Delhi High Court
Sunil @ Sunil Sharma vs Directorate Of Revenue Intelligence on 7 May, 2026
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: 28.04.2026
Judgment pronounced on: 07.05.2026
+ CRL.A. 356/2016
SUNIL @ SUNIL SHARMA .....Appellant
Through: Mr. Adarsh Priyadarshi, Mr. Amit
Dwivedi, Mr. Syed Miran, Mr. Suchit
and Ms. Sandhya, Advocates
versus
DIRECTORATE OF REVENUE INTELLIGENCE.....Respondent
Through: Mr. Satish Aggarwala, Senior
Standing Counsel with Ms. Mala
Sharma and Mr. Gagan Vaswani,
Advocates.
CORAM:
HON'BLE MS. JUSTICE CHANDRASEKHARAN SUDHA
JUDGMENT
CHANDRASEKHARAN SUDHA, J.
1. In this appeal filed under Section 374(2) of the Code of
Criminal Procedure, 1973 (the Cr.P.C.), the sole accused in
Sessions Case No.38A/2012 on the file of the ASJ, Special Judge-
NDPS, South District, Saket Courts, New Delhi, challenges the
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judgement dated 27.02.2016 and order on sentence dated
10.03.2016, as per which he has been convicted and sentenced for
the offence punishable under Section 21(c) of the Narcotic Drugs
and Psychotropic Substances Act, 1985 (the NDPS Act).
2. The prosecution case is that on 18.05.2012 at about
01.30 PM, the accused was found in possession of 1 kilogram of
heroin while he was coming into Delhi crossing the Singhu Border
in car bearing registration no. DL-4C AH 1455.
3. On appearance of the accused before the trial court,
copies of all the prosecution documents were supplied to him in
compliance with Section 207 Cr.P.C. On 21.12.2012, Charge
under Section 21(c) of the NDPS Act was framed against the
accused, which was read over and explained to the accused, to
which he pleaded not guilty.
4. In order to prove its case, the prosecution examined
PWs. 1 to 15 and marked Exts. PQ1/A-F, PW2/A- I, PW4/A-F,
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PW4/D1-D4, PW5/A, PW6/A, PW7/A, PW8/A, PW9/A-H,
PW10/A, PW12/A-E, PW14/A-K, Mark A, Mark B, P2, P4-2, P9,
P12 and P11.
5. After the close of the prosecution evidence, the accused
was questioned under Section 313(1)(b) Cr.P.C. with regard to the
incriminating circumstances appearing against him in the
prosecution evidence. The accused submitted that he had been
falsely implicated. No contraband had been recovered from him or
at his instance. The vehicle bearing registration no. DL 4CAH
1455 does not belong to him and the car was never in his
possession. On 18.05.2012, he was taken away by some persons in
plain clothes from near his house to an office. After reaching the
office, he came to know that they were officials of the Directorate
of Revenue Intelligence (DRI). He was illegally detained in their
office, and was questioned about the vehicle in question. The
officials told him that some contraband had been recovered from
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the said vehicle. He denied any connection with the said vehicle
and stated that the vehicle was never in his possession and that he
had never purchased it. He was beaten and threatened, and during
prolonged custody, his family history was obtained. Thereafter, he
was made to write a statement, which was dictated to him. No
sealing or seizure proceedings were carried out in his presence. His
signatures were obtained on various blank papers, small blank
slips, semi-written papers, and written papers. He was also forced
to write certain endorsements on some documents without reading
their contents. All the documents, reports, and records had been
fabricated and manipulated by the officials of the DRI. The panch
witness is a stock witness of the DRI. He had retracted his earlier
statement to the DRI. He had handed over his application for
retraction in the Legal Cell of the Central Jail to be forwarded to
the Court about two to three days after his arrest.
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6. The accused offered himself as a witness and hence
was examined as DW1. Ext.DW1/A and Mark X were marked.
7. The trial court, after hearing both sides and on a
consideration of the oral and documentary evidence, vide judgment
dated 27.02.2016 convicted the accused for the offence punishable
under Section 21(c) of the NDPC Act and vide order on sentence
dated 10.03.2016 sentenced him to undergo rigorous imprisonment
for 10 years and to pay a fine of ₹1,00,000/-, and in default of
payment of fine, to undergo simple imprisonment for one year.
Aggrieved, the accused has preferred this appeal.
8. After the arguments of both sides were heard on
21.04.2026, the appeal was reserved for judgment. On going
through the materials on record, it was found that proceedings
were initiated by the trial court on the basis of a complaint filed by
PW2, Intelligence Officer (IO), DRI, Headquarters (HQ), New
Delhi. Therefore, doubts arose in the mind of this Court as to the
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procedure that was to be followed for the trial of the case. Hence,
the matter was reopened and detailed arguments were heard on
27.04.2026 and 28.04.2026. The learned counsel for the
appellant/accused relied on the dictums in State of Tamil Nadu
vs. V. Krishnaswami Naidu (1979) 4 SCC 5 and Pashupati
Prasad Shukla vs. The Union of India, Criminal Petition No.
922/2025 dated 05.08.2025 (Gauhati High Court) and canvassed
for the point that as it was a complaint filed, the procedure
contemplated in Part B of Chapter XIX should have been
followed.
9. On the other hand, the learned Senior Standing Counsel
(SSC) for the respondent/DRI submitted that the procedure
contemplated under Chapter XVIII Cr.P.C. dealing with trial
before Sessions Court is applicable and relied on the dictum in
Nafe Singh v. NCB 2022 SCC OnLine Del 3290.
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10. The Apex Court in Tofan Singh vs The State Of
Tamil Nadu , 6 KHC 111 : AIR 2020 SC 5592 : (2021) 4 SCC 1
held thus –
“What is clear, therefore, is that the designated officer under
S.53, invested with the powers of an officer in charge of a
police station, is to forward a police report stating the
particulars that are mentioned in S.173(2) CrPC. Because of
the special provision contained in S.36A(1) of the NDPS Act,
this police report is not forwarded to a Magistrate, but only
to a Special Court under S.36A(1)(d). Raj Kumar Karwal
(supra), when it states that the designated officer cannot
submit a police report under S.36A(1)(d), but would have to
submit a “complaint” under S.190 of the CrPC misses the
importance of the non obstante clause contained in S.36A(1),
which makes it clear that the drill of S.36A is to be followed
notwithstanding anything contained in S.2(d) of the CrPC. It
is obvious that S.36A(1)(d) is inconsistent with S.2(d) and
S.190 of the CrPC and therefore, any complaint that has to
be made can only be made under S.36A(1)(d) to a Special
Court, and not to a Magistrate under S.190. Shri Lekhi’s
argument, that the procedure under S.190 has been replaced
only in part, the police report and complaint procedure under
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accepted. S.36A(1)(d) specifies a scheme which is completely
different from that contained in the CrPC. Whereas under
S.190 of the CrPC it is the Magistrate who takes cognizance
of an offence, under S.36A(1)(d) it is only a Special Court
that takes cognizance of an offence under the NDPS Act.
Secondly, the “complaint” referred to in S.36A(1)(d) is not a
private complaint that is referred to in S.190(1)(a) of the
CrPC, but can only be by an authorised officer. Thirdly,
S.190(1)(c) of the CrPC is conspicuous by its absence in
S.36A(1)(d) of the NDPS Act – the Special Court cannot,
upon information received from any person other than a
police officer, or upon its own knowledge, take cognizance of
an offence under the NDPS Act. Further, a Special Court
under S.36A is deemed to be a Court of Session, for the
applicability of the CrPC, under S.36C of the NDPS Act. A
Court of Session under S.193 of the CrPC cannot take
cognizance as a Court of original jurisdiction unless the case
has been committed to it by a Magistrate. However, under
S.36A(1)(d) of the NDPS Act, a Special Court may take
cognizance of an offence under the NDPS Act without the
accused being committed to it for trial. It is obvious,
therefore, that in view of S.36A(1)(d), nothing contained in
S.190 of the CrPC can be said to apply to a Special Court
taking cognizance of an offence under the NDPS Act.”
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(Emphasis Supplied)
11. In the light of the aforesaid dictum, the complaint filed
by PW2 is not a complaint under Section 2(d) Cr.P.C. and so there
cannot be any doubt regarding the procedure to be followed and it
can only be under Chapter XVIII Cr.P.C.
12. Now coming to the merits of the case. The learned
counsel for the appellant/accused submitted that the prosecution
case suffers from serious procedural lapses and violation of
mandatory provisions of law, which go to the root of the matter.
On 18.05.2012, two samples of 05 grams each were drawn by the
officer at the office of the DRI. The prosecution has failed to
explain why the samples were not drawn before the Magistrate, as
mandated under Section 52A(2) of the NDPS Act.
12.1. It was submitted that the samples were not deposited in
the malkhana immediately after the seizure, but only deposited on
21.05.2012, after a delay of about three days. There is complete
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absence of explanation regarding where the samples remained for
the period of three days before being sent to the FSL. The
application under Section 52A of the NDPS Act was also made
after an inordinate delay of about six months. Such delay is in
violation of Clause 3.3 of Standing Order No. 1/89 dated
13.06.1989 of the Department of Revenue, Ministry of Finance,
Government of India (S.O. 1/89). It was further submitted that the
sample seal was not deposited in the malkhana. The seizure memo
was also not deposited, the facsimile of the seal is not reflected in
the malkhana register, and the test memo reference is not
mentioned. The seal remained throughout with the raiding team, an
interested party. These omissions amount to violation of Clauses
3.4 and 3.5 of the S.O. 1/89.
12.2. It was submitted that there is a clear discrepancy in the
quantity of the contraband, which has not been explained. From
the alleged recovery of 1kg of heroin, three samples totalling 15
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grams was admittedly drawn. However, the malkhana register
reflects the quantity as 1 kg, and even at the time of disposal, the
quantity is recorded as 1 kg. Further, the entire search and seizure
proceedings were not conducted at the place from where the
accused was apprehended but in the office of the DRI. This
violates Section 50 of the NDPS Act, which requires that such
proceedings be conducted either at the place of seizure or before a
Magistrate or Gazetted Officer, and not at a third place.
12.3. The learned counsel submitted that neither the source
nor the destination of the alleged contraband has been established.
No efforts were made by the DRI to trace the person, namely,
Raju, whose name appears in the disclosure statement, despite the
availability of his mobile number. In view of the above serious
lapses and violations, the prosecution has failed to establish its
case beyond reasonable doubt, and so the accused is entitled to the
benefit of doubt. In support of the arguments, reference has been
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made to the dictums in Mohammed Khalid &Anr. vs State of
Telangana (2024) 5 SCC 39, Ratan Lal vs State of Rajasthan
(2018 SCC Online Raj 1490, para 33) Raj Roop Singh vs State
of Haryana (2011 SCC Online P&H 16725), Simranjeet Singh
Vs State of Punjab 2024) 14 SCC 222, Yusuf Vs State (2024) 14
SCC 217, Bothilal Vs NCB 2023 SCC Online SC 498, Nicholas
Nzube Vs NCB (BA no 2708/2022), Sunil Vs State of NCT of
Delhi (BA 1688/2022) and Noor Aga vs State Of Punjab & Anr
2008 AIR SCW 5964.
13. The learned SSC for the DRI submitted that the
samples were taken on 18.05.2012, that is, on the day of the
incident itself, which was a Friday. Saturday and Sunday are
holidays for the DRI and hence the material objects/case property
was deposited in the malkhana on the next working day, that is, on
21.05.2012, which was a Monday. There was no delay in
depositing the samples, as they were deposited immediately on the
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next working day. The seized packet was duly sealed with the seal
of the DRI over paper slips bearing the signatures of the accused
and the panch witnesses. It was submitted that, so long as the seals
were found intact, any delay in depositing the case property was
immaterial, as there was no possibility of fabrication or tampering
with the case property. The learned SSC further took the Court
through the records to demonstrate that at no stage was there any
possibility of tampering with the case property, and that the seals
remained intact throughout. While placing reliance on the dictum
in Bharat Aambale v. State of Chhattisgarh, (2025) 8 SCC 452,
it was submitted that mere non-compliance with the procedural
requirements of Section 52A of the NDPS Act does not
automatically vitiate the entire trial or lead to an acquittal. There is
no infirmity in the impugned judgment calling for an interference
by this Court, argued the learned SSC for the DRI.
14. Heard both sides and perused the record.
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15. The law was set in motion by PW1 on the receipt of
secret information by PW3. PW1, Assistant Director, DRI HQ,
New Delhi deposed that on 18.05.2012, PW3 placed before him
secret information from a reliable source that a person of Punjabi
origin, aged about 25-26 years, 5 feet 8 inches, of stout build and
wheatish complexion, driving a white Honda Civic bearing
registration number DL-4C AH 1455, would be entering Delhi
through the Singhu Border between 01:00 PM and 02:00 PM and
that he would be carrying heroin concealed in the car. On receipt
of the intelligence report, he directed J.P. Raju (PW9) to take
necessary action. PW1 identified the secret information marked as
Ext. PW1/A in which he identified his signature as well as the
signature of PW3 and PW9.
16. PW3, Appraiser, DRI Headquarters (HQ), deposed that
upon receiving the aforesaid secret information, he immediately
reduced the same into writing, that is, Ext. PW1/A and put up the
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same before J.S. Kandhari (PW1), to whom he was
administratively subordinate. PW1 instructed J.P. Raju,
Intelligence Officer (PW9), DRI, HQ, New Delhi to take necessary
action. At the request of PW9, he joined the raiding team, which
also consisted of two independent witnesses. The team proceeded
to the Singhu Border and took positions on the Delhi side. The
vehicle was intercepted at around 01:30 PM when it was entering
Delhi from the Haryana side. Sunil Sharma (the accused) was
found driving the car. The members of the raiding team introduced
themselves as officers of the DRI. The accused was told about the
information received and was asked if he was carrying narcotic
drug, that is, heroin, on his person or in his car, to which he replied
in negative. PW9 also showed the search authorisation to the
accused as well as the witnesses. A notice under Section 50 of the
NDPS Act was served upon the accused, apprising him of his right
to be searched in the presence of a Magistrate or Gazetted Officer.
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The accused opted for a search to be conducted in the presence of
a Gazetted Officer of the DRI. This was endorsed by the accused
on the body of the notice issued under Section 50. After initial
hesitation, the accused admitted that he was carrying narcotic drug
concealed in the vehicle and requested that the search be
conducted at the office of the DRI. The accused and the vehicle
were taken to the DRI office, IP Bhawan. In the parking area of the
building where the office of the DRI is located, in the presence of
Gazetted Officer B.K. Bannerjee (PW12), the search of the vehicle
was conducted. A non-woven fabric bag containing polythene
packets with off-white powder was found under the bonnet of the
car, over the engine. PW9 also seized some documents from the
car, namely, photocopy of the RC; one delivery receipt of the car
dealer association and motor vehicle insurance proposal. PW9 took
the documents, the aforesaid bag taken from under the bonnet,
along with the accused, to the seventh floor of the building where
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the office of the DRI is situated. The bag on examination was
found to contain heroin. PW3 further deposed that thereafter he
left the office for some other official work.
16.1. PW3 in his cross-examination deposed that he received
the secret information at about 10:00-10:15 AM on 18.05.2012,
which he immediately reduced into writing. The information so
recorded, that is, Ext. PW1/A was submitted to PW1, his
immediate superior at about 10:20-10:25 AM. PW1 did not direct
him to take any action on the information received. According to
PW3, PW9, who was junior to him, requested him to join the
raiding team by about 11:00 AM. The notice under Section 50 of
the NDPS Act was prepared at the spot. PW3 admitted that he had
not signed the notice or panchnama or any documents and his
presence is not reflected in any of the documents prepared. The
search authorisation was not shown to him, but it was shown to the
accused. He had orally told the accused that he was a Gazetted
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Officer and if the latter desired the search could be done in his
presence. PW3 admitted that in his presence neither the accused
nor the vehicle had been searched at the spot. The bonnet of the car
was not opened at the spot.
17. PW4, the panch witness, deposed that on 18.05.2012,
while he was standing at the bus stop near ITO waiting for his
friend, some officials approached him and told him that they had
received some information relating to transportation of illicit
article (nasheela padarth) and so he was asked to accompany
them as a witness, to which he agreed. He accompanied the
officials to their office situated at ITO, but he was unable recall the
name of the building. From the office, he was taken by the officials
to the Singhu Border. Apart from the officials, there was another
person also with them whose name he was unable to recall. At the
Singhu Border, they were informed that a vehicle was entering
Delhi from the Haryana side and the said person carrying nasheela
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padarth was in the vehicle. The officials intercepted a white-
coloured vehicle coming from the Haryana side when it entered
Delhi. PW4 was unable to recall the registration number of the
vehicle. At the time of interception, there was only the driver
inside the vehicle. The officials disclosed their identity to the
occupant of the intercepted vehicle and informed him that they
wanted to conduct a search. The officials also prepared certain
documents at the spot and handed them over to the occupant of the
vehicle. PW3 could not recall the nature of the documents, though
he had signed them. The officials further conducted inquiries with
the occupant of the vehicle, who disclosed his name as Sunil (the
accused). The officials informed Sunil (the accused) that they had
received information that illicit articles (nasheela padarth) was
being concealed and transported in the vehicle to Delhi. Sunil (the
accused) responded by saying that if a search was to be conducted,
the same could be carried out at the office of the DRI. PW4
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identified the accused before the trial court. The officials escorted
the accused from the spot to their office situated at ITO along with
the vehicle, at which time he also accompanied them. Upon
reaching the parking area of the building where the office of the
officials was situated, a search of the vehicle was conducted.
During the search, a cloth packet was recovered from the engine of
the car. Certain documents were also recovered from the vehicle.
The officials then took the cloth packet, the documents, and the
accused to their office on the seventh floor of the building. He also
accompanied them. The officials examined the cloth packet and
found a light-coloured white powder concealed therein, from
which a pungent smell (tikhi gandh) was emanating. The officials
conducted some testing of the powder and informed him that it
was nasheela padarth. The officials took samples from the
contraband, but he was unable to recall how many samples had
been taken. The officials sealed the remaining contraband
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substance as well as the samples. They also affixed a seal (mohar)
on the sealed contraband. The officials prepared certain documents
recording the proceedings in which he signed. Apart from him,
there was another witness during the proceedings who had also
signed the documents prepared. PW3 identified his signature in
Ext. PW4/A search authorisation; Ext. PW4/B notice under
Section 50 of the NDPS Act; Ext. PW4/C panchnama dated
18.05.2012; Ext. PW4/D1 to PW4/D4 annexures of the
panchnama and Ex. PW4/E and PW4/F test memos. The contents
of the panchnama were read over to him, after which he affixed
his signature on them. On a request made on behalf of the DRI to
put some leading questions, the trial court allowed the same. On
further examination by the prosecutor, PW3 admitted that on
18.05.2012, two samples had been drawn by the officials from the
seized contraband, which were sealed separately. He also admitted
that the registration number of the vehicle intercepted is DL-4C
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AH 1455. PW4 more or less stood by his version in the cross
examination.
18. PW9, IO, DRI Headquarters, New Delhi, deposed that
on 18.05.2012, J.S. Kandhari (PW1) informed him about the secret
information received. PW1 gave him written directions to take
necessary action. Pursuant to the same, he discussed the matter
with B.K. Bannerjee, the then Senior Intelligence Officer (SIO)
(PW12), constituted a raiding team comprising PW3; Rajpal
Singh, IO and Ashok Kumar, Tax Assistant. Two independent
witnesses, namely, Deepak (PW4) and Manoj, were also included
in the team. After the team was constituted, he collected the seal
with the impression “Directorate of Revenue Intelligence 10”
(DRI-10) from B.K. Bannerjee (PW12) after making entry in the
seal movement register. He also collected the search authorisation
for the search of the vehicle from PW12, that is, Ext. PW4/A. At
about 11:30 AM, the raiding team, including the independent
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witnesses, left the office and reached the Singhu Border at around12:30 PM. At about 1:30 PM, the vehicle was spotted and
intercepted. The driver who matched the description in the
information received, disclosed his name as Sunil Sharma (the
accused). They also disclosed their identity to the driver. In the
presence of the independent witnesses, he asked the accused
whether he was carrying any narcotic drugs on his person or in his
vehicle, to which the latter answered in the negative. He informed
the accused about the secret information and showed the latter Ext.
PW4/A search authorisation. He then prepared and served notice
under Section 50 on the accused, informing the latter of his legal
right to get his personal search or the search of his vehicle
conducted before a Magistrate or a Gazetted Officer. The accused
replied that the search of his person or the search of his vehicle
should be conducted in the presence of a Gazetted Officer of DRI.
The said reply was given by the accused in writing, and an
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endorsement to the said effect was made in Ext. PW4/B notice inthe presence of the witnesses. After some hesitation, the accused
admitted that a packet of heroin had been concealed inside the
bonnet of the car and requested that the search be conducted at the
DRI office. Therefore, he escorted the accused and the vehicle to
the office.
18.1. In the parking area of the office of the DRI, he called
PW12, a Gazetted Officer, and informed the latter about the
interception of the accused and the reply/willingness given by the
accused on the notice under Section 50 of the NDPS Act. He
conducted the search of the vehicle of the accused in the presence
of PW12 and both the witnesses. On search of the said vehicle, a
bag/packet of ‘matiala colour’, which contained a polythene
packet, was recovered from under the bonnet. He also recovered
some documents from inside the car relating to the vehicle, the
details of which were recorded by him in the panchnama prepared
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by him. After the recovery of the documents and the packet, theyproceeded to their office along with the accused. He conducted a
personal search of the accused in the office of the DRI, but nothing
incriminating was recovered. He then conducted a detailed
examination of the seized packet. Upon examination of the bag, he
found a heat-sealed transparent polythene packet containing a cloth
bag bearing certain rubber stamp markings. On opening the cloth
bag, he found another heat-sealed transparent polythene packet.
Upon further examination, it was found to contain an off-white
granular/powdery substance emitting a pungent smell. A pinch of
the powdered substance was taken and tested with the help of a
Narcotic Drug Detection Kit, which gave a positive result for
heroin. The contraband on weighing was found to have a net
weight of 1 kg. He seized the contraband along with the non-
woven bag and the vehicle used for transportation. He drew two
samples of 5 grams each from the seized substance, which were
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kept separately in zip-lock polythene packets and then placed inseparate yellow paper envelopes bearing corresponding markings
and the seal of DRI-10, along with paper slips bearing signatures
of the accused, witnesses, and himself. After drawing the samples,
the remaining contraband was repacked in its original packaging
and placed in an off-white cloth bag, which was stitched and
sealed with the DRI-10 seal over paper slips bearing signatures of
all concerned. The sealed packet and bag were then kept in an
airtight plastic container, wrapped in cloth, stitched, and sealed in
a similar manner. During the proceedings, he prepared test memos
affixed with facsimile impressions of the seal, which was signed
by him, the accused, and both the witnesses. He also prepared a
panchnama recording the search and seizure proceedings,
appended with the facsimile of the seal. The contents were read
over in vernacular to the accused and witnesses, after which it was
signed by all concerned. After completion of the panchnama
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proceedings, he handed over the sealed case property, samples andtest memos to K.K. Sood (PW10) for safe custody. On the same
day, he served summons under Section 67 of the NDPS Act to the
accused. In response to the summons, the accused tendered his
voluntary statement under Section 67 of the NDPS Act in his own
handwriting. After recording the statement, he arrested the accused
and intimation of his arrest was given to the wife of the latter. On
19.05.2012, he submitted his report under Section 57 of the NDPS
Act to PW12.
18.2. PW9 in his cross-examination, deposed that the initial
investigation into the case was conducted by him and upon his
transfer, the investigation was taken over by PW2, IO, DRI, HQ,
New Delhi. According to PW9, the accused himself had requested
that, since the place of interception was a busy public area and not
safe for him, he be taken to the office of the DRI for the search. As
far as he can recollect, the accused made an endorsement to the
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said effect on the Section 50 notice. PW9 further deposed that afterthe accused was arrested at about 11:30 PM on 18.05.2012, the
latter was examined at the RML hospital and thereafter kept in
‘rahadari’ at the Daryaganj police station. The custody of the
accused was again taken on 19.05.2012, and again he was
examined at the RML hospital. Thereafter, the accused was
produced before the Court, pursuant to which he was remanded to
judicial custody.
19. PW12, the then Senior Intelligence Officer (SIO), DRI,
HQ, New Delhi, deposed that on 18.05.2012 PW9 had shown him
Ext. PW1/A secret information and that he had a discussion with
the latter. He also saw the directions given by PW1 to PW9. On
the request of PW9, he issued Ext. PW4/A search authorisation for
the search of the vehicle bearing no. DL-4C AH 1455. As
requested by PW9, he had also handed over the seal of the DRI,
having the impression of DRI-10 to the former. While issuing the
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seal, he made an entry at serial no. 38 in the seal movementregister and had signed in the register along with PW9. PW12
supported the version of PW9 regarding the search and seizure.
PW12 further deposed that PW9 had returned the seal of the DRI
on the very same date, which has been recorded at serial no. 38 of
Ext. PW12/A seal movement register. On 21.05.2012, he issued
the seal of the DRI to Ajay Bhasin (PW2) for the purpose of
appending the facsimile of the same on the deposit memo for
depositing the case property in the godown. The seal of the DRI
was returned by PW2 on the same day. Entries to this aspect were
made in the seal movement register, which was signed by him as
well as PW2.
20. PW10, then Deputy Director, DRI, HQ, New Delhi
deposed that on 18.05.2012 at about 06:00-06:15 PM, J. P. Raju
(PW9) handed over one sealed packet containing the remaining
case property seized by the latter as well as one sealed sample in
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duplicate (total two in number) to him for keeping in safe custodyalong with test memo in duplicate. On 21.05.2012, he had handed
over one sealed sample along with test memo to S. K. Bhalla
(PW8) for producing it before the CRCL for chemical analysis. He
had also given PW8 Ext. PW8/A authorization letter dated
21.05.2012 addressed to the Chemical Examiner, CRCL, after
attesting the latter’s signature. He was informed that the sample
was deposited by PW8 in the CRCL on the same day, and on his
directions, the receipt of the same was kept on the investigation
file. On 21.05.2012, on his directions, PW2 prepared Ext. PW2/A
inventory memo/deposit memo for depositing the sealed case
property which was in his possession at the Valuable Godown,
New Custom House, near IGI Airport, New Delhi. Ext. PW10/A
letter dated 21.05.2012 addressed to Deputy Commissioner
(Disposal), New Custom House was also issued by him in this
regard. PW2 deposited the same at the godown and the receipt of
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the godown-in-charge is Ext. PW2/A. This receipt bears hissignature as well as the signature of PW2. The case property and
the samples were intact when it remained in his custody. After
depositing one sample packet in CRCL, he handed over the
duplicate sample to PW9 in sealed condition.
20.1. PW10 in his cross-examination, admitted that he had
not maintained any register regarding the deposit of case property,
sample and test memo and their further submission with the CRCL
and with New Custom House Godown. He denied the suggestion
that the samples and case property had not deposited with him or
that he was not empowered to receive the case property. He denied
the suggestion that the sample had not been sent on 21.05.2012 to
the CRCL or that the seal on the same was not intact or that his
signature in all the documents had been obtained in a routine
manner or that they had been manipulated or fabricated at later
stage.
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21. PW2 IO, DRI, HQ, New Delhi deposed that on
21.05.2012, he was directed by K.K.Sood, Deputy Director, DRI
(PW10) to deposit the sealed case property in the Valuable
Godown, New Custom House, IGI Airport, New Delhi. On the
directions of PW10, he prepared Ext. PW2/A deposit memo.
Accordingly, he had taken the sealed case property to the godown
and the same was deposited with the in-charge of the godown and
the acknowledgement of the latter received in Ext. PW2/A deposit
memo. After completion of investigation in the case, he had filed
the complaint before the Court.
22. I shall also make a brief reference to the testimony of
the accused who offered himself as a witness and hence was
examined as DW1. DW1 deposed that on 18.05.2012, he was
returning home situated at Sant Nagar and when he reached near
his residence on the main road, a Qualis car stopped near him, and
about 5 to 6 persons alighted from it. They enquired his name and
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other family details. He was made to sit in their vehicle and taken
to an office at ITO on the seventh floor, where he was informed
that they were officials of the DRI. They asked him whether he
owned a vehicle bearing registration No. DL-4CAH-1455, which
he denied. However, they told him that drugs had been recovered
from the said vehicle. He denied having any connection with the
said vehicle. He was made to sign several papers. He was tortured
and forced to sign the documents. He wrote a statement which was
dictated to him by the officers. DW1 asserted that no seizure or
sealing proceedings had been conducted in his presence. On
19.05.2012, he was produced before the Court, from where he was
sent to jail. The officials of the DRI did not allow him to speak in
Court. On 21.05.2012, while lodged in jail no. 4, he retracted the
statement he was made to write by the officials and submitted the
original to the Legal Cell, retaining a photocopy. The said
retraction has been marked as Ext. DW1/A, which, according to
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DW1, is in his handwriting, and he identified his signature in the
same.
22.1. DW1, in his cross-examination, admitted that his
family was residing on rent in House No. 6, Gali No. 7, near Sant
Hospital, Sant Nagar, New Delhi. Earlier, he had resided at 231/9,
Chandan Vihar, Nehru Gali, Sant Nagar, which was also a rented
premise. He denied that the said property stands in the name of his
mother. DW1 was unable to say whether his sister Pooja and her
husband Vijay were residing at the said address on 18.05.2012 or
whether any search had been conducted in the said residence by
the officials of the DRI. He also was unable to say whether any
incriminating material had been seized from the said premises.
DW1 when shown document Ex. PW4/D-2 (insurance of Honda
Civic car No. DL 4 CAH 1455), acknowledged that it bore the
name Sunil Sharma and the address 231, Gali No. 9, Chandan
Vihar, Sant Nagar, Burari, New Delhi, and that it was dated
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15.05.2012. However, he stated that he was not aware as to who
had filled the form and that it did not belong to him. He admitted
his name and details on the carbon copy of the delivery receipt
marked as Ext. PW4/D-1 and that it bore his signature, but
maintained that the same was obtained under pressure. He denied
having purchased the vehicle or that it was registered in his name.
He also denied the suggestion that he had been intercepted at the
Singhu Border while driving the said vehicle or that he had been
found in possession of contraband. He further denied having been
served with any notice under Section 50 of the NDPS Act.
However, upon being shown Ext. PW4/B Section 50 notice, he
admitted that the reply portion was in his handwriting and bore his
signature. He also admitted his signature on Ext. PW4/A search
authorisation. He denied the suggestion that any contraband had
been recovered from the engine of the vehicle, or that any search
had been conducted in his presence, or that any panchnama
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proceedings were carried out before him. However, when shown
Ext. PW4/C panchnama and annexures, he admitted his signature
in the same but maintained that the proceedings were not
conducted in his presence. He denied the entire prosecution case of
interception, search and recovery. DW1 admitted that when he was
produced before the Court for the purpose of remand, he had not
made any complaint of torture or false implication.
23. The primary question for determination is whether the
prosecution has proved that the contraband was recovered from the
conscious possession of the appellant and whether the mandatory
procedural safeguards were complied with. The appellant stands
convicted for the offence punishable under Section 21(c) of the
NDPS Act. To bring home a conviction under the said provision,
the prosecution is required to establish (i) recovery of a narcotic
drug or psychotropic substance; (ii) that such recovery was from
the conscious possession of the accused; and (iii) that the quantity
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involved constitutes commercial quantity. Upon proof of
possession, the statutory presumption under Sections 35 and 54 of
the NDPS Act operates, unless rebutted by the accused. In the case
on hand, the recovery alleged is of one kilogram of heroin, which
is apparently commercial quantity.
24. According to the learned counsel for the
appellant/accused, there has been gross violation of the provisions
of Section 52A of the NDPS Act and the various clauses of S.O.
1/89 causing great prejudice to the accused. On the other hand, it
was submitted by the learned SSC for the respondent/DRI that
there has been substantial compliance of the provisions and that
the materials on record would show that no tampering of the
material objects/case property had taken place at any point of time.
The case property was always in the custody of officers
empowered under the Act and that there has been substantial
compliance of all the provisions of the Act, Rules and the Standing
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Orders.
25. Section 52A of the NDPS Act lays down a
comprehensive procedure for the disposal of seized narcotic drugs
and psychotropic substances. Sub-section (1) empowers the
Central Government to prescribe the manner in which such
substances are to be disposed of. Sub-section (2) provides that the
officer in charge of the police station or the officer authorised
under Section 53, who has seized the substances, shall prepare an
inventory of the seized material. The inventory must include
details such as the description, quantity, mode of packing
(including the mode of conveyance being used such as any
vehicle), identifiable marks or numbers, country of origin and
other particulars as necessary of the substances so seized. This
inventory is to be forwarded to the Magistrate having jurisdiction
over the case by way of an application. Under sub-section (3), the
Magistrate, upon receiving the application, is required to certify
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the correctness of the inventory so prepared. The certification
process involves taking photographs of the original seized
substances (including the mode of conveyance being used such as
any vehicle), verifying the correctness of the inventory prepared
against the same, and thereafter drawing representative samples in
the presence of the Magistrate, which are then sealed and its details
are entered into a list which is certified by the Magistrate. These
certified samples, along with the inventory and photographs, are
admissible as evidence during trial under sub-section (4) and are to
be treated as primary evidence.
26. In Bharat Aambale (supra), the Apex court after
referring to the several precedents on the point including Union of
India v. Mohanlal, 2016 ICO 558, held that mere non-compliance
of the procedure under Section 52A of the NDPS Act or the
standing order(s)/rules thereunder will not be fatal to the
prosecution case unless there are discrepancies in the physical
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evidence rendering the prosecution’s case doubtful, which may not
have been there, had such compliance been done. Courts must take
a holistic and cumulative view of the discrepancies that exist in the
evidence adduced by the prosecution and appreciate the same more
carefully keeping mind the procedural lapses. If the remaining
materials on record adduced by the prosecution, oral or
documentary inspire confidence and satisfy the court as regards the
recovery as well as conscious possession of the contraband from
the accused persons, then even in such cases, the courts can
without hesitation proceed to hold the accused guilty
notwithstanding any procedural defect in terms of Section 52A of
the NDPS Act. Non-compliance or delayed compliance of the said
provision or rules there under may lead the court to draw an
adverse inference against the prosecution. However, no hard and
fast rule can be laid down as to when such inference may be
drawn, and it would all depend on the peculiar facts and
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circumstances of each case. Where there has been lapse on the part
of the police in either following the procedure laid down in Section
52A of the Act or the prosecution in proving the same, it will not
be appropriate for the court to resort to the statutory presumption
of commission of an offence from the possession of illicit material
under Section 54 of the Act, unless the court is otherwise satisfied
as regards the seizure or recovery of such material from the
accused persons from the other material on record.
27. In Surepally Srinivas vs The State Of Andhra
Pradesh arising out of SLP (Crl.) No. 14265 OF 2024 dated
25.03.2025, it has been held that what is to be seen is whether
there has been substantial compliance with the mandate of Section
52-A and if not, the prosecution must satisfy the court that such
non-compliance does not affect its case against the accused.
28. In the case on hand, an application under Section 52A
of the NDPS Act is seen moved before the trial court on
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16.10.2012. The order of the trial court dated 17.12.2012 in the
application reads thus:-
” The present proceeding are being held pursuant to an
application moved under section 52 (A) of NDPS Act, which
was assigned to the undersigned vide order of Ld. ACMM
dated 16.10.2012.
Today the IO is present with the case property and the
accused has been produced from JC. The IO has produced
before me a round shape box sealed in a white cloth which is
wrapped on the said box. The seal with which this round
shape box is sealed are of Directorate of Revenue
Intelligence 10. The seals have been affixed on the stitching
portion of the cloth with which this box was wrapped with.
There are 7 seals in total affixed on the pullanda. All seals of
Directorate of Revenue Intelligence 10 are intact and there is
one paper slip affixed under the three lakh seals of
Directorate of Revenue Intelligence 10. The contents of the
same cannot be taken out without breaking open the seals
and the stitching of the cloth. The white cloth with which this
box is wrapped contain particulars i.e. DRI. F.
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18.05.2012 in Delhi by DRI (Hqrs.), SO Sh. J.P. Raju, V.G.E.
No./04(01)12-13.
The pullanda has been photographed today. Four
photographs have been taken by Sh. Ajay Bhasin, IO in my
presence. The photographs have been taken from 3 angles,
one from the front, one each from two sides. One more
photograph has been taken of paper slip containing some
signatures. IO is directed to place the copy of photographs
today itself during the course of day.
Now the intact seals are broken in the court to take out the
box and the paper slip containing some signatures is taken
out and the same has been exhibited as Ex. P1. It has been
counter signed by me today at this stage. On opening the
pullanda a plastic round shape box with green cover and
transparent lower box is revealed. The box is containing one
non-woven empty bag which has alphabet “A” written on it.
Same is now photographed by the IO. The box is further
found containing one sealed pullanda bearing numerical “1”.
the pullanda has been photographed by the IO. Two
photographs have been taken, one where numerical “1” is
appeared and other at the place where the mouth of the
pullanda is sealed. The pullanda is sealed with three seals of
Directorate of Revenue Intelligence 10. Underneath the seal
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there is a paper slip. The said pullanda is now open by
breaking the seals. The paper slip containing some signatures
which is now revealed on opening the seal is hereby Ex. P2.
Same has now been countersigned by me. The pullanda so
opened contain a transparent plastic envelope/polythene
bearing the numerical “1”, same has now been photographed
by the IO. Inside the plastic envelope/polythene is a white
cloth bag containing numerical “1” and rubber stamp
markings. Same has now been photographed by the IO. Three
photographs have been taken. Inside the cloth bag there is a
plastic envelope/polythene containing off white powder/
granules substance and the said polythene/envelope is
already cut open from one side. The said envelope/polythene
also contain numerical “1”. Same has now been
photographed by the IO.
At this stage IO has drawn 5 gram of the off white powder/
granules from the said polythene/ envelope by measuring the
same in a electronic weighing scale and kept it in a zip lock,
transparent polythene pouch which has now been kept in
yellow paper envelope. The paper envelope has been now
sealed with the court seal having initial “GR” and the case
particulars have been mentioned on the same by the
undersigned along with date.
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At this stage the material has been put back/repacked in the
same manner by the IO. The box has been kept in the same
pullanda and has been sealed with the seal of “GR”.
The proceedings stand concluded.
Photocopy of the panchnama proceedings conducted today is
compared with the description mentioned in the photocopy of
the panchnama annexed with the application u/s 52A NDPS
Act. The said description of the case property is mentioned at
page no. 3 and 4 of panchnama, which it is certified by the
undersigned.
Ahlmad is directed to send the proceedings in sealed cover
through ld. ACMM to the concerned court immediately.”
(Emphasis supplied)
29. No inventory as contemplated under Section 52A(2) of
the NDPS Act is seen submitted by the authorized officer, that is,
PW10, when the case property/material object was produced
before the magistrate concerned. In the order of the magistrate, a
panchnama annexed to the application under Section 52A as well
as a panchnama prepared on 17.12.2012 have been referred to. But
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neither the application under Section 52A nor the panchnama are
before this Court. What was the quantity that was produced before
the Magistrate is unclear. The order also does not refer to quantity
produced or the quantity that remained after the sample was
drawn. The materials also do not show as to what happened to the
third sample that was drawn in the presence of the Magistrate
concerned. Going by the provisions of Section 52A, an application
under the Section has to be moved at the earliest possible
opportunity. The seizure in this case took place on 18.05.2012.
However, the application under Section 52A was moved before the
Magistrate concerned on 16.10.2012, after delay of about five
months, for which no explanation has been given. Therefore, it is
clear that the provisions of Section 52A have not been strictly
complied with. However, as held by the Apex Court in Bharat
Aambale (supra), mere non-compliance of the provisions of
Section 52A does not automatically lead to the acquittal of the
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accused. Therefore, I will consider whether the remaining
materials on record are satisfactory to find the guilt of the accused
beyond reasonable doubt.
30. The seizure is stated to have been effected on
18.05.2012 between 01:00 – 02:00 PM, which was a Friday. The
learned SSC for the respondent/DRI submitted that as 19.05.2012
and 20.05.2012 were holidays for the DRI being Saturday and
Sunday, the deposit of the material objects/case property was made
on the next working day, that is, on 21.05.2012, Monday. But on
18.05.2012 itself, PW9 had handed over the seized articles,
samples and test memos to PW10. This is disputed by the learned
counsel for the appellant/accused, who contended that there was a
delay of 03 days in depositing the seized materials in the
malkhana, which delay has not been explained. There are no
materials on record to show in whose custody the samples drawn
remained for 03 days till it was sent to the FSL. The samples, the
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seal, the seizure memo, the facsimile seal etc. were never
deposited in the malkhana. The seal at all times continued to
remain with the raiding team. These aspects are in gross violation
of S.O. 1/89. In support of the arguments, reference was made to
the dictums in Noor Aga (supra) and Raj Roop Singh (supra).
31. Section 52(3) of the NDPS Act mandates that every
article seized shall be forwarded without unnecessary delay either
to (a) the officer-in-charge of the nearest police station, or (b) to an
officer empowered under Section 53. Admittedly, the first option
was never exercised. The question that arises for consideration is
whether PW10 to whom PW9 is stated to have handed over the
material objects/case property was an officer duly empowered
under Section 53 of the NDPS Act. As per Section 53 of the NDPS
Act, the Central Government, in consultation with the State
Government, may issue a notification in the Official Gazette
authorising officers from departments such as central excise,
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narcotics, customs, revenue intelligence, or other Central
Government agencies, including paramilitary or armed forces, to
exercise the powers of an officer-in-charge of a police station for
the purpose of investigating offences under the NDPS Act. The
State Government can issue a notification in the Official Gazette
investing any officer of the department of drugs control, revenue
or excise or any other department or any class of such officers with
the powers of an officer-in-charge of a police station for the
investigation of offences.
32. PW10 admittedly is an officer of the DRI. Notification
S.O. 822(E) dated 14.11.1985 issued by the Ministry of Finance
(Department of Revenue) reads thus:
“S.O. 822(E).-
In exercise of the powers conferred by sub- section (1) of
section 42 and section 67 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (61 of 1985), the
Central Government hereby empowers the officers of and
above the rank of Sub-Inspector in the department ofCRL.A. 356/2016 Page 49 of 67
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Narcotics and of and above the rank of Inspector in the
departments of Central Excise, Customs and Revenue
Intelligence and in Central Economic Intelligence Bureau
and Narcotics Control Bureau to exercise of the powers
and perform the duties specified in section 42 within the
area of their respective jurisdiction and also authorises
the said officers to exercise the powers conferred upon
them under section 67.”
(Emphasis Supplied)
32.1. Notification S.O.823(E), also dated 14.11.1985, issued
by the Ministry of Finance (Department of Revenue) reads thus:
“S.O. 823(E).-
In exercise of the powers conferred by sub- section (1) of
section 53 of the Narcotic Drugs and Psychotropic
Substances Act, 1985 (61 of 1985), the Central
Government, after consultation with all the State
Governments hereby invests the officers of and above the
rank of Inspector in the Departments of Central Excise,
Narcotics, Customs and Revenue Intelligence and in
Central Economic Intelligence Bureau and Narcotics
Control Bureau with the powers specified in sub-section
(1) of that section.”
(Emphasis Supplied)
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32.2. The aforesaid notifications dated 14.11.1985 were
superseded by the following notifications issued by the Ministry of
Finance (Department of Revenue) on 30.10.2019:
“S.O. 3901(E).–
In exercise of the powers conferred by sub-section (1) of
section 42 and section 67 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (61 of 1985), and in
supersession of the notification of the Government of
India in the Ministry of Finance, Department of Revenue
number S.O. 822(E), dated the 14th November, 1985,
published in the Gazette of India, Extraordinary, Part II,
Section 3, Sub-section (ii), except as respects things done
or omitted to be done before such supersession the
Central Government hereby empowers the officers of and
above the rank of sub-inspector in Central Bureau of
Narcotics and Junior Intelligence Officer in Narcotics
Control Bureau and of and above the rank of inspectors
in the Central Board of Indirect Taxes and Customs,
Directorate of Revenue Intelligence, Central Economic
Intelligence Bureau to exercise the powers and perform
the duties specified in section 42 within the area of their
respective jurisdiction and also authorise the said officersCRL.A. 356/2016 Page 51 of 67
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to exercise the powers conferred upon them under section
67.”
***
“S.O. 3899(E).–
In exercise of the powers conferred by sub-section (1) of
section 53 of the Narcotic Drugs and Psychotropic
Substances Act, 1985 (61 of 1985) and in supersession of
the notification of the Government of India in the
Ministry of Finance, Department of Revenue number S.O.
823(E), dated the 14th November, 1985, published in the
Gazette of India, Extraordinary, Part II, Section 3, Sub-
section (ii), except as respects things done or omitted to
be done before such supersession, the Central
Government after consultation with all the State
Governments hereby invests the officers of and above the
rank of inspectors in the Central Board of Indirect Taxes
and Customs, Central Bureau of Narcotics, Directorate
of Revenue Intelligence, Central Economic Intelligence
Bureau and of and above the rank of Junior Intelligence
Officer in Narcotics Control Bureau with the powers
specified in sub-section (1) of that section.”
(Emphasis Supplied)
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33. The aforementioned notifications indicate that the
powers under Section 53 of the NDPS Act has been vested in
officers of and above the rank of inspectors in the DRI. Nobody
has a case that PW10 is not an officer above the rank of Inspector
in the DRI. Thus, PW10 is an officer empowered under Section 53
of the NDPS Act and hence, he had the authority under Section
52(3) to receive the case property/material objects from PW9.
34. According to PW9, after the seizure of 1 kg of heroin,
two samples of 5 grams each were taken and the packets
containing the samples were sealed. The packet containing the
remaining contraband was also packed and sealed and handed over
to PW10 on 18.05.2012 itself. PW10 also asserted that the case
property/material objects had been handed over to him by PW9 on
18.05.2012 at about 06:00-06:15 p.m.
35. The learned SSC for the respondent drew my attention
to Ext. PW11/A letter dated 21.05.2012 given by PW10 to the
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Deputy Commissioner (Disposal), New Custom House, New Delhi
and Ext. PW2/A inventory of goods seized and the endorsements
made therein regarding the receipt of the case property by the
custodian of custom house, to canvass the point that there has been
timely deposit of the case property and therefore, there is nothing
to disbelieve the prosecution case as there was never a scope for
any tampering.
36. By virtue of the aforesaid notification, PW10 is
apparently an officer empowered under Section 53 and hence, an
officer to whom the contraband after its seizure could have been
handed over by virtue of Section 52(3)(b). However, there are no
materials on record to show that PW9 on 18.05.2012 itself had
handed over the case property/material objects to PW10 apart from
the oral assertions made by both of them in the box. When the
learned SSC for respondent/DRI was asked about the same, it was
submitted that as PW9 and PW10 are officers of the same
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department, issuing a receipt or acknowledgment or making
endorsements regarding receipt of the property by PW10 was quite
unnecessary or uncalled for.
36.1. Section 52(3)(b) clearly says that the article seized shall
be forwarded without unnecessary delay to the officer empowered
under Section 53. Therefore, it was incumbent on PW9 to hand
over the case property/material objects without any delay to PW10,
the officer empowered under Section 53. However, there are no
materials to show that it was in fact handed over by PW9 to PW10
on 18.05.2012 itself. I will assume for a moment that oral
assertions of PW9 and PW10 is sufficient to prove deposit under
Section 52(3)(b) and then consider the remaining materials also on
record.
37. Ext. PW11/A the authorization letter given by PW10 to
PW2 reads thus –
“DRI.F.No.338/XVIII/40/2012-GI Dated: 21.05.2012
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ToThe Deputy Commissioner (Disposal),
New Custom House,
New Delhi.
Sir,
Subject: Seizure of 1.000 kg. of Heroin on 18.05.2012 in
Delhi – deposit of Case Property- reg.
This Directorate has effected a seizure of off white
coloured powdery/granular substance weighing 1.000 Kgs (net
weight) suspected to be Heroin on 18.05.2012. As the DRI is
not having its valuable godown, you are requested to deposit
the case property duly sealed in the Customs Valuable
godown.
2. The Case Property along with the Deposit Memo are
being forwarded through Shri Ajay Bhasin, Intelligence
Officer, DRI (Hqrs.), New Delhi for the same.
Yours faithfully,
Encl.: As above. (K.K. Sood)
Deputy Director (G.I.)"
37.1. PW2/A the inventory of goods seized/detained reads
thus –
CRL.A. 356/2016 Page 56 of 67 Signature Not Verified Signed By:KOMAL DHAWAN Signing Date:07.05.2026 15:03:56 "Inventory of goods seized/detained 1 Name and Sunil @ Sunil Sharma, R/o H.No. 6, address of the Gali No. 7, Near Sant Hospital, Ist owner Floor, Sant Nagar, Delhi. Directorate of Revenue Intelligence, 2. By whom seized 'D' Block, I.P. Bhavan, I.P. Estate, (or detained) New Delhi-110002. Directorate of Revenue Intelligence, 'D' 3. Place and date of Block, I.P. Bhavan, I.P. Estate, New Delhi- seizure (or detention) 110002 on 18.05.2012 4. DRI Case F. No. 338/XVIII/40/2012-GI No. Detailed description Estimated S. Details Of of goods (package Qty. ex-duty / No. of goods pkgs. wise) value Off white coloured powdery/ granular Off White substance suspected to powdery be Heroin weighing / 1.000 kgs. approx. net Rs.3.25 granular weight).One air tight 1.000 1 One Lac. substance plastic container Kgs (approx.) suspected wrapped and stitched to be with off white Heroin. coloured cloth and sealed with DRI seal No. 10 over and above CRL.A. 356/2016 Page 57 of 67 Signature Not Verified Signed By:KOMAL DHAWAN Signing Date:07.05.2026 15:03:56 a paper slip bearing dated signatures of Shri Sunil, the panchas, and DRI Officer, containing 1 packet of off white coloured powdery/ granular substance suspected to be Heroin and repacked in the original packing and further kept in off white coloured cloth bags which are duly stitched and sealed with DRI seal No. 10 over a paper slip bearing dated signatures of Shri Sunil, the panchas, and DRI Officer. This sealed cloths packet marked as 1 was kept in the said plastic container. (Ajay Bhasin) Intelligence Officer DRI ( Hqrs.), NewDelhi K.K. Sood Signature of Deputy Director with date: CRL.A. 356/2016 Page 58 of 67 Signature Not Verified Signed By:KOMAL DHAWAN Signing Date:07.05.2026 15:03:56
Received one packages with seals in intact condition as per description
above.
V.G. Entry no. OA(01)12-13 Dated 21/05/2012.
Signature of the Custodian
Note. The packages should be sealed with seal of the seizing/detaining
officer and seal of the owner or his authorized representative or that of the
Gazetted Officer.”
(Emphasis Supplied)
38. Ext. PW2/A inventory shows that only one item, that is,
one packet containing 1 kg of powdery substance suspected to be
heroin that was handed over by PW10 to PW2 to be deposited at
the New Custom house, New Delhi. There is no reference to the
sample packets in the inventory prepared. If PW9 is to be believed
on 18.05.2012 itself, two samples of 05 grams each had been
drawn from the one kilogram of the substance seized from the
appellant/accused. He also speaks about the detailed procedure
followed by him for drawing the samples, its packing and sealing.
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Therefore, after the samples were drawn, there must have been
total three packets, that is, one packet containing the remaining
contraband, that is, 990 grams of heroin, and two packets, each
containing 05 grams each of the sample drawn. These two sample
packets do not find any mention in the inventory prepared.
Therefore, the inventory prepared is not in accordance with Sub
section (2) of Section 52A of the NDPS Act.
39. According to PW10, on 18.05.2012 at about 06:00-
06:15 PM, PW9 handed over one sealed packet containing the
remaining case property seized as well as one sealed sample in
duplicate (total two in number) along with test memo in duplicate.
On 21.05.2012, he handed over one of the sealed samples along
with the test memo in duplicate to PW8 for depositing in the
CRCL for chemical analysis. After PW8 had deposited one sample
packet before the CRCL, the remaining sample packet in sealed
condition, according to PW10 was handed over in sealed condition
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to PW9. How could PW10 have returned one of the sample
packets to PW9, when the former was the officer who was the
officer authorized under Section 52(3)(b) to keep safe custody of
the contraband including the sample packet. This is yet another
anomaly seen.
40. Further, according to PW9, after he seized the
contraband from the accused, he had drawn two samples of 05
grams each from the seized substance, which were packed and
sealed. After drawing the samples, the remaining contraband was
kept in its original packing and the said packet was put in an off-
white coloured cloth bag which was stitched and sealed with the
seal of DRI-10, over and above a paper slip which was signed by
him, the accused and the two independent witnesses. The sealed
packet of the remaining contraband and the bag from which it was
recovered were kept in an air tight plastic container, was wrapped
with a cloth and the same was then stitched and sealed with the
CRL.A. 356/2016 Page 61 of 67
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seal of DRI-10, and the seal was also affixed over and above a
paper slip signed by him, the witnesses and the accused. The
version of PW9 regarding the seizure and sampling is corroborated
by the testimony of PW3 and PW4. If that be so, the packet
containing the remaining contraband after samples were drawn,
could only have been 990 grams of the contraband seized. But as
per Ext. PW2/A inventory prepared by PW2 on the directions of
PW10, the packet containing the residue is stated to contain 1 kg
of heroin. According to the learned SSC for the respondent, this is
only an inadvertent mistake on the part of the officer concerned
who prepared Ext. PW2/A. This aspect was never clarified when
PW9 and PW10 were in the box. Therefore, this is yet another
major anomaly seen.
41. The materials on record show that no proper inventory
was prepared by PW10 either on 18.05.2012 or on 21.05.2012
giving the details of the quantity before and after sampling. The
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packet containing the residue could never have contained 1 kg
heroin going by version of PW3, PW4 and PW9, as 10 grams had
already been taken as samples. Even thereafter, when the
remaining contraband was produced before the magistrate under
Section 52A of the NDPS Act, no inventory is seen prepared.
Therefore, it is not clear as to what was the quantity that was
produced before the magistrate.
42. An application under Section 451 Cr.P.C. seeking
permission to destroy the case property was filed by the DRI
before the trial court. The trial court vide order on sentence dated
10.03.3016 directed the case property to be confiscated and
disposed of after the expiry of the period of limitation for filing the
appeal or subject to the outcome of such appeal or the orders of
Appellate Court. After the appeal was filed, before this Court, the
DRI filed CRL.M.A.2167/2017, application under Section 482
Cr.P.C. seeking permission to destroy the case property,
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representative samples and dispose the vehicle in which it was
transported. The application was allowed on 23.07.2017 with a
direction to file a detailed compliance report thereof indicating the
procedure followed for disposing off the narcotics. As the case
property has already been destroyed, it is not possible for this
Court at this stage to call for the same and verify it.
43. The trial court relied on the confession statement made
of the accused recorded under Section 67 of the NDPS Act.
However, in the light of the dictum in Tofan Singh (supra), the
said statement is inadmissible in evidence and hence, cannot be
relied on.
44. The provisions of the NDPS Act and the punishments
prescribed therein are stringent, the extent of burden to prove the
foundational facts cast on the prosecution, is more onerous. The
courts would have to undertake a heightened scrutiny test and
satisfy itself of “proof beyond all reasonable doubt”. It is a well –
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settled principle of criminal jurisprudence that more serious the
offence, the stricter would be the degree of proof and a higher
degree of assurance would be necessary to convict an accused.
(See Balvinder Singh (Binda) v. The NCB, 2023 KHC 6866:
AIR 2023SC4684; State of Punjab v. Baldev Singh, 1999 (6)
SCC 172, Ritesh Chakarvarti v. State of M.P., 2006 (12) SCC
321 and Bhola Singh v. State of Punjab, 2011 (11) SCC 653).
45. In the light of such unsatisfactory evidence, the benefit
of doubt will have to be given to the accused and this Court is
constrained to acquit the accused. As per the present schedule, 250
grams of heroin is commercial quantity. The seizure in the case on
hand is stated to be one kilogram of heroin. Heroin is quite a
dangerous drug and such large quantities of it can destroy entire
generations. However, it appears that the officials of the DRI have
not assigned the importance that this case so greatly deserved. It
also appears that it was only because of such lackadaisical
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approach and extreme carelessness on the part of the officers
concerned that the benefit has gone to the appellant/accused. There
certainly is a strong/grave suspicion against the accused. But
suspicion, however, strong cannot take the place of proof. Strict
compliance of the formalities is necessary because of the stringent
punishment that is provided under the NDPS Act. Whether the
mistake was intentional or unintentional, the result is disastrous.
Despite the seizure being a commercial quantity, which is
supposed to have a value of more than ₹3,00,000/- in the year
2012, (certainly not a small amount), the culprit goes scot free only
because of the defects/anomalies committed by the officials
concerned of the DRI.
46. It is absolutely necessary that such callous or laidback
attitude should not be repeated in future. Therefore, a copy of this
judgment shall be sent to the Chief Secretary, Government of
N.C.T of Delhi to give necessary instructions to all the officers of
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the departments concerned to be more careful in the future and to
strictly comply with the formalities contemplated under the NDPS
Act to prevent such miscarriage of justice.
47. In the result, the appeal is allowed. The impugned
judgment convicting the accused for the offence punishable under
Section 21(c) of the NDPS Act is set aside. The appellant is
acquitted under Section 238(1) Cr.P.C. of the offence charged
against him. He shall be set at liberty and his bail bond shall stand
cancelled.
48. Application(s), if any, pending, shall stand closed.
CHANDRASEKHARAN SUDHA
(JUDGE)
MAY 07, 2026
rs/p’ma/kd/mj
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