physically, the delay in the sampling process was beyond the control
of the IO and hence,this delay has no bearing on the merits of this case.
AUTHENTICITY OF FSL RESULT:
36.1 Sh. Manish Kumar Singh, Ld. Defence counsel has vehemently
argued that FSL report which is Ex. PW15/A is an unreliable document as Ms.
Kavita Goel has not mentioned in her report about the actual contents of
Tramadol, Acetaminophen and Dicyclomine. If she had checked the samples
then she could have easily clarified about the contents of these three
components in the contraband. She only checked few samples out of 96
capsules contained in one pullanda which goes to show the negligent manner
in which alleged test was performed.
36.2 This argument has become redundant in the light of notification
issued by Ministry of Finance (Department of Revenue) dated 18.11.2009 vide
which it was clarified that the quantities shown in column 5 and 6 of the table
relating to the respective drugs shown in column 2 shall apply to the entire
mixture or any solution or any one or more narcotic drugs of pyshotrophic
substance of that particular drug in dosage form or isomers, esters, ethers and
salts of these drugs wherever existence of such substance is possible and not
just its pure drug content. By issuance of this notification, it has been clarified
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that the quantities i.e., smaller, intermediate or commercial in respect of a
drug, shall apply to the entire mixture or any solution. It is immaterial as to
what extent of concentration is available of any substance in a particular
contraband. In view of this notification, PW15 Ms. Kavita Goel, was not
under an obligation to note down the actual contents of Tramadol,
Acetaminophen and Dicyclomine in her report. Except the absence of contents,
there is no reason to discard the FSL result. Moreover, the contents are
categorically mentioned on each strip and hence, I do not find any merit in this
argument also put forth on behalf of accused.
ABSENCE OF PUBLIC WITNESS
37.1 It is argued on behalf of accused that the whole proceedings and
documentation work were done in the police station itself and that is why no
public witness was joined in the proceedings. It is submitted that in the rukka
itself, PW7 SI Sandeep Sandhu had mentioned that there was no public person
whereas while deposing before the court he had admitted that he did check
several vehicles and had requested public persons to join the proceedings but
they refused to do so. The contradictory version of PW7 in this regard smacks
manipulation on the part of police officials and there is no corroboration of the
police officials from any independent witness.
37.2 The issue of absence of public witness during investigation has
been deliberated over many a times by higher courts. In State Vs. Sunil and
Anr. (2001) 1 SCC 652, Hon’ble Supreme Court held as under:
“It need hardly be said that in order to lend assurance that the investigation has been
proceeding in fair and honest manner, it would be necessary for the Investigating
Officer to take independent witnesses to the discovery under Section 27 of the Indian
Evidence Act; and without taking independent witnesses and taking highly interested
persons and the police officers as the witnesses to the discovery would render theSC No. 265/2020 FIR No. 315/2020 State Vs. Shekhar Kumar Verma Page No. 36 of 51
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discovery, at least, not free from doubt.
In this context we may point out that there is no requirement either under Section 27
of the Evidence Act or under Section 161 of the Code of Criminal Procedure, to obtain
signature of independent witnesses on the record in which statement of an accused is
written. The legal obligation to call independent and respectable inhabitants of the
locality to attend and witness the exercise made by the police is cast on the police
officer when searches are made under Chapter VII of the Code. Section 100(5) of the
Code requires that such search shall be made in their presence and a list of all things
seized in the course of such search and of the places in which they are respectively
found, shall be prepared by such officer or other person and signed by such witnesses.
It must be remembered that search is made to find out a thing or document which the
searching officer has no prior idea where the thing or document is kept. He prowls for
it either on reasonable suspicion or on some guess work that it could possibly be
ferreted out in such prowling. It is a stark reality that during searches the team which
conducts search would have to meddle with lots of other articles and documents also
and in such process many such articles or documents are likely to be displaced or even
strewn helter-skelter. The legislative idea in insisting on such searches to be made in
the presence of two independent inhabitants of the locality is to ensure the safety of all
such articles meddled with and to protect the rights of the persons entitled thereto. But
recovery of an object pursuant to the information supplied by an accused in custody is
different from the searching endeavour envisaged in Chapter VII of the Code. This
Court has indicated the difference between the two processes in the Transport
Commissioner, Andhra Pradesh, Hyderabad & anr. vs. S. Sardar Ali & ors. (1983 SC
1225). Following observations of Chinnappa Reddy, J. can be used to support the said
legal proposition: Section 100 of the Criminal Procedure Code to which reference was
made by the counsel deals with searches and not seizures. In the very nature of things
when property is seized and not recovered during a search, it is not possible to comply
with the provisions of sub-section (4) and (5) of section 100 of the Criminal
Procedure Code. In the case of a seizure [under the Motor Vehicles Act], there is no
provision for preparing a list of the things seized in the course of the seizure for the
obvious reason that all those things are seized not separately but as part of the vehicle
itself.
Hence it is a fallacious impression that when recovery is effected pursuant to any
statement made by the accused the document prepared by the Investigating Officer
contemporaneous with such recovery must necessarily be attested by independent
witnesses. Of course, if any such statement leads to recovery of any article it is open
to the Investigating Officer to take the signature of any person present at that time, on
the document prepared for such recovery. But if no witness was present or if no person
had agreed to affix his signature on the document, it is difficult to lay down, as a
proposition of law, that the document so prepared by the police officer must be treated
as tainted and the recovery evidence unreliable. The court has to consider the evidence
of the Investigating Officer who deposed to the fact of recovery based on the
statement elicited from the accused on its own worth.
We feel that it is an archaic notion that actions of the police officer should be
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approached with initial distrust. We are aware that such a notion was lavishly
entertained during British period and policemen also knew about it. Its hang over
persisted during post-independent years but it is time now to start placing at least
initial trust on the actions and the documents made by the police. At any rate, the court
cannot start with the presumption that the police records are untrustworthy. As a
proposition of law the presumption should be the other way around. That official acts
of the police have been regularly performed is a wise principle of presumption and
recognised even by the legislature. Hence when a police officer gives evidence in
court that a certain article was recovered by him on the strength of the statement made
by the accused it is open to the court to believe the version to be correct if it is not
otherwise shown to be unreliable. It is for the accused, through cross-examination of
witnesses or through any other materials, to show that the evidence of the police
officer is either unreliable or at least unsafe to be acted upon in a particular case. If the
court has any good reason to suspect the truthfulness of such records of the police the
court could certainly take into account the fact that no other independent person was
present at the time of recovery. But it is not a legally approvable procedure to presume
the police action as unreliable to start with, nor to jettison such action merely for the
reason that police did not collect signatures of independent persons in the documents
made contemporaneous with such actions.
37.3 In Rizwan Khan Vs. The State Of Chhattisgarh AIR 2020
SUPREME COURT 4297, Hon’ble Supreme Court held as under:
“It is settled law that the testimony of the official witnesses cannot be rejected on the
ground of non-corroboration by independent witness. As observed and held by this
Court in catena of decisions, examination of independent witnesses is not an
indispensable requirement and such non-examination is not necessarily fatal to the
prosecution case, [see “Pardeep Kumar (supra)].
In the recent decision in the case of Surinder Kumar Vs. State of Punjab, (2020) 2
SCC 563, while considering somewhat similar submission of non-examination of
independent witnesses, while dealing with the offence under the NDPS Act, in
paragraphs 15 and 16, this Court observed and held as under:
“15. The judgment in Jarnail Singh Vs. State of Punjab (2011) 3 SCC 521, relied on
by the counsel for the respondent State also supports the case of the prosecution. In
the aforesaid judgment, this Court has held that merely because prosecution did not
examine any independent witness, would not necessarily lead to conclusion that the
accused was falsely implicated. The evidence of official witnesses cannot be distrusted
and disbelieved, merely on account of their official status.
As a proposition of law, the presumption should be the other way round. That official
acts of the police have been regularly performed is a wise principle of presumption
and recognised even by the legislature.”
37.4 Applying the ratio of Sunil Kumar‘s case (discussed supra) and
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Rizwan‘s case (discussed supra) to the present case, the absence of public
witness during the recovery proceedings is not detrimental to the case on its
merits. At the cost of repetition, it was complete lock down in those days and
every body was trying to have less interaction with other person. The roads
were virtually vacant and only the vehicles performing emergency duties or
persons having special pass for movement were allowed to commute on the
road. Meaning thereby, the chances of availability of public person was very
remote. As PW7 and other police officials have deposed that public persons
were asked to join the proceedings but they didn’t. The court can understand
the mentality of public as they could have been exposed to covid, if they had
opted to join the proceedings. Therefore, the absence of public witness in the
recovery proceedings is duly explained by the prosecution and the
circumstances were such that nobody from the public would have like to invite
trouble for himself. Hence, this argument is again inconsequential as far as this
case is concerned.
NO INVESTIGATION QUA BATCH NUMBER
38.1 It is vehemently argued by Ld. Counsel for accused that there is a
complete lull in the investigation as to from where and by which company the
recovered medicines were dispatched. Batch number was duly written on each
and every strip and it was very easy for the IO to investigate the matter on this
aspect. Another glaring lacuna in the investigation is that accused Shekhar
allegedly procured medicines from person namely Sajjad @ Sajid and he was
going to delivery the medicines to Sajjad at Sanjay Gandhi Transport Nagar
when he was apprehended by the police. There is no effort to apprehend this
fictitious person Sajjad during the investigation. It is also stressed upon that
accused is running his chemist shop at Lajpat Nagar but it is being projected
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that accused was having a shop at Dwarka. IO portrayed this picture on the
basis of information mentioned on Aadhar card of the accused without
verifying this fact. There are glaring lacunas in the investigation process which
are sufficient enough to dismantle the story of the prosecution.
38.2 I am in agreement with ld. Defence counsel that IO could have
easily verified the source of contraband i.e., the manufacturing company
through its batch number which is clearly mentioned on each and every strip of
the medicine. But if that is no done by the IO then accused cannot take benefit
out of it. The point under adjudication before this court is whether or not
accused was found in possession of 18720 Tramadol capsules when he was
apprehended by the police. Law is settled that the entire case of the prosecution
cannot be brushed aside if there are some lacunas in the investigation.
38.3 This point has been deliberated over by Hon’ble Supreme Court
of India in case titled as Dhanaj Singh @ Shera And Ors vs State Of Punjab
Appeal (Crl.) 941 of 2003 decided on 10.03.2004 wherein it is held as under:
“5. In the case of a defective investigation the Court has to be circumspect in
evaluating the evidence. But it would not be right in acquitting an accused
person solely on account of the defect; to do so would tantamount to playing
into the hands of the investigating officer if the investigation is designedly
defective. (See Karnel Singh vs State of M.P. : 1995CriLJ4173 ).
6. In Paras Yadav and Ors. V. State of Bihar: 1999CriLJ1122 it was held that if
the lapse or omission is committed by the investigating agency or because of
negligence the prosecution evidence is required to be examined dehors such
omissions to find out whether the said evidence is reliable or not. The
contaminated conduct of officials should not stand on the way of evaluating the
evidence by the courts; otherwise the designed mischief would be perpetuated
and justice would be denied to the complainant party.
7. As was observed in Ram Bihari Yadav V. State of Bihar and Ors. :
1998CriLJ2515 if primacy is given to such designed or negligent investigation,
to the omission or lapses by perfunctory investigation or omissions, the faith and
confidence of the people would be shaken not only in the Law enforcing agency
but also in the administration of justice. The view as again re-iterated in AmarSC No. 265/2020 FIR No. 315/2020 State Vs. Shekhar Kumar Verma Page No. 40 of 51
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Singh V. Balwinder Singh and Ors., : 2003CriLJ1282 . As noted in Amar Singh’s
case (supra) it would have been certainly better if the fire arms were sent to the
forensic test laboratory for comparison. But the report of the ballistic expert
would be in the nature of an expert opinion without any conclusiveness attached
to it. When the direct testimony of the eye-witnesses corroborated by the
medical evidence fully establishes the prosecution version failure or omission of
negligence on part of the IO cannot affect credibility of the prosecution
version.”
38.4 Applying the ratio of Dhanaj Singh’s case (discussed supra) to the
present set of facts, it is apparent that there are some irregularities in the
investigation process. It would have been an excellent scenario, if IO had
procured the entire record of the contraband from the company but if the
charge sheet is silent on this aspect then no benefit can be given to the accused
by the court. As far as running a shop at Lajpat Nagar is concerned, defence
has not cross examined PW7 SI Sandeep Sandhu and PW8 Inspector Udai
Singh that they deliberately concealed this fact in the charge sheet. It is
important to note that accused himself stated before the court at the time of
recording his statement under section 313 CrPC and while deposing as DW6
that his address is flat No. A-261, Block A-, Pocket-3, DDA Flat, Bindapur,
Uttam Nagar, Dwarka. Similar address is mentioned in the arrest memo,
personal search memo as well as his disclosure statement. Meaning thereby,
whatever address was stated by the accused to the police official, was noted by
them and there is no scope of fault finding in the investigation process on this
issue. As far as non apprehension of person namely Sajjad is concerned, his
address or his phone number could not be traced and that is how investigation
could not go further in this direction. Therefore, in view of the above
discussion, I am not in agreement with ld. Defence counsel that despite some
lacunas in the investigation, accused is entitled to be benefited from it.
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PRESENCE OF SI SANDEEP SANDHU AT THE SPOT
39.1 Ld. Defence counsel has also argued that SI Sandeep Sandhu and
PW1 Ct. Vivek Rana were never deployed at the picket duty as per the duty
roaster which has been proved by the accused in his defence as Ex. DW1/D. If
they were not deployed at Mukarba Chowk Picket Duty then it is highly
doubtful that they were present at the said spot at 06:30 PM when accused was
allegedly apprehended by them. It is further pointed out by ld. Counsel that SI
Sandeep Sandhu has relied upon DD No. 24B dated 24.04.2020 to prove the
fact that he alongwith PW1 Ct. Vivek Rana had proceeded to picket duty on
the instructions of senior officer. Interestingly, DD No. 24B has not been
proved during prosecution evidence and it remained unproved. Therefore,
prosecution has failed to prove the presence of both these material witnesses at
the spot.
39.2 It is correct that in the duty roaster which has been called by the
accused in his defence from PS Samay Pur Badli, there is no mention that PW7
SI Sandeep and PW1 Ct. Vivek were deputed at picket duty on 25.04.2020. It
is also correct that DD No. 24B has not been proved by the prosecution but
interestingly, Ld. Defence counsel has cross examined PW7 SI Sandeep
Sandhu on the contents of DD No. 24B. It has been clarified by PW7 SI
Sandeep Sandhu that he had lodged DD No. 24B while leaving the police
station alongwith Ct. Vivek. This witness has been cross examined at length on
this aspect and it is not the case of the accused that this DD entry is forged and
fabricated. Meaning thereby, the genuineness and authenticity of this DD entry
is not under challenge. Basically, witness had been cross examined that it is
nowhere mentioned in this DD entry was to which senior officer had directed
both these police officials and it is also not mentioned that they had gone to
perform picket duty. There is not even a single suggestion that this DD entry is
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a manipulated one or it was not recorded by SI Sandeep Sandhu. A document
or a fact which is not in dispute need not to be proved by the other party. It
would have been a different case altogether if accused has claimed that DD
entry is a forged document. In that case, prosecution would have been under an
obligation to prove it during the trial. As stated above, the focus of the defence
is on the contents of the DD entry and therefore, its formal exhibition during
prosecution evidence has no impact on the merits of this case.
CONTRADICTIONS
40.1 It is argued that all other prosecution witnesses have deposed that
Inspector Akshay Kumar reached at the spot alongwith ACP Manish Ladla
after they were being informed by SI Sandeep Sandhu but surprisingly,
Inspector Akshay Kumar is silent in this aspect in his evidence. PW1 Ct. Vivek
Rana has stated that SHO was not present at the spot whereas PW2 HC
Parvesh Kumar has deposed that SHO alongwith ACP came at the spot. These
three witnesses have deposed contradictory to each other. Another
contradiction is that PW4 Inspector Akshay Kumar has deposed that Ct. Vivek
had handed over FSL form to him alongwith case property, however, no such
FSL form was prepared at the spot by PW7 SI Sandeep Sandhu. It is further
pointed out that it is not clarified as to how the case property was taken to the
police station and by which vehicle. It is further argued that as per testimony of
PW12 duty officer ASI Vinesh Kumar, he received the rukka at 08:45 PM and
in the FIR it is mentioned that FIR was registered at 08:54 PM. It is argued that
it is virtually impossible to type a lengthy FIR within a time span of 9 minutes.
It is argued that these contradictions are enough to disbelieve the story of the
prosecution as to how the proceedings were carried out in this case.
40.2 All the above mentioned points raised by ld. Defence counsel Sh.
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Manish Kumar Singh relates to contradictions occurred in the testimonies of
PWs. This issue has been deliberated over on multiple occasion by the Hon’ble
Supreme Court. In Leela Ram Vs. State of Haryana 2000 (40) ACC 34 (SC)
and in Sukhdev Yadav and Ors. Vs. State of Bihar 2001 SCC (Crl.) 1416 it
was observed that there would hardly be a witness whose evidence does not
contain some amount of exaggerations or embellishment. Some times there is a
deliberate attempts to offer the exaggerated evidence and sometime the witness
in their over anxiety to do better from the witness box, detail out an
exaggerated account. Minor variation in the prosecution evidence are of no
value if the evidence in it entity appears to be trustworthy.
40.3 In State of Andhra Pradesh Vs. Kanda Gopaludu 2005 (53) ACC
772 (SC) it was observed that every discrepancy in statement of witness cannot
be treated as fatal. In State of U. P. Vs. Krishna Master 2010 CrlJ. 3889 SC it
has been held that discrepancies normally exist. They are due to errors of
observation, mental disposition, shock and horror at the time of incident.
Unless they go to the root of matter, such discrepancy do not make evidence
unreliable. In Ravi Kapur Vs. State of Rajashtan AIR 2012 SC 2986, it was
held that if variation in statement of witnesses is not material to affect the
prosecution’s case then it has to be ignored.
40.4 No person is supposed to have a mirror image like memory and there
would be impact on the memory of one person due to the passage of time,
health condition and other circumstances. The court is duty bound to see
whether the contradiction present in the testimony of the witness falls in the
category of major contradiction or it is a minor one. If the contradiction is such
that it tends to shake the credibility of the witness then such contradiction has
to be treated as a major one otherwise minor contradictions need to be ignored
provided the testimony inspires confidence of the court to be truthful, reliable
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RANA Date: 2025.07.22
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and of impeachable quality.
40.5 The silence of PW4 Inspector Akshay Kumar on the aspect that he
had gone to the spot is a minor contradiction which does not go roots of this
case. PW2 HC Parvesh Kumar, PW7 SI Sandeep Sandhu and PW9 ACP
Manish Ladla have deposed that SHO Akshay was present at the spot. The
testimony of other prosecution witnesses cannot be ignored, if PW4 Inspector
Akshay Kumar has deposed negligently before the court. His negligence is
again visible when he stated that PW1 Ct. Vivek had given FSL form to him.
It is matter of record that no sampling was done at the spot and SI Sandeep
Sandhu had no reason to fill the FSL form. When no form was fill at the spot
then it could not have been handed over by Ct. Vivek to SHO. Therefore, PW4
Inspector Akshay Kumar has deposed about those facts which were not even in
existence and that is a sheer negligence on this part while deposing before the
court. The court has to separate chaff from the grain while evaluating a
testimony and the entire testimony of the witness cannot be discarded as a
whole. The relevant portion of testimony of PW4 Inspector Akshay shall be
read against the accused and contradictory statement given by him is out of
negligence and accused cannot be allowed to take benefit of such negligence.
40.6 As far as time consumed in registering the FIR is concerned, no
question has been put to PW12 during his cross examination as to how come
he completed the typing of an FIR within 9 minutes. The court is not inclined
to enter into the domain of speculation about the typing speed of a duty officer
and the time consumed in registering the FIR. If this issue was so serious then
defence could have easily cross examine the duty officer and there might be
some explanation by this witness in this regard. Therefore, I do not find any
strength in this arguments and same stands rejected accordingly. As far as
transportation of contraband from spot to the police station is concerned, it has
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been clarified by PW1 Ct. Vivek Rana in his cross examination that he had
gone to the police station with rukka and case property in a car, however, this
fact has not been mentioned in his statement. Therefore, PW1 Ct. Vivek Rana
has clarified as to how he took the case property to the police station.
40.7 Admittedly, it was desirable for the prosecution to prove on record
the seal handing over/taking over memo. However, once it is established on
record that the purity of the process has not been compromised then the
defence cannot claim to have earn some brownie points on account of the
lapses of the investigating officer. Reliance is placed upon C. Muniappan &
Ors. Vs. State of Tamil Nadu 2010 (10) SCC 567 and Sardul Singh Vs. State of
Haryana in (2002) 8 SCC 372. Therefore, all these contradictions pointed out
by Ld. Defence counsel are covered under the category of ‘minor’ head and do
not go to the roots of this case.
DEFENCE EVIDENCE.
41.1 The defence of the accused is based upon a theory that accused
was apprehended by the police officials around 07:00 AM on 25.04.2020. He
had an altercation with the police officials and thereafter he was beaten by
them. I would deal with this defence theory in parts. First of all, accused was
admittedly apprehended with the car registered in the name of PW6 Akshas
Khosla. This witness had deposed before the court that accused had taken his
car for some work with an assurance that he would return the same on next
day. It is not the case that accused was not having his own car and if that was
the case then what was the reason or occasion for the accused to borrow the car
of PW6. While deposing as DW6, accused has pleaded that his car was having
some mechanical issue and needed servicing. It seems that this clarification has
cropped up into the mind of the accused at a belated stage because no such
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suggestion is being given to PW6 to the effect that accused had clarified about
the reason to PW6 at the time of borrowing his car. Accused has not in fact,
disclosed make and registration number of his car and the alleged mechanical
issue, it was having on that day.
41.2 Secondly, accused has projected that he was coming to Pitampura
as his uncle Mr. Natwarlal had asked him to collect the laboratory sample due
to shortage of staff. This aspect of his defence is again apparently hollow.
Accused did not disclose when he received any call from his uncle on
24.04.2020. It is not clarified whether his uncle was running any diagnostic
lab/medical facility or not and if so, what was the name of the lab. In fact,
address of Pitampura has not been disclosed by the accused. Accused has
examined six defence witnesses but he did not examine his uncle Mr.
Natwarlal, who could have corroborated the version of the accused with regard
to the reason of his visit to Pitampura.
41.3 Thirdly, accused has pleaded that he was forced to withdraw Rs.
30,000/- from his ATM located at Sanjay Gandhi Transport Nagar and those
Rs. 30,000/- were taken by the police officials. To prove these transactions
accused has examined, DW4 Abhishek Thakur and DW5 Parveen Pal. This
defence is again lacking substance in it. DW5 has proved the place of
withdrawal of money as Ex. DW5/A and the bank account statement as Ex.
DW5/B. He also placed on record certificate under section 65 B of Indian
Evidence Act signed by Sh. Aman Trehan. All these documents ought to have
been proved by the person, who had generated this bank account statement and
had certified the correctness of the same and not by DW5 Parveen Pal. DW5
admitted that the account statement was not printed by him from his personal
computer. Therefore, these documents have not been proved by the right
witness. It is not the case that Aman Trehan is not traceable and that is why
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DW5 Parveen Pal had exhibited these documents on his behalf.
41.4 Even if these documents are treated to be proved even then it is
not clarified by whom the transactions were done. If accused so serious about
this defence then he could have got preserved the CCTV footage of the ATM
by moving an application under section 91 CrPC. If accused was having his
debit card with him at the time of arrest then it should have been recovered in
his personal search. If police officials had snatched his debit card or destroyed
the same, accused could have stated so.
41.5 Fourthly, accused has put up an entirely different story while
deposing as DW6 which was never in existence at the time of cross
examination of prosecution witnesses namely PW1 Ct. Vivek Rana, PW4
Inspector Akshay Kumar and PW7 SI Sandeep Sandhu. He introduced a
fictitious person namely Ct. Santram,who met him at Azadpur Flyover and
asked the accused to drop him at Alipur. When the accused refused for the
same, Ct. Santram asked for the Covid pass and forcibly sat down in the car.
He took the car to police booth Sanjay Gandhi Transport Nagar and took out
the keys and his mobile phone and went inside the police booth. One Punjab
registration number car was also stationed near the car of the accused and two
sikh people were arguing with Ct. Santram. He also deposed about the
statements of these police officials in vernacular language i.e., Ct. Santram
said, “karcha karna padega”, driver of SHO, “tu pehla banda hai jo bina kutte
ja raha hai”, Ct. Santram, “mota murga to ab phansa hai”, Ct. Vivek said,
“dekh kahin card muh me naa daal le, Inspector Akshay, “tu muslim hai kya”,
“beta tujhe 10 saal se pehle nikalne nahi dunga” . All these facts were never put
to these witnesses during their cross examinations.
41.6 Accused has also proved the call history of his phone on the
pretext that his phone was with PW8 SI Udai and the call history reflects that
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RANA Date: 2025.07.22
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there were six cancelled calls and ten missed calls on his number on
25.04.2020. If accused was apprehended at 06:30 PM on that day then there
was no occasion of having so much missed calls and cancelled calls in his
phone. At the cost of repetition, this evidence is again inconsequential in
favour of the accused. If accused had any iota of truth in his story then he
could have easily cross examined PW8 SI Udai on this issue. There is
complete silence in his cross examination on this aspect. There may be ‘N’
number of reasons on account of which a person may not attend his incoming
calls for a particular period of time and there is no abnormality of existence of
missed call in the phone of the accused. If accused had some strength in his
defence then he could have proved his presence at Sanjay Gandhi Transport
Nagar in morning hours through his google history. When he proved his call
recording defence, there is no explanation as to why he did not prove his
location through google history. Interestingly, it is being pleaded that he was
called at Pitampura by his uncle Natwar Lal. If he had been detained by police
official around 07:00 AM and did not reach at his destination then Sh.
Natwarlal should have called him and his call would have been registered as a
missed call in the call history. There is no such entry in the call history which
is again reflective of false cooked up defence by the accused.
41.7 If such events had occurred then accused cannot forgot the same
by not putting all these important and material facts to these witnesses.
Meaning thereby, the defence which is being projected by the accused was
never in existence at the time of cross examination of prosecution witnesses
and therefore, I do not find any strength in the defence witness and it is
completely unreliable piece of evidence. Law is settled that a defence which is
not put to the prosecution witnesses during their cross examination, cannot be
termed as a reliable one.
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RANA
RANA Date: 2025.07.22
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CONCLUSION
42.1 The testimony of PW1 Ct. Vivek Rana, PW2 HC Parvesh Kumar,
PW7 SI Sandeep Sandhu coupled with the unimpeached FSL Result
conclusively establishes on record that on 25.04.2020, accused was found in
possession of commercial quantity of prohibited psychotropic drugs i.e., 18720
capsules of Tramadol. Necessary compliance under section 50 NDPS Act was
done by PW7 SI Sandeep Sandhu by serving a notice upon the accused. After
seizure of case property, same were sent to PW4 Inspector Akshay Kumar.
PW4 Inspector Akshay Kumar sealed the two pullandas of the case property in
compliance of section 55 NDPS Act. After registration of FIR, accused was
arrested and PW8 Udai Singh sent a report to the SHO in compliance of
section 57 NDPS Act. The samples as well as the remaining case property have
been duly proved during the trial. The chain of sequence of events is complete
and there is no visible defect in the investigation pointed out by the defence.
Needless to say, presumption under section 35 NDPS Act is in force against the
accused and it was his duty to rebut the same but he has failed to do so. The
onus was on the accused to discharge the burden by way of preponderance of
probability. Accused has put up a defence but not sooner than the recording of
his statement under section 313 CrPC and thereafter, defence evidence. His
defence is such that it ought to have been put to the material prosecution
witnesses as their conduct has been described by the accused. If they had been
cross examined on behalf of accused then the court would have been in a
position to evaluate the defence of the accused in the light of answers of these
material witnesses. Hence, defence theory is apparently an afterthought which
was never in existence at the time of prosecution evidence and found to be
unreliable. Therefore, accused has failed to rebut the presumption against him
by virtue of section 35 NDPS Act.
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42.2 Reliance is placed upon the judgment of Hon'ble Delhi High
Court in the matter of Kanwar Pal @ Mama Vs State: 2017 CrLJ 2124(Del).
42.3 In the given facts and circumstances and considering the evidence,
accused Shekhar Kumar Verma is held guilty and is convicted for the offence
punishable under section 22(c) of the NDPS Act. Ordered accordingly.
Digitally signed by
DHIRENDRA DHIRENDRA RANA
RANA Date: 2025.07.22
14:31:16 +0530
Announced in the open court (Dhirendra Rana)
on 22.07.2025 ASJ / Special Judge (NDPS)
(running in 51 pages) North:Rohini:Delhi
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