Delhi District Court
Customs vs Sydney John Brain O Grady And Others on 20 April, 2026
SC no. 867/2021 Customs Vs Sydney John-Brain O'Grady
IN THE COURT OF MANU GOEL KHARB:
SPECIAL JUDGE (NDPS)-02 SOUTH-WEST DISTRICT
DWARKA COURTS:NEW DELHI
SC no. 867/2021
CNR No. DLSW01-012847-2021
File no. VIII(AP) (10) P&I/3208-D/Arrival/2021
Customs Vs (1) Sydney John-Brain
Through Santosh Yadav O'Grady
Air Customs Officer, S/o Mr. Andrew O'Grady
T-3, IGI Airport, New R/o 310, Geelvink Street
Delhi Randvaal 1840.
(2) Quentin Deacon
S/o Lt. Daniel Deacon
R/o 5, Nicholsen way, IIovo
Beach, Amazimtoti 4126.
Date of Commission of : 27.06.2021
Digitally
offence
signed by
MANU MANU
KHARB
GOEL Date:
GOEL
Offence complained of : 8/21(c)/23(c) NDPS Act
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+0530 Plea of accused : Both accused pleaded not guilty
and claimed trial
Date of Institution : 23.12.2021
Date when final arguments : 20.04.2026
heard
Date of Judgment : 20.04.2026
Final order : Acquitted
Argued by: Sh. Puneett Singhal, Ld. SPP for Customs along
with Ms. Geeta Rawat Advocate.
Sh. Meghan, Ld. Counsel for accused Sydney John O
Grady.
Ms. Nidhi Kalia, Ld. counsel from office of LADCS
for accused Quentin Deacon.
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SC no. 867/2021 Customs Vs Sydney John-Brain O'Grady
JUDGMENT
INDEX
S. No. PARTICULARS PAGE NO.
1. Introduction 2-3
2. Facts 4-10
3. Table 4.1- Documents Exhibited 10-14
4. Prosecution Evidence 14-20
5. Admission/Denial of documents 20
6. Statement of accused persons under section 313 20-21
of the Cr.P.C.
7. Arguments of prosecution 21
8. Arguments of defence 21-22
9. Law applicable in the case 22-24
10. Presumption of culpable mental state under 24-26
section 35 NDPS Act
Digitally
signed by
11. Issue for determination 26
MANU MANU
KHARB
GOEL
GOEL Date: 12. Mixing of contraband and violation of Standing 26-32
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+0530 Order 1/88 and 1/89
13. Physical Evidence i.e. case property not produced 32-41
by customs
14. Physical Description of case property does not 41-45
match with the seized articles
15. Issuance and deposit of brass seal not proved 45
16. Absence of Independent witnesses 46-48
17. Absence of Videography and photography of the 48
proceedings
18. Decision 52
19. Final Order Acquittal
Introduction
1. The Central Board of Indirect Taxes is a statutory
body under the department of Revenue, Ministry of Finance
which oversees the administration of indirect taxes,
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SC no. 867/2021 Customs Vs Sydney John-Brain O’Grady
including Customs Duties, GST and Excise duties.
Currently, the Customs Department comes under the
Department of Revenue. Apart from the collection of
Customs Duty on International Airports, Sea ports,
International Air Cargo Stations and International ICD’s
(Inlet Container Depots), the functions of customs also
extend to prevention of smuggling on international airports,
enforcing prohibition on contraband and regulating the
import and export of goods.
2. With a focus on preventing smuggling and
enforcing strict regulations regarding the importation of
drugs, narcotics and psychotropic substances at
Digitally
signed by
international airports, the Air Intelligence Unit frequently
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intercepts contraband which is often concealed in luggage
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or swallowed as capsules and the individuals caught for
smuggling are arrested under the NDPS Act 1985.
3. The complainant/customs acting under the
provisions of the Narcotic Drugs and Psychotropic
Substances Act (hereinafter referred to as the NDPS Act)
recorded a complaint bearing File no. VIII(AP) (10)
P&I/3208-D/Arrival/2021 under sections 8/21/23/29 NDPS
Act and initiated an investigation in the matter which
revealed that the accused persons Sydney John-Brain
O’Grady and Quentin Deacon imported Diacetylmorphine
(Heroin) inside India by concealing the same in their
baggage.
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SC no. 867/2021 Customs Vs Sydney John-Brain O’Grady
4. Facts of the case:
4.1 The case of the Customs, in brief, is that on
27.06.2021, accused no. 1 Sydney John-Brain O’Grady and
accused no. 2 Quentin Deacon came to India by Flight no.
QR-578 from Doha to Delhi and accused no. 1 was carrying
one black colour Trolley bag having tag no. 0157393549
and one black colour backpack as cabin bag and accused no.
2 was carrying one beige checked in trolley bag Tag no.
0157392647 and one black colour backpack as cabin bag.
4.2 On the basis of suspicion, both the accused persons
were intercepted after they had crossed the Green Channel
Digitally
and were approaching Exit Gate, and asked by the Customs
signed by
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GOEL
KHARB
Date:
Officer on duty, whether they were carrying any dutiable or
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contraband or prohibited goods, to which they replied in
negative. Thereafter, their baggages were scanned through
‘X-Ray Baggage Inspection Machine’ and during X-ray,
some suspicious images were noticed in their checked-in
baggages. During Door Frame Metal Detector (DFMD)
examination of both the accused persons, no beep sound
was heard.
4.3 Both the accused persons along with their bags,
were taken to the Customs Preventive Room at International
Arrival Hall of the T-3, IGI Airport for further verification
and two panchas i.e. Anil Kumar Gautam and Krishan
Devganh were called to witness the search proceedings.
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SC no. 867/2021 Customs Vs Sydney John-Brain O’Grady
4.4 Thereafter, Notice under Section 102 of the Customs
Act, 1962 and notice under Section 50 of the NDPS Act,
1985 were served upon accused persons by the Customs
Officer, wherein they were informed, that their personal
search and search of their baggage could be conducted in
the presence of a Magistrate or a Gazetted Officer of
Customs and the accused persons gave their consent on both
the Notices itself that their personal and baggage search
could be conducted by any Customs Officer.
4.5 During the search of the black backpack of Accused
No. 1, no incriminating material was found. On search of
black trolley bag carried by accused No. 1, the bag was
Digitally
signed by
found to contain clothes, used personal effects, and 08
MANU MANU GOEL
black-colour plastic coffee bags of “Black Gold” mark.
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Upon further examination, 08 unmarked white cloth
packets, each wrapped in transparent plastic poly-bags and
bearing handwritten marking “7.77” along with round inked
stamps depicting an eagle engraving with Arabic writing,
were recovered from inside the said coffee bags. The
packets contained an off-white powdery/granular substance
weighing approximately 8000 grams in total, suspected to
be a narcotic substance. The off-white colour
powdery/granular substance was further kept in a
transparent poly bag weighing 27 grams which was further
kept in a plastic container weighing 480 grams
approximately, thus total weight came to be 8500 grams
approximately.
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SC no. 867/2021 Customs Vs Sydney John-Brain O’Grady4.6 During the search of the black backpack of accused
No. 2, no incriminating material was found. On search of
the beige checked-in trolley bag bearing Tag No.
0157392647 carried by accused No. 2, the bag was found to
contain clothes, used personal effects, and 05 boxes of
“BOKOMO WEET-BIX Wholegrain Wheat Biscuits.”
From the said bag, 10 transparent plastic packets containing
an off-white powdery/granular substance were recovered,
each enclosed in a white cloth packet bearing a blue circular
stamp marked “BLUE SAPHIRE 555 & 999,” and further
wrapped in outer plastic coverings, collectively concealed
within the said biscuit boxes. The total weight of the
Digitally
signed by
recovered substance was approximately 10,000 grams,
MANU MANU GOEL
suspected to be a narcotic substance. The off-white colour
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powdery/granular substance was further kept in a
transparent poly bag weighing 27 grams which was further
kept in a plastic container weighing 480 grams
approximately, thus total weight came to be 10500 grams
approximately.
4.7 Besides above, during personal and baggage search
of accused no.1, Boarding pass of Flight no. QR 578 dated
26.06.2021 from Doha to Delhi; one old and used mobile
no. +27-0835340890; Passport no. A09385895 issued on
28.05.2021 of Republic of South Africa; Currency USD-67,
South African Rand-480; Qatar Riyal-8; INR 1580, one coin
of 5 Rand; One black colour backpack containing Old andPage no. 6 of 52
SC no. 867/2021 Customs Vs Sydney John-Brain O’Gradyused personal effects and old and used personal effects in
Black Colour Trolley bag were found.
4.8 Besides above, during personal and baggage search
of accused no.2, Boarding pass of Flight no. QR 578 dated
26.06.2021 from Doha to Delhi; one old and used mobile
LG K 41S having mobile no. +91-6909891397 and one old
and used blue colour Nokia keypad phone having mobile
no. +27-0685324986; Passport no. A08575933 issued on
11.06.2019 of Republic of South Africa; Currency USD-32,
South African Rand-100; Qatar Riyal-11; INR 5200, Rand
coin of value 9 and 2 cent coins; One black colour backpack
containing Old and used personal effects and old and used
Digitally
signed by
personal effects in Beige Colour Trolley bag were found.
MANU MANU
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4.9 The representative samples of the recovered off
white coloured power/granules recovered from each of the
accused persons, suspected to be narcotics substances were
tested with the help of Modified Narcotic Drugs Detection
Kit and the substance tested positive for “Heroin”. The
transparent plastic boxes were seized under Section 43(a)
the NDPS Act, 1985 by the Customs Officer under
panchnama dated 27.06.2021 and wrapped with customs
tape and further with white marking cloth, stitched and
sealed with Brass Seal having mark “IGI Air Customs New
Delhi brass seal having mark ‘D’, a paper slip duly signed
by Customs Officer, panch witnesses, accused persons was
affixed thereon and detained under D.R. No.24461 andPage no. 7 of 52
SC no. 867/2021 Customs Vs Sydney John-Brain O’Grady24463 both dated 27.06.2021 and deposited in the Non-
valuable godown.
4.10 The concealing material i.e. 08 packets of black
colour plastic coffee bags of black gold mark recovered
from accused no. 1 were placed inside brown colour
cardboard carton and marked as P-1 and 10 plastic packets
each placed inside white coloured cloth packet having
circular stamp in blue colour marked with Blue Saphire 555
and 999 and mark P2 was given and both were sealed with
customs plier seal ‘PD IGI on one side and Ashok Stambh
on other side and after affixing paper slip, were detained
vide DR no. 24462 and 24464 both dated 27.06.2021 and
Digitally
signed by
the same were deposited in the Non Valuable Godown and
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relevant photos were taken during the said recovery
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proceedings.
4.11 Brass seal was got issued and after sealing, it was
deposited back. Thereafter, separate statements of the
accused persons were recorded under section 67 of the
NDPS, Act, 1985 Thereafter, both accused were put under
arrest after informing them grounds of their arrest. The
accused persons were medically examined and produced
before the court from where they were remanded to J.C.4.12 Thereafter, the application under section 52-A of the
NDPS Act 1985 was moved and proceedings in terms of
section 52-A of N.D.P.S Act were conducted on 15.07.2021Page no. 8 of 52
SC no. 867/2021 Customs Vs Sydney John-Brain O’Gradyand 04 representative samples SO1, SO2, SD1 and SD2 of
05 gms each were drawn in respect of accused no. 1 and
accused no. 2. The samples and remnant case property were
sealed with the seal of the court i.e. ‘PG’ and signed by the
court and stepwise 19 photographs of the proceedings were
taken. On conclusion of proceedings, the samples,
envelopes and remaining sealed property was handed over
to the Incharge Godown.
4.13 On 23.07.2021, Sh. Amar Singh, ACO under
authorization dated 23.07.2021 issued by Sh. Jyotiraditya,
Joint Commissioner, SIU, collected envelope containing
sample SO1 in respect of accused Sydney John Brain
Digitally
signed by
O’Grady and sample SO2 in respect of accused Quentin
MANU MANU GOELDeacon from the Godown Incharge, by making
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endorsement in the Godown register and took them to
C.R.C.L. and deposited them against the receipt dated
23.07.2021 issued by the laboratory.
4.14 As per report of Chemical examiner, the samples
marked SO1 and SO2 under reference, answered positive
test for (Heroin) Diacetylmorphine (Heroin) along with
Acetylcholine and 6-Monoacetylmorphine and Caffeine.
4.15 After completion of investigation, charge sheet was
filed against the accused persons under Sections 8/21/23/29
NDPS Act.
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SC no. 867/2021 Customs Vs Sydney John-Brain O’Grady
5. Cognizance was thereafter taken upon the complaint
filed by Customs. Copy of charge-sheet and annexed
documents were supplied to both accused persons in
compliance of Section 207 CrPC. On 03.03.2022, charge
for the offence punishable under Sections 8 NDPS Act,
21(c) and 23(c) of NDPS Act was framed against the
accused persons to which they pleaded not guilty and had
claimed trial.
6. In the course of trial, customs examined the
following 11 witnesses :-
PW1 Sh. Santosh Yadav ACO
PW2 Sh. Vijay Kumar Superintendent
Digitally
signed by
PW3 Sh. Amit Khatri, Sr. Intelligence Officer
MANU MANU GOELPW4 Sh. Amar Singh, Superintendent
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PW5 Sh. Jyotiraditya, Additional Commissioner.
PW6 Sh. Asif Rashid Siddiqui, Assistant Commissioner
PW7 Sh. Anil Kumar Gautam, Panch Witness.
PW8 Sh. Krishan Devganh, Panch Witness.
PW9 Sh. C L Meena, ACO
PW10 Sh. Vikram Pal, Superintendent.
PW11 Sh. Pravesh ACS.
7. Before proceeding to discuss the testimonies of
complainant witnesses, it is relevant to note the exhibited
documents and witnesses who exhibited the same which are
given below :-
Witness Identification Description
ExhibitingPage no. 10 of 52
SC no. 867/2021 Customs Vs Sydney John-Brain O’GradyPW1 Sh. Santosh Ex.PW1/A Summon under section 67 NDPS
Yadav, ACO Act to panch witness Anil Kumar
Gautam
Ex.PW1/B Statement under section 67 of
panch witness Anil Kumar
Gautam
Ex.PW1/C Summon under section 67 NDPS
Act to panch witness Krishan
Devganh
Ex.PW1/D Statement under section 67 of
panch witness Krishan Devganh
Ex. PW1/E Complaint along with list of
documents and list of witnesses
PW2 Sh. Vijay Ex.PW2/A Personal search attached with
Kumar notice under section 50 NDPS Act
Superintendent of accused Sydney John Brain
O’Grady
Ex.PW2/B Personal search attached with
notice under section 102 Customs
Act of accused Sydney John Brain
Digitally
signed by
MANU MANU GOELO’Grady
KHARB
GOEL Date:
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Ex.PW2/C Personal search attached with
notice under section 50 NDPS Act
of accused Quentin Deacon
Ex.PW2/D Personal search attached with
notice under section 102 Customs
Act of accused Quentin Deacon
Ex.PW2/E Summon to accused Sydney John
Brain O’Grady under section 67
NDPS Act
Ex.PW2/F Statement to accused Sydney John
Brain O’Grady under section 67
NDPS Act
Ex.PW2/G Summon to accused Quentin
Deacon under section 67 NDPS
Act
Ex.PW2/H Statement to accused Quentin
Deacon under section 67 NDPS
Act
Ex.PW2/I Seizure report of both accusedPage no. 11 of 52
SC no. 867/2021 Customs Vs Sydney John-Brain O’Gradypersons
Ex.PW2/J Arrest report of both accused
persons
Ex.PW2/K Letter to Medical Superintendent,
DDU for medical examination of
both accused persons.
PW3 Sh. Amit Ex.PW3/A Letter dated 27.06.2021 to panch
Khatri, ACO witness Anil Kumar Gautam and
Krishan Devganh
Ex.PW3/B Notice under section 102 Customs
Act to Sydney John Brain
O’Grady
Ex.PW3/C Seizure memo of passport and visa
Sydney John Brain O’Grady
Ex.PW3/D Boarding pass of accused Sydney
John Brain O’Grady
Ex.PW3/E Baggage tag of Sydney John Brain
O’GradyMANU MANU
Digitally
signed by
GOEL
Ex.PW3/F Notice under section 102 Customs
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Ex.PW3/G Seizure memo of passport and visa
Sydney John Brain O’Grady
Ex.PW3/H Boarding pass of accused Sydney
John Brain O’Grady
Ex.PW3/I Baggage tag of Sydney John Brain
O’Grady
Ex.PW3/J Notice under section 50 NDPS Act
to accused Sydney John Brain
O’Grady
Ex.PW3/K Notice under section 50 NDPS Act
to accused Quentin Deacon
Ex.PW3/L Panchnama dated 27.06.2021
Ex.PW3/M DR no. 24461 dated 27.06.2021
Ex.PW3/N Seal impression sheet for accused
Sydney John Brain O’Grady
Ex.PW3/O Inventory of seized goods of
accused Sydney John Brain
O’GradyPage no. 12 of 52
SC no. 867/2021 Customs Vs Sydney John-Brain O’GradyEx.PW3/P DR no. 24463 dated 27.06.2021
Ex.PW3/Q Seal impression sheet for accused
Quentin Deacon
Ex.PW3/R Inventory of seized goods of
accused Quentin Deacon
Ex.PW3/S Seizure memo under section 43(a)
in respect of accused Quentin
Deacon
Ex.PW3/T Seizure memo under section 43(a)
in respect of accused Sydney John
Brain O’Grady
Ex.PW3/U Request letter for issuance of brass
seal
Ex.PW3/V Seal return letter
Ex.PW3/W Arrest memo of accused Sydney
John Brain O’Grady
Ex.PW3/X Arrest memo of accused Quentin
Deacon
DigitallyMANU MANU
signed by
KHARB
GOEL Ex.PW3/Y Jamatalashi of accused Sydney
GOEL Date: John Brain O’Grady
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Ex.PW3/Z MLC of accused
Ex.PW3/A1 Application under section 52-A
NDPS Act
Ex.PW3/A2 Proceedings under section 52-A
NDPS Act dated 15.07.2021
Ex.PW3/A3 Proceedings under section 52-A
NDPS Act dated 26.07.2021
Ex.PW3/A4 Photographs of the proceedings
Ex.PW3/A5 Destruction certificate of the case
property
PW4 Sh. Amar Ex.PW4/A Letter to deposit of sample SO1 to
Singh ACO CRCL
Ex.PW4/B Letter to deposit sample SO2 to
CRCL
Ex.PW4/C Acknowledgment of deposit of
samples SO1 and SO2 to CRCL
PW7 Sh. Anil Ex.PW7/A Notice to join the proceedingsPage no. 13 of 52
SC no. 867/2021 Customs Vs Sydney John-Brain O’GradyKumar Gautam Ex.PW7/B DR no.24162
panch witness Ex.PW7/C DR no.24164
Ex.PW7/D DR no.24165
Ex.PW7/E DR no.24166
PW9 Sh. C L Ex.PW9/A Copy of godown register
Meena,
Superintendent
PW10 Sh. Vikram Ex.PW10/A Entry no. 128 of Godown Register
Pal
Superintendent
PW11 Sh. Ex.PW11/A Sample pertaining to accused
Parvesh ACS Sydney John Brain O’Grady
deposited in godown by ACO
Shankar Lal
Ex.PW11/B Sample pertaining to accused
Quentin Deacon deposited in
godown by ACO Shankar LalDigitally
MANU MANU
signed by
KHARB
GOEL 8. PROSECUTION EVIDENCE
GOEL Date:
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8.1 PW1 ACO Santosh Yadav deposed that on
14.12.2021 summons Ex.PW1/A was issued to panch
witness Anil Kumar Gautam and recorded his statement
Ex.PW1/B under section 67 NDPS Act. PW1 also issued
summon Ex.PW1/C to panch witness Krishan Devganh and
recorded his statement Ex.PW1/D under section 67 NDPS
Act. PW also proved complaint alongwith list of witnesses
Ex.PW1/E.
8.2 PW2 is Superintendent Vijay Kumar. He deposed that
pursuant to notices under Section 102 of the Customs Act,
1962 and Section 50 of the NDPS Act, 1985, personal and
baggage searches of the accused Sydney John Brain
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O’Grady and accused Quentin Deacon were conducted in
the presence of the witness and from accused Sydney John
Brain O’Grady, 8000 grams of off-white powder (suspected
narcotics) recovered from a black trolley bag (Tag No.
0157393549) and from accused Quentin Deacon 10,000
grams of similar substance recovered from a beige trolley
bag (Tag No. 0157392647). The recovered substances were
secured in transparent polybags and plastic containers.
Other personal items were also seized as per respective
personal search memos. Ex.PW-2/A to Ex.PW-2/D. On
27.06.2021, summons under Section 67 NDPS Act were
issued to both accused and they gave their voluntary
statements Ex. PW-2/F and Ex.PW-2/H wherein they
Digitally
signed by
admitted possession, recovery, and illegal importation of
MANU MANU GOEL
narcotic drugs. He deposed that seizure and arrest reports
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Ex. PW-2/I and PW-2/J were prepared by the IO and duly
signed and verified by the witness and superior officer Shift
AC. He issued letter Ex. PW-2/K to DDU Hospital, New
Delhi for medical examination of both accused.
8.3 PW3 is seizing IO/ACO Amit Khatri. He deposed
about the interception of both the accused persons, the
recovery and seizure proceedings, arrest of the accused
persons and the entire investigation done by him in the
present case and proved the documents prepared by him
during investigation which has been discussed in detail in
the discussion to follow.
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8.4 PW4 is Sh. Amar Singh ACO. He deposed that on
the basis of authorization letters dated 23.07.2021
Ex.PW4/A and Ex.PW4/B, issued by Joint Commissioner
Jyotiraditya, he deposited samples SO1 and SO2, pertaining
to accused Sydney John Brain O’Grady and Quentin
Deacon along with Test Memos dated 15.07.2021 in
duplicate, duly sealed with the seal of ‘PG’ at CRCL and
obtained receipts Ex. PW4/C from Sh. Sunil Bagotia, ACE.
8.5 PW5 is Sh. Jyotiraditya Joint Commissioner, SIU,
Customs, Delhi. PW5 authorized ACO Amar Singh to
collect the samples SO1 and SO2 of accused persons
Sydney John Brain O’Grady and Quentin Deacon vide
Digitally
authorization letters Ex.PW4/A and Ex. PW4/B and to
signed by
MANU MANU GOEL
GOEL
KHARB
Date:
deposit them at CRCL.
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+05308.6 PW6 is Sh Asif Rashid Siddiqui was the Assistant
Commissioner, Customs. He deposed that seizure report
Ex.PW2/I of the accused persons Sydney John Brain
O’Grady & Quentin Deacon and arrest report Ex.PW2/J of
the accused persons Sydney John Brain O’Grady and
Quentin Deacon was put up before him under Section 57
NDPS Act.
8.7 PW7 is Sh. Anil Kumar Gautam, panch witness.
PW7 deposed that on 27.06.2021, while posted at IGI
Airport, he and another public witness, Kishan Devganh
were joined as an independent witness by ACO Amit Khatri
vide notice Ex. PW7/A. Two accused persons, namely
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Sydney and Quentin were present. PW7 further deposed
that accused Sydney was served notice under Section 102
of the Customs Act Ex. PW3/B, notice under Section 50
NDPS Act Ex. PW3/J. Thereafter, search was conducted by
ACO Amit Khatri in presence of ACS Vijay Kumar after
informing rights. Search memo of Sydney under customs
Act is Ex. PW2/B. Search memo under section 50 NDPS
Act Ex. PW2/A. From baggage of accused Sydney, off-
white powdery substance weighing 8 kg (gross 8.5 kg) was
recovered.
Thereafter, notice under Section 102 of the Customs
Act Ex. PW3/F and notice under Section 50 NDPS Act Ex.
PW3/K was served to accused Quentin and he was informed
Digitally
signed by
about his rights. Search memos Ex. PW2/D and Ex. PW2/C
MANU MANU GOEL
were made. From baggage search of accused Quentin, off-
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white powdery substance weighing 10 kg (gross 10.5 kg)
was recovered. He further deposed that panchnama
proceedings Ex.PW3/L were conducted from 03:40 a.m. to
09:00 AM. He identified seizure memo of accused
Quentin Ex. PW3/S and seizure memo of accused Sydney
Ex. PW3/T. He identified his signatures on various DR
receipts Ex.PW3/N, Ex.PW7/B, Ex.PW3/P, Ex.PW7/C,
Ex.PW7/D, Ex.PW7/E, panchnama Ex.PW3/L, seizure
memo Ex.PW3/S. He further deposed that on 14.12.2021,
he was again called by the ACO Santosh Yadav vide notice
Ex. PW1/A and his statement was recorded vide Ex.
PW1/B.Page no. 17 of 52
SC no. 867/2021 Customs Vs Sydney John-Brain O’Grady8.8 PW8 Krishan Devganh is the second panch witness.
He deposed that on 27.06.2021, while working as
housekeeping staff on night duty, he was called by Customs
Officer Amit, between 03:00 a.m. and 04:00 a.m., where he
saw two passengers apprehended, including one identified
as Sydney John Grady, while he does not recall the name of
the other accused. In his presence, a black bag of the said
accused was searched and approximately 8 kg of NDPS
substance was recovered, and from a brown bag of the other
accused, approximately 10 kg of similar substance was
recovered; the same were sealed and seized. The
Investigating Officer arrested both accused and prepared the
panchnama Ex. PW3/L. His signatures were also taken on
Digitally
signed by
the boarding passes as Ex.PW3/H and Ex. PW3/D and
MANU MANU GOEL
copies of passports as Ex. PW3/C. Prior to baggage search,
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personal search of the accused was conducted and
currency/articles were recovered.
PW8 was declared hostile and he was cross
examined by Ld. SPP for the Customs. During cross
examination PW8 identified his signatures on search
memos Ex. PW2/B, Ex.PW2/A, Ex.PW2/C, Ex. PW2/D,
seizure memo Ex.PW3/S and Ex. PW3/T, DR receipts
Ex.PW3/N and Ex.PW3/P, Ex.PW7/B, Ex.PW7/C,
Ex.PW7/D, Ex.PW7/E.8.9 PW9 C L Meena is the then Godown Incharge Non-
Valuable. He deposed that on 27.06.2021, he received two
transparent plastic containers wrapped with white marking
Page no. 18 of 52
SC no. 867/2021 Customs Vs Sydney John-Brain O’Grady
cloth duly sealed with customs brass seal of shift D and
deposited the same vide entry no. 91 and 92 Ex. PW9/A.
He further deposed that ACO Amit Khatri also deposited
another case property Mark P1 duly sealed and he counter
signed Ex.PW3/O and vide entry no. 89 and 90 in the
godown register Ex.PW3/A-5.
8.10 PW10 is Sh. Vikram Pal Godown Incharge Non-
Valuable. He deposed that on 30.09.2021, he received two
sealed transparent plastic pack B-21 containing remnant
sample SO1 and SO2 and he deposited the same vide entry
no. 128 and 129 Ex.PW10/A.
Digitally
signed by
8.11 PW11 is Sh. Pravesh Godown Incahrge Non-
MANU MANU GOEL
Valuable. He deposed that on 15.02.2021, he received two
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white envelopes containing 5g samples each SO-1 (for lab)
and SD-1 (for godown) pertaining to accused Sydney John
Brain O’Grady duly sealed with the court mark “PG” and
recorded in the godown register at Entry No. 110 Ex.
PW11/A. On 23.07.2021, in compliance with the authority
letter Ex. PW4/A from Joint Commissioner Sh. Jyotirditya,
he handed over the sealed samples to ACO Amar Singh for
onward submission to CRCL, Pusa. PW11 also received
two envelopes containing samples SO-2 (for lab) and SD-2
(for godown) pertaining to accused Quentin Deacon duly
sealed with court mark “PG” and recorded Entry No. 111
Ex. PW11/B. These samples were also handed over toPage no. 19 of 52
SC no. 867/2021 Customs Vs Sydney John-Brain O’Grady23.07.2021 to ACO Amar Singh under the same authority
letter Ex. PW4/A.Admission and Denial of Documents Under Section 294
CrPC
9. Accused Sydney John Brain O’ Grady and
Quentin Deacon made statement under section 294 Cr.P.C.
whereby they admitted prosecution documents i.e. M.E. no.
7803 dated 27.06.2021 of accused Sydney John Brain
O’Grady as Ex. PW3/2, ME no. 7802 dated 27.06.2021 of
accused Quentin Deacon as Ex. A-1, Proceedings under
section 52 A NDPS Act dated 15.07.2021 as Ex PW3/A2,
Photographs of sampling as Ex. PW3/A4 and CRCL report
Digitally
signed by
dated 08.09.2021 as Ex. A-5 and as such examination of
MANU MANU GOEL
corresponding witnesses namely Dr. Jagriti Sangwan, Ms.
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Paridhi Gupta, Ld. MM, Sh. Sunil Bagotia, Assistant
Chemical Examiner and Dr. Poornima Mishra.
10. After examination of all the prosecution witnesses,
prosecution evidence was closed vide order dated
19.11.2025.
Statement of Accused persons u/s 313 CRPC
11. Upon closure of evidence by the customs, the
statements and additional statements of accused persons
were recorded under Section 313 CrPC wherein they denied
all the incriminating evidence put to them and denied all the
proceedings of recovery and seizure. They stated that they
Page no. 20 of 52
SC no. 867/2021 Customs Vs Sydney John-Brain O’Grady
have been falsely implicated in the present case and that
recovery was planted on them. Accused persons further
stated that they do not want to lead defence evidence and
thereafter final arguments were heard. Written arguments
were also filed by both sides.
ARGUMENTS OF PROSECUTION:
12. Sh. Punnett Singhal, Ld. Special Public Prosecutor
for Customs submitted on the lines of case filed by the
department as well as on the lines of the deposition of the
aforesaid witnesses. Ld. SPP for the Customs stated that
accused persons were carrying trolley bags out of which
white powdery substance i.e. Heroin weighing 8 kgs and 10
Digitally
signed by
kgs was recovered in commercial quantity and the said
MANU MANU GOEL
contraband was imported into India illegally and thus both
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the accused persons are liable to be punished for the
offences committed by them. Ld. SPP for customs submits
that Customs has been able to prove through its witnesses
that the accused persons were in conscious possession of the
drugs recovered from their trolley bags which also find
corroboration from their statement under Section 67 of
NDPS Act and it is prayed that the accused persons be
punishable for the offence under Section 8/20/23 of NDPS
Act.
ARGUMENTS OF DEFENCE:
13. On the other hand, Mr. Meghan and LAC Ms. Nidhi
Kalia, Ld. Counsels for the accused persons submitted that
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SC no. 867/2021 Customs Vs Sydney John-Brain O’Grady
accused persons have been falsely implicated in the present
case and they have no concern with the alleged recovery of
Heroin. Ld. Defence Counsel argued that there was a total
non-compliance of provisions of NDPS Act as the substance
allegedly recovered from all the packets was mixed together
without prescribed procedure. He also contended that there
was failure of customs to prove safe chain of custody and
customs has failed to ensure independent panch witnesses
at the time of recovery and has also not failed the original
property in the court and customs has failed to prove its case
o naccount of so many looholes.
14. I have considered the rival submissions and gone
Digitally
signed by
through the voluminous documents and evidence available
MANU MANU GOEL
on record.
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+0530LAW APPLICABLE IN THE CASE
15. Stringent provisions are provided under law qua
punishment in cases under the NDPS Act. The scheme of
the NDPS Act and its objects and reasons mandate that the
prosecution must prove compliance with various safeguards
ensured under the Act. The NDPS Act prescribes stringent
punishment and therefore, a balance must be struck between
the need for the law and the enforcement of such law on one
hand and the protection of the citizen from oppression and
injustice on the other. The provisions are intended for
providing certain checks on the exercise of power by the
authority concerned to rule out any possibility of false
Page no. 22 of 52
SC no. 867/2021 Customs Vs Sydney John-Brain O’Grady
implication or tampering with the record or the
contraband.
16. The NDPS Act is divided into VI Chapters
accommodating 83 Sections out of which Chapter V
outlines the procedure to be followed by the officers
appointed for the implementation of the various provisions
of the Act. The investigating agency must follow the
procedure as envisaged by the statute scrupulously and
failure to do so must be viewed by the higher authorities
seriously inviting action against the concerned officials so
that laxity on the part of the investigating authority is
curbed.
Digitally
signed by
MANU MANU GOEL
17. Section 54 of NDPS Act places burden of proof on
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the accused as regards the possession of the contraband to
account for the same satisfactorily but the statutory
presumptions under Section 54 of the NDPS Act must not
be mechanically invoked. Courts must scrutinize the
totality of evidence– testimonies of official witnesses,
presence of independent witnesses, chain of custody,
forensic results, and the presence or absence of
contradictory evidence. Thus, a “cumulative view”
decides whether the contraband truly was recovered from
the accused and was indeed illicit. Only if procedural
defects jeopardize or cast a serious doubt on the
authenticity of the contraband or the fairness of the
investigation, does the likelihood of an acquittal arise andPage no. 23 of 52
SC no. 867/2021 Customs Vs Sydney John-Brain O’Gradyconviction can stand only if, despite procedural lapses, the
overall evidence remains credible.
Presumption of Culpable Mental State
under section 35 NDPS Act
18. Section 35 of the NDPS Act, deals with presumption
of culpable mental state of an accused requiring the Court
to presume the existence of such mental state for a
prosecution under the Act. Furthermore, an explanation is
provided in the provision which states- “In this section
“culpable mental state” includes intention motive,
knowledge of a fact and belief in, or reason to believe, a
fact.”
Digitally
signed by
MANU MANU GOEL
19. The term ‘conscious possession’ has not been
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explicitly mentioned in NDPS Act keeping it apart from the
term ‘possession’, but various judicial enactments from the
Supreme Court and High Courts have evolved the term
‘conscious possession’ according to the needs and
circumstances of the respective case. According to Section
35 of NDPS ACT, 1985:
(1) In any prosecution for an offence under this Act
which requires a culpable state of mind of the accused, the
Court shall presume the presence of such state of mind but
it shall be a defense for the defendant to prove the fact that
he had no such state of mind concerning the act charged as
an offense in that prosecution. In this section, the culpablePage no. 24 of 52
SC no. 867/2021 Customs Vs Sydney John-Brain O’Gradystate of mind includes intention, motive, knowledge of a
fact, and belief in, or reason to believe, a fact.
(2) For this section, a fact is said to be proved only when
the court believes it to exist beyond a reasonable doubt
and not merely when its existence is established by a
preponderance of possibility.”
20. Thus, we can infer that conscious possession means
a mental state of possession that is bound to be considered
along with physical possession of the illicit material.
Conscious possession implies that the person knew that he
had the narcotic substance in his control or had the
knowledge of its illegal nature. Just like in criminal law,
Digitally
signed by
‘Actus Reus’ and ‘Mens Rea’ are two essential ingredients
MANU MANU GOEL
to constitute a criminal offense, the same goes for the NDPS
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Act where physical, as well as mental possession of drugs,
are essential elements to constitute an offense under the
same law. Not only physical possession of drugs will have
to be proved but the mental state of the accused used behind
committing the act will also have to be proved, rather the
‘conscious possession’ of the drugs by the accused will have
to be evidenced.
21. An accused is presumed to be innocent and it is the
burden of the prosecution to prove any wrongdoing beyond
any reasonable doubt. The burden is heavy and entails that
after all the prosecution evidence has been appreciated, the
only conclusion which the court can draw is the guilt of the
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SC no. 867/2021 Customs Vs Sydney John-Brain O’Grady
accused and no other conclusion can be drawn. The rule of
conscious possession, thus provides a balance between
strict enforcement of law on one hand and protecting the
rights of the accused on the other and for attracting the
provision of Section 54 of NDPS Act, it is essential for the
prosecution to establish the element of possession of
contraband by the accused beyond reasonable doubt for
the burden to shift to the accused to prove his innocence.
22. ISSUE FOR DETERMINATION
Now it is to be seen whether customs has been able
to prove that the drugs recovered in this case were recovered
from the conscious possession of accused persons and that
they were illegally importing the same into India by
Digitally
signed by
MANU
GOEL
MANU GOEL
KHARB concealing the same in their baggage.
Date:
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+0530Mixing of Contraband and Violation of S.O. 1/88 and 1/99
23. There is a violation of the manner in which the
samples are drawn in the present case. As per the case of
customs, during the search of the black trolley bag of
accused No. 1, 08 black-colour plastic coffee bags and 08
unmarked white cloth packets, each wrapped in transparent
plastic poly-bags were recovered from inside the said coffee
bags and those packets contained an off-white
powdery/granular substance, total weighing approximately
8000 grams of Heroine. Similarly, on search of the beige
color trolley bag carried by accused No. 2, 05 boxes
Biscuits and 10 transparent plastic packets containing some
off-white powdery/granular substance, total weighing
Page no. 26 of 52
SC no. 867/2021 Customs Vs Sydney John-Brain O’Grady
approximately 10,000 grams were recovered, each enclosed
in a white cloth packet and further wrapped in outer plastic
coverings, collectively concealed within the said biscuit
boxes, suspected to be narcotic substance.
24. It is clear from the above re-iteration of facts that
the white powdery substance contained in the 8 and 10
pouches found in the respective bags of both the accused
was transferred to a single pouch which was later kept
inside a plastic container and converted into a pullanda and
further detained vide DR no. 24428. The seized substance
was then produced before the Ld. Magistrate and two
representative samples Mark SO-1 and Mark SD-1 were
Digitally
drawn.
signed by
MANU MANU GOEL
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25. In the Bail Appl. no. 3233/2022 in the case of
Laxman Thakur Vs. State decided on 14.12.2022, it was
held by Hon’ble High Court of Delhi :-
“7. The judgment of Sumit Tomar (supra) has
been duly considered by the Coordinate Bench of this
Court titled in a judgment titled as “Santini Simone
vs. Department of Customs [2020 SCC OnLine Del
2128] and relevant paras read as under:
“57. In Sumit Tomar v. State of Punjab,(2013) 1 SCC
395, the Court was examining the case where according
to the prosecution, two plastic bags containing
“bhooki” opium powder were recovered from the
dickey of the car. The contents of both the bags were
mixed and two samples of 250 grams each were taken
out. The remaining contraband weighing 69.5 kgs were
sealed in two bags and the samples were sent to
Forensic Science Laboratory for examination. It was
contended on behalf of the appellant that the procedure
followed by the concerned seizing officials was
irregular and the alleged contraband could not be mixed
and the samples taken thereafter. It was contendedPage no. 27 of 52
SC no. 867/2021 Customs Vs Sydney John-Brain O’Gradythat since the punishment is based on the quantity
of contraband recovered, mixing of substances from
two bags was unacceptable. The said contention was
rejected. The Court held that merely because different
punishments have been prescribed depending on
quantity of the contraband, the same has not caused any
prejudice to the appellant. The Court reasoned that even
after taking two samples of 250 grams each, 69.5 kgs of
contraband was still available.
58. In Amani Fidel Cheri Vs. NCB, Criminal
Appeal No. 1027/15 by Hon’ble High Court of Delhi it
was held that:- four brown colour packets were
allegedly recovered. The said packets contained
powdery substances, which on being tested, yielded a
positive result for heroin. The substances were then
mixed properly and weighed with the help of an
electronic machine and it was found that the same
weighed 1.5 kgs. Thereafter, two samples of 5 grams
each were drawn from the recovered substance and
put into zip lock pouches. It was contended that the
procedure adopted was not permissible. The procedure
of transferring the contents of all four packets into one
and then drawing a sample from the mixture had caused
Digitally
signed by
MANU MANU GOEL
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whether the four packets contained the alleged narcotic.
+0530The Court found that the procedure adopted fell foul of
the Standing Order No. 1/88 dated 15.03.1988 issued
by the Narcotics Control Bureau (which was pari
materia to Standing Order 1/1989 dated 13.06.1989,
issued by Department of Revenue, Ministry of Finance,
Government of India). The Court held that where
more than one container/package is found, it is
necessary that samples be drawn from each separate
container/package and be tested with a field- testing kit.
If the container/packages are identical in shape, size
and weight then lots of 10 or 40 container/packages
may be prepared. Thereafter, representative samples
from each container/package be drawn.
59. In Basant Rai (supra), a Coordinate Bench of
this Court considered a case where the accused was
allegedly found carrying a polythene bag, containing
eight smaller polythene bags, containing a brown
colour substance, which was alleged to be charas. The
Investigating Officer had taken small pieces from each
packet and mixed the same and thereafter, drawn two
samples which were sent to FSL for analysis. The CourtPage no. 28 of 52
SC no. 867/2021 Customs Vs Sydney John-Brain O’Gradyfound fault with the said procedure and allowed the
appeal. The Court held as under:
“25. After hearing both the learned counsel
for parties and going through the Trial Court
Record, I find force in the submission of
learned counsel for appellant. Admittedly,
the samples were drawn after breaking small
pieces from 08 of the polythene bags which
were allegedly kept in a green coloured bag
by the appellant in his right hand. The IO
prepared two samples of 25 grams each after
taking a small quantity from each of the
slabs.
26. Though the settled law is that if it is not
practicable to send the entire quantity then
sufficient quantity by way of samples from
each of the packets of pieces recovered should
be sent for chemical examination. Otherwise,
result thereon, may be doubted.
27. For example, if the 08 packets were
Digitally
signed by
allegedly recovered from the appellant and
MANU MANU GOEL
KHARB only two packets were having contraband
GOEL
KHARB
Date:
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substance and rest 6 packets did not have any
+0530
contraband; though all maybe of the same
colour, when we mix the substances of all 8
packets into one or two; then definitely, the
result would be of the total quantity and not of
the two pieces. Therefore, the process adopted
by the prosecution creates suspicion. In such
a situation, as per settled law, the benefit
thereof should go in favour of the accused. It
does not matter the quantity. Proper procedure
has to be followed, without that the results
would be negative.”
60. In Edward Khimani Kamau (supra), a Coordinate
Bench of this Court rejected the procedure where the
substance found in nine packets was transferred into
one packet and two samples were drawn from the
same. The Court held that it could not be ascertained
that all nine packets contained heroin.
61. In Charlse Howell @ AbelKom (supra), the NCB
had allegedly recovered 330 grams of heroin. The
powder recovered was packed in 166 polythene strips,
which were concealed in the laces/hem of two
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SC no. 867/2021 Customs Vs Sydney John-Brain O’Grady
lehengas. The concealed powder from the 166 strips
was collected in a transparent polythene and on
weighing, it was found to be 330 grams. Two samples
of five grams were drawn and put separately in zip
lock polythene pouches. A Coordinate Bench of this
Court following the decision of the Supreme Court
in Union of India Vs Bal Mukund , (2009) 12 SCC
161, held that the procedure adopted was not in
conformity with the Standing Order 1/88 dated
15.03.1988, issued by the Narcotics Control Bureau.”
26. As per the judgment of Union of India Vs Bal
Mukund & Others‟ [(2009) 12 SCC 161], Hon’ble
Supreme Court has opined the standing order 1/88 to be a
“requirement of law”. Relevant portion of Standing order
1/88 reads as under:-
“2.4 In the case of Seizure of a single
package/container, one sample (in duplicate) shall be
Digitally
signed by
drawn. Normally, it is advisable to draw one sample
MANU MANU
KHARB
GOEL
(in duplicate) from each packet/container in case of
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seizure of more than one package/container.”
+0530
27. The standing order 1/88 mandates that the
transferring of content of all packets into one and then
drawing a sample from the mixture is not permitted.
28. In my considered opinion, in the present case, the
instructions in 1/88 have not been followed and the sample
has been drawn after mixing the contents of all the 8 and 10
packets into one container. Since the collection of sample
itself is faulty, same has caused serious prejudice to the case
of the applicant.
29. In the case of Laxman Thakur (supra), the Hon’ble
High Court of Delhi relied upon the case of Amani Fidel
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Chris (supra) in which allegedly four brown colour packets
were recovered and on being tested they yielded positive
test for heroin after which the substance was mixed properly
and weighed 1.5 kg, thereafter two samples of 5 grams were
drawn, it was held by Hon’ble High Court of Delhi that the
sample was not representative sample and was in violation
of office order no. 1/88.
30. In the present matter also, it is deposed by PW3 in
his testimony that he put the entire content recovered from
the 8 and 10 packets recovered from each accused in two
separate plastic polybags which was further kept in two
separate plastic containers. Thereafter, the said material
was produced before the court and two samples of 5 grams
Digitally
signed by
MANU
GOEL
MANU GOEL
KHARB each from each plastic container were taken which is in
Date:
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+0530 violation of standing order no. 1/88 & 1/89. In standing
order no. 1/89, it has been mentioned that:
“2.4 In the case of Seizure of a single package/container,
one sample (in duplicate) shall be drawn. Normally, it is
advisable to draw one sample (in duplicate) from each
packet/container in case of seizure of more than one
package/container.”
31. In the opinion of this court, PW3 ought to have
adopted the procedure outlined in the Standing Order 1/88
and 1/89 and then sending the samples for testing. Logical
corollary of these discussions is that the guidelines such as
those present in the Standing Order cannot be blatantly
flouted and substantial compliance therewith must be
insisted upon for so that sanctity of physical evidence in
such cases remains intact. Clearly, there has been no
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substantial compliance of these guidelines by the
investigating authority which leads to drawing of an adverse
inference against them to the effect that had such evidence
been produced, the same would have gone against the
prosecution.
32. The standing order 1/88 & 1/89 mandates that the
transferring of content of all packets into one and then
drawing a sample from the mixture is not permitted. Even
otherwise also, the bunching is permissible as per standing
order 1/88 & 1/89 into lots of 10 packages/containers except
in case of Ganja and Charas in which the case 40 packages
can be bunched into a lot, which is not the present case and
Digitally
signed by
in the present case even the weight of individual polythene
MANU MANU GOEL
packet was not taken by the IO, before mixing them,
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therefore, there is violation of standing order 1/88 & 1/89
during procedure of sampling by Customs and thus the
sample sent to the CRCL was not the representative
sample.
Physical Evidence i.e. Case property not
produced by Customs
33. It is submitted by Ld. Counsels for the accused that
the prosecution has not produced the physical evidence
before the court and hence, no case for conviction is made
out.
34. The prosecution alleged that 8 kgs of heroin was
recovered from 8 black-colour plastic coffee bags of “Black
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SC no. 867/2021 Customs Vs Sydney John-Brain O’Grady
Gold” mark, 08 unmarked white cloth packets, each
wrapped in transparent plastic poly-bags and bearing
handwritten marking “7.77” along with round inked stamps
depicting an eagle engraving with Arabic writing, were
recovered from inside the said coffee bags which was
concealed by the accused Sydney John Brain O’Grady
inside his black color trolley bag.
35. In the same manner, 10,000 grams of Heroine was
alleged to be recovered from beige color trolley bag of
accused Quentin Deacon which he was concealing inside 05
boxes of ‘BOKOMO WEET-BIX Wholegrain Wheat
Biscuits’ and 10 transparent plastic packets each enclosed
in a white cloth packet bearing a blue circular stamp marked
Digitally
signed by
MANU
GOEL
MANU GOEL
KHARB “BLUE SAPHIRE 555 & 999,” and further wrapped in
Date:
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+0530 outer plastic coverings, collectively concealed within the
said biscuit boxes 05 boxes of “BOKOMO WEET-BIX
Wholegrain Wheat Biscuits.
36. So, the physical evidences which was to be proved
by Customs to prove the case before the court against
accused Sydney John were :-
i) The black color trolley bag belonging to the
accused.
ii) 8 black-colour plastic coffee bags of “Black
Gold” mark,
iii) 08 unmarked white cloth packets,
iv) transparent plastic poly-bags (bearing the
handwritten marking “7.77” and round inkedPage no. 33 of 52
SC no. 867/2021 Customs Vs Sydney John-Brain O’Gradystamps depicting an eagle engraving with
Arabic writing) in which the above white cloth
packets were wrapped.
v) The bulk, which establishes the quantity
recovered.
vi) The two samples of five grams each taken from
the bulk amount of heroin, which would be
essential in ascertaining whether the substance
that the accused was allegedly in possession of
was, in fact, heroin.
37. Similarly, the physical evidences which was to be
proved by Customs to prove the case before the court
against accused Quentin Deacon were :-
i) The beige color trolley bag belonging to the
accused.
Digitally
signed by
MANU MANU
KHARB
GOEL Date:
GOEL
ii) 05 boxes of ‘BOKOMO WEET-BIX Wholegrain
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+0530
Wheat Biscuits’
iii) 10 transparent plastic packets
iv) White cloth packets bearing a blue circular stamp
marked “BLUE SAPHIRE 555 & 999 alongwith
wrapped in outer plastic coverings.
v) The bulk, which establishes the quantity recovered.
vi) The two samples of five grams each taken from the
bulk amount of heroin, which would be essential in
ascertaining whether the substance that the accused
was allegedly in possession of was, in fact, heroin.
38. There is no dispute about the fact that neither the
bulk of Heroine recovered in the present case nor the
samples drawn before Ld. Magistrate were ever produced
in this case. Even the concealing material or the other
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physical evidences stated above were not produced in court
and no explanation whatsoever was rendered in that
behalf.
39. It has come in the testimony of PW3 that the
Godown Incharge ACO Praveen Saharan produced the
register wherein it was mentioned at sr. no. 89 and 90
exhibited as Ex. PW3/A5 that the NDPS substance and the
concealing material were destroyed on 19.06.2023. I have
gone through the entries at sr, no. 89 and 90. The entry at sr.
no. 89 relates to the deposit of 8000 grams of Heroine and
on the left-hand side, there is an endorsement that the same
has been destroyed. No minutes of meeting or certificate
Digitally
signed by
issued by the Drug Disposal Committee has been filed on
MANU MANU GOEL
record to show that the case property pertaining to accused
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Sydney has actually been destroyed. Further, the concerned
officer under whose signatures, the said endorsement at sr.
no. 89 was made was never examined by the customs. No
explanation has been filed on record as to why the drug
destruction certificate has not been filed on record.
Furthermore, the entry at sr. no. 90 relates to the deposit of
concealing material but the said entry does not bear any
endorsement regarding destruction of concealing material,
despite that the concealing material was not produced in the
court.
40. It is also pertinent to mention that the entries Ex.
PW3/A5 relate only to the recovery made from accused
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SC no. 867/2021 Customs Vs Sydney John-Brain O’Grady
Sydney and no evidence in any manner has been filed on
record to show that the case property recovered from
accused Quentin Deacon was also destroyed by Customs
and no explanation has come on record regading the non
production of case property qua Quentin Deacon.
41. In general, only drugs are destroyed due to issues
like pilferage and storage etc., and the original concealing
materials i.e. wrappers, plastic pouches, cloth coverings,
trolley bags etc. are not destroyed, but, in the present case,
even the concealing material is stated to have been
destroyed without any evidence to show that the same has
been destroyed. Preservation of original wrappers comes
within the purview of the directions issued in terms of
Digitally
signed by
MANU
GOEL
MANU GOEL
KHARB Section 3.1 of the Standing Order No. 1 of 1989 which reads
Date:
KHARB 2026.04.20
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+0530 as follows:-
“3.1 After sampling, detailed inventory of such
packages/containers shall be prepared for being
enclosed to the panchnama, Original wrappers shall
also be preserved for evidentiary purposes”
Contravention of such guidelines as in Section 3.1 of SO
1/89 is an error of grave nature committed by the customs.
42. In the landmark judgment of Noor Aga vs State of
Punjab, it is observed by the Hon’ble Supreme Court as
follows:-
“Recently, this Court in State of Kerala & Ors. v.
Kurian Abraham (P) Ltd. & Anr. [(2008) 3 SCC 582],
following the earlier decision of this Court in Union of
India v. Azadi Bachao Andolan [(2004) 10 SCC 1] held
that statutory instructions are mandatory in nature.
Logical corollary of these discussions is that the
guidelines such as those present in the Standing Order
Page no. 36 of 52
SC no. 867/2021 Customs Vs Sydney John-Brain O’Gradycannot be blatantly flouted and substantial compliance
therewith must be insisted upon for so that sanctity of
physical evidence in such cases remains intact. Clearly,
there has been no substantial compliance of these
guidelines by the investigating authority which leads to
drawing of an adverse inference against them to the
effect that had such evidence been produced, the same
would have gone against the prosecution.”
Omission on the part of the prosecution to produce
evidence in this behalf must be linked with second
important piece of physical evidence that the bulk
quantity of heroin allegedly recovered indisputably has
also not been produced in court. Respondents
contended that the same had been destroyed.
However, on what authority it was done is not clear.
Law requires that such an authority must flow from an
order passed by the Magistrate. Such an order
whereupon reliance has been placed is Exhibit PJ; on
a bare perusal whereof, it is apparent that at no point of
time any prayer had been made for destruction of the
said goods or disposal thereof otherwise. What was
necessary was a certificate envisaged under Section
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signed by
110(1B) of the 1962 Act. An order was required to be
MANU MANU
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GOEL
passed under the aforementioned provision providing
GOEL Date:
KHARB 2026.04.20
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for authentication, inventory etc. The same does not
+0530
contain within its mandate any direction as regards
destruction. The only course of action the prosecution
should have resorted to is to obtain an order from the
competent court of Magistrate as envisaged under
Section 52A of the Act in terms whereof the officer
empowered under Section 53 upon preparation of an
inventory of narcotic drugs containing such details
relating to their description, quality, quantity, mode of
packing, marks, numbers or such other identifying
particulars of the narcotic drugs or psychotropic
substances or the packing in which they are packed,
country of origin and other particulars as he may
consider relevant to the identity of the narcotic drugs or
psychotropic substances in any proceedings
thereunder make an application for any or all of the
following purposes:
“(a) Certifying correctness of the inventory so
prepared; or
(b) Taking, in the presence of such Magistrate,
photographs substances and certifying such
photographs as true; orPage no. 37 of 52
SC no. 867/2021 Customs Vs Sydney John-Brain O’Grady
(c) Allowing to draw representative samples of such
drugs or substances, in the presence of such
Magistrate and certifying the correctness of any list of
samples so drawn.”
Sub-section (3) of Section 52A of the Act provides
that as and when such an application is made, the
Magistrate may, as soon as may be, allow the
application. The reason wherefor such a provision is
made would be evident from sub-section (4) of Section
52A which reads as under :
“52A. Disposal of seized narcotic drugs and
psychotropic substances.
(4) Notwithstanding anything contained in the Indian
Evidence Act, 1872 (1 of 1972) or the Code of Criminal
Procedure, 1973 (2 of 1974), every Court trying an
offence under this Act, shall treat the inventory, the
photographs of narcotic drugs or psychotropic
substances and any list of samples drawn under sub-
section (2) and certified by the Magistrate, as primary
evidence in respect of such offence.”
Digitally
43. In the present case, there is no order given by the
signed by
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KHARB
GOEL
GOEL Date:
KHARB 2026.04.20
16:39:38
+0530 Magistrate regarding destruction of the recovered drugs.
Although an application under Section 52 A NDPS Act Ex.
PW3/A1 was filed by Customs, pursuant to which the
proceedings Ex. PW3/A2 were conducted by Ld. Magistrate
for certification of inventory and drawal of samples but
apparently, no order for destruction of case property was
made by the Ld. Magistrate and Customs proceeded to
dispose the case property without the specific order of the
court.
44. Similar issue arose in the case in Jitendra v. State of
U.P. [(2004) 10 SCC 562], where it was laid down by the
Hon’ble Supreme Court of India as:
Page no. 38 of 52
SC no. 867/2021 Customs Vs Sydney John-Brain O’Grady“In the trial it was necessary for the prosecution to
establish by cogent evidence that the alleged
quantities of charas and ganja were seized from the
possession of the accused. The best evidence would
have been the seized materials which ought to have
been produced during the trial and marked as material
objects. There is no explanation for this failure to
produce them. Mere oral evidence as to their features
and production of panchanama does not discharge the
heavy burden which lies on the prosecution,
particularly where the offence is punishable with a
stringent sentence as under the NDPS, Act.”
45. In the case of Noor Aga (supra), it was further held
by the Hon’ble Supreme Court as follows :-
” ….. He states that in this regard, a sample as per the
provisions contained in sub clause (c) to clause (1B) is
also drawn for the purposes certification of correctness
so that at a later stage, the identity of the case property
is not disputed. May be, in my view, some
irregularities are committed in this case by the
Digitally
Customs Department while obtaining the order
MANU MANU
signed by
KHARB
GOEL Exhibit PJ) from the court for the reason that if the
GOEL Date: case property was to be destroyed, at least a notice
KHARB 2026.04.20
16:39:44
+0530 should have been given to the accused on the
application moved u/s 100 (1B) of the Customs Act or
at least a specific request in this regard should have
been made in the application but at the same time, the
aforesaid irregularity cannot be said to be a vital flaw
in the case of the prosecution for which the appellant
can derive any benefit especially under the
circumstances when confessional statements made by
the appellant are held to be made voluntary as
observed by me hereinabove… Similarly, non-
production of cardboard carton is also not fatal to the
prosecution.”
The question which arises for our
consideration is as to whether it is permissible to do
so. Evidently it is not. Firstly, because taking
recourse to the purported general practice adopted by
the Customs Department is not envisaged in regard to
prosecution under the Act. Secondly, no such general
practice has been spoken of by any witness. A
statement made at the Bar as regards existence of such
a purported general practice to say the least cannot be
a substitute of evidence whereupon only the court
could rely upon. Secondly, the High Court failed to
Page no. 39 of 52
SC no. 867/2021 Customs Vs Sydney John-Brain O’Grady
take into consideration that a certificate issued under
Section 110(1B) of the 1962 Act can be recorded as a
certificate of authentication and no more; authority for
disposal would require a clear direction of the Court in
terms of Section 52A of the Act. Thirdly, the High
Court failed and/or neglected to consider that physical
evidence being the property of the Court and being
central to the trial must be treated and disposed of in
strict compliance of the law.
The High Court proceeded on the basis that
non-production of physical evidence is not fatal to
the prosecution case but the fact remains that a
cumulative view with respect to the discrepancies in
physical evidence creates an overarching inference
which dents the credibility of the prosecution. Even
for the said purpose the retracted confession on the
part of the accused could not have been taken recourse
to.”
46. Apart from the non -production of the bulk of case
Digitally
property, Customs also erred in not producing the samples
signed by
MANU MANU GOEL
GOEL
KHARB
Date:
which were drawn before the Ld. Magistrate and were
KHARB 2026.04.20
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+0530
retained in the godown. There is no explanation regarding
non-production of samples by the Customs. In cases, where
the recovered drugs are destroyed by the investigating
agency, it is still necessary to produce the samples as
primary evidence as per the provision of Section 52-A
NDPS Act for the purpose of establishing the fact of
recovery of heroin as envisaged under Section 52A of the
Act. Reliance placed on Noor Aga (supra) :-
“Physical evidence of a case of this nature being the
property of the court should have been treated to be
sacrosanct. Non-production thereof would warrant
drawing of a negative inference within the meaning of
Section 114(g) of the Evidence Act. While there are
such a large number of discrepancies, if a cumulative
effect thereto is taken into consideration on the basis
whereof the permissive inference would be that
serious doubts are created with respect of thePage no. 40 of 52
SC no. 867/2021 Customs Vs Sydney John-Brain O’Gradyprosecution’s endeavour to prove the fact of
possession of contraband from the appellant.”
Physical Description of case property does not match with
the seized articles
47. It is argued by Ld. Defence Counsels that the
seizing IO has deposed regarding the proper description of
the mode of packing, number, marks and other identifying
particulars of the drugs recovered in this case.
48. It is the case of Customs that during the search
of the black trolley bag of accused No. 1, 08 black-colour
plastic coffee bags of “Black Gold” mark and 08 unmarked
white cloth packets, each wrapped in transparent plastic
Digitally
poly-bags and bearing handwritten marking “7.77” along
signed by
MANU MANU GOEL
KHARB
GOEL Date: with round inked stamps depicting an eagle engraving with
KHARB 2026.04.20
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+0530
Arabic writing, were recovered from inside the said coffee
bags and those packets contained an off-white
powdery/granular substance, total weighing approximately
8000 grams of Heroine. Similarly, on search of the beige
color trolley bag carried by accused No. 2, 05 boxes of
‘BOKOMO WEET-BIX Wholegrain Wheat Biscuits’ and
10 transparent plastic packets containing some off-white
powdery/granular substance, total weighing approximately
10,000 grams were recovered, each enclosed in a white
cloth packet bearing a blue circular stamp marked “BLUE
SAPHIRE 555 & 999,” and further wrapped in outer plastic
coverings, collectively concealed within the said biscuit
boxes, suspected to be narcotic substance.
Page no. 41 of 52
SC no. 867/2021 Customs Vs Sydney John-Brain O’Grady
49. Customs examined the seizing IO Amit Khatri
as PW3 and regarding the recovered substance and he
deposed as follows :-
“At the spot, the search of accused Deacon was
conducted before ACS Sh. Vijay Kumar and two
independent panch witnesses and 10 KG
(approximately) off white color powder/ granules
was recovered from the beige color trolley color
having tag number 0157392647.
At the spot, the search of accused Sydney was
conducted before ACS Sh. Vijay Kumar and two
independent panch witnesses and 8 KG
(approximately) off white color powder/ granules
was recovered from the black color trolley color
having tag number 0157393549″
50. From the testimony of PW3, it is evident that no
description is given by the witness with respect to the mode
Digitally
MANU
signed by
MANU GOEL
KHARB
of concealment of the drugs or the number of pouches in
GOEL Date:
KHARB 2026.04.20
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+0530
which the drugs were found. His entire testimony is silent
regarding the manner in which the accused persons had
concealed the drugs inside their respective trolley bags and
how they came to be discovered by PW3. The drugs were
admittedly concealed by the accused in different pouches
and biscuit boxes inside the trolley bags but from the
testimony of PW3 it appears that only a single pack
containing the entire quantity of 8 Kgs and 10 kgs
respectively was found concealed inside the trolley bags.
51. Furthermore, as per the Customs version and
documented in the Panchnama dated 27.0.2021 Ex. PW3/L,
the recovered substance was seized and sealed by the IO in
the following manner:-
Page no. 42 of 52
SC no. 867/2021 Customs Vs Sydney John-Brain O’Grady“The above recovered narcotic substance found to be
“Heroin” from Pax-1 was kept inside a poly bag
which was further kept in a transparent plastic
container and wrapped with white marking cloth,
stitched and sealed with IGI Airport Air Customs
New Delhi’s Brass Seal having mark rate “D”
(affixed 10 brass seals on box wrapped with cloth
marking), after affixing paper slip duly signed by
Customs Officer, the pax, Mr. Sydney John-Brain O’
Grady (D.O.B- 21.10.1976) and us, the panchas, was
seized under D.R. No. 24461 dated
27.06.2021………..
At the time of recovery of the said substance, the
recovered concealing material from Pax-1, i.e. 08
unmarked white cloth packets placed inside
transparent plastic poly-bags further placed inside
white cloth packets with hand written markings
“7.77” and round inked stamp marks with eagle
engraving and Arabic writing further placed inside
transparent poly-bags which were finally placed
inside 08 packets of black colored plastic coffee
bags of black gold mark were placed inside brown
Digitally
signed by
coloured cardboard carton container marked as P-1,
MANU MANU
KHARB
GOEL
were sealed with Customs pliers seal ‘PD IGI’ on one
GOEL Date:
KHARB 2026.04.20
16:39:30
side and ‘Ashoka Stambh’ on another side. After
+0530
affixing paper slip duly signed by Customs Officer,
in the presence of pax Mr. Sydney John-Brain O’
Grady (D.O.B- 21.10.1976) and us, the Panchas, the
same were seized under D.R. No.24462 dated
27.0.2021. The brown colour cardboard carton
container containing concealing materials as
detailed above was deposited in the Non-valuable
godown, as informed by the Customs Officer. The
relevant photos were also taken of the said recovery
proceedings.
The above recovered narcotic substance found to be
“Heroin” from Pax-2 was kept inside a poly bag
which was further kept in a transparent plastic
container and wrapped with white marking cloth,
stitched and sealed with IGI Airport Air Customs
New Delhi’s Brass Seal having mark “D” (affixed 10
brass seals on box wrapped with cloth marking),
after affixing paper slip duly signed by Customs
Officer, the pax, Mr. Quentin Deacon (D.O.B-
15.05.1979) and us, the panchas, was seized under
D.R. No. 24463 dated 27.06.2021…………
Page no. 43 of 52
SC no. 867/2021 Customs Vs Sydney John-Brain O’Grady
At the time of recovery of the said substance, the
recovered concealing material from Pax-2, i.e. 10
Transparent plastic packets each placed inside
white coloured cloth packet having circular stamp in
blue colour marked with ‘BLUE SAPHIRE 555 &
999 inside the circular stamp further placed inside
one or two (in few cases) outer transparent plastic
packet(s). Two such outer transparent plastic packets
were further places inside brown taped plastic
packet. 04 such brown taped plastic packet were
placed inside 04 paper boxes of BOKOMO WEET-
BIX wholegrai wheat Biscuits. 02 brown taped
plastic packets each containing one abou mentioned
outer transparent plastic packet placed inside 01
paper box BOKOMO WEET-BIX wholegrain wheat
Biscuits. All the concealing materials were placed
inside brown coloured cardboard carton contain
marked as P-2 were sealed with Customs pliers seal
‘PD IGI’ on one side and ‘Ashoka Stambh’ on another
side. After affixing paper slip duly sign by Customs
Officer, in the presence of pax Mr. Quentin Deacon
(D.O. 15.05.1979)) and us, the Panchas, the same
were seized under D No.24464 dated 27.06.2021.
Digitally
signed by
The brown coloured cardboard carton containing
MANU MANU
KHARB
GOEL
concealing materials as detailed above was
GOEL Date:
KHARB 2026.04.20
16:39:37
deposited in Non-valuable godown, as informed by
+0530
the Customs Officer. The relevant photos were also
taken of the said recovery proceedings.”
52. But in contrast, if we see the testimony of PW3, he
hasn’t deposed anything regarding the manner in which the
recovered substance and the concealing materials were
seized by him. Testimony of PW3 in this regard is
reproduced hereunder :-
“The recovered substance was kept in plastic poly
bag which was further kept in plastic container and
wrapped with white cloth stitched and sealed with
the seal of ‘IGI Airport Air Custom New Delhi’ brass
seal having mark D vide DR No. 24461 dated
27.06.2021. The said DR number is now Ex. PW3/M
bearing my signature at point A, of the ACS Vijay
Kumar at point B, of the accused at point C and of
the panch witnesses at points D and E…………
The recovered substance was kept in plastic poly bag
which was further kept in plastic container andPage no. 44 of 52
SC no. 867/2021 Customs Vs Sydney John-Brain O’Gradywrapped with white cloth stitched and sealed with
the seal of ‘IGI Airport Air Custom New Delhi’ brass
seal having mark D vide DR No. 24463 dated
27.06.2021. The said DR number is now Ex. PW3/P
bearing my signature at point A, of the ACS Vijay
Kumar at point B, of the accused at point C and of
the panch witnesses at points D and E.”
53. The witness has nowhere mentioned in his testimony
that he gave the marks P-1 and P-2 to the property when he
seized the same. His testimony is silent w.r.t the description,
quality, quantity, mode of packing, marks, numbers or such
other identifying particulars of the narcotic drugs or the
packing in which they are packed and other particulars
which could have been relevant to identify the narcotic
drugs during the trial.
Digitally
signed by
MANU MANU
KHARB
GOEL Date:
GOEL
54. Not just PW-3, but also the testimony of other
KHARB 2026.04.20
16:39:31
+0530 witnesses to the recovery i.e. both panch witnesses PW-7
and PW-8 as well as PW-2 ACS Vijay Kumar doesn’t
mention about the proper manner of recovery or the proper
manner of sealing of the recovered drugs or the concealing
materials. This assumes importance, particularly in wake
of the fact that the case property or the concealing material
including the trolley bags of the accused persons, were
never produced before the court during the entire trial which
itself creates a doubt regarding the presence of IO at the spot
and the sanctity of the seizure proceedings.
Issuance and deposit of brass seal not proved
55. It is argued by Ld. Counsels for the accused persons
that the entries regarding issuance and deposit of brass seal
Page no. 45 of 52
SC no. 867/2021 Customs Vs Sydney John-Brain O’Grady
are fabricated and no recovery was made from accused
persons.
56. As per the case of Customs, PW3 wrote a letter Ex.
PW3/U to Assistant/ Deputy Commissioner (Admin) for
issuance of Customs Brass seal and after sealing, the seal
was returned on the same day vide letter Ex. PW3/V. It is
observed that Customs has only filed a photocopy of seal
movement register on record as Mark P3 and the original
register has never been produced in the Court during trial.
Alos, customs has not just failed to divulge the name of the
said AO, but has also not examined the concerned
administrative officer, who had issued the seal, as a
prosecution witness. In such a situation, testimony of the
Digitally
signed by
MANU
GOEL
MANU GOEL
KHARB concerned administrative officer of Customs would have
Date:
KHARB 2026.04.20
16:39:39
+0530 been pivotal to explain the time when he had issued the seal
to PW3 and his testimony would have lent credibility to the
story regarding the issuance and deposit of Customs brass
seal but failure of the Customs to prove the proper seal
movement has created a doubt over the prosecution story,
the benefit of which necessarily goes to the accused.
Absence of Independent witnesses
57. Another argument raised by both the defence
counsels is that both the panch witnesses examined by
Customs are not independent witnesses but stock witness of
Customs.
Page no. 46 of 52
SC no. 867/2021 Customs Vs Sydney John-Brain O’Grady
58. In the present case, Customs had joined two
independent persons namely Anil Kumar Gautam and
Kishan Devganh as Panch witnesses during the recovery
and seizure proceedings and the proceedings were recorded
in Panchnama Ex. PW3/L. While panch witness Anil
Gautam was examined as PW-7, witness Kishan Devganh
was examined as PW-8.
59. At the outset, it is relevant to note that PW7 deposed
that he also appeared as a witness in around 15 cases of
Customs, which makes it necessary for the Court to
scrutinise his testimony with care, caution, and
circumspection.
MANU MANU
Digitally
signed by
GOEL
60. A perusal of testimony of PW7 Anil Kr. Gautam
KHARB
GOEL Date:
KHARB 2026.04.20
16:39:30
+0530
clearly indicates that he thoroughly knew the search
procedure adopoted by customs whenever a passenger is
intercepted at the airport. PW7 gave the details of the
number of bags carried by the accused persons and the
substance recovered from their bags. He also deposed about
the serving of notice on the accused u/section 102 Customs
and 50 NDPS Act and also knows the purport of notice of
Section 50 NDPS Act. He knows that a search memo and
panchnama was prepared during the proceedings whereas a
normal independent witness would not have known the fine
difference between these documents prepared w.r.t. the
search. He even deposed the exact DR number under which
the drugs were deposited in the Godown by Customs. A
panch witness who is joined during the search or recoveryPage no. 47 of 52
SC no. 867/2021 Customs Vs Sydney John-Brain O’Gradyis merely expected to depose about the broader details of
the proceedings and he is not expected to memorise the
minute and intricate details like the exact DR number or the
particular provisions of law under which notices were
issued to the accused, moreso, when he is employed as a
staff in the housekeeping department, unless he is preparing
for some competitive examinations. Even the senior custom
officer PW-2 who supervised the entire proceedings could
not tell either the color of trolleys bags, number of bags
carried by the accused persons or even the names of panch
witnesses. He rather deposed that drugs were packed inside
small cardboard boxes whereas drugs were in fact kept
inside a plastic container. The precision and accuracy with
Digitally
signed by
which PW-7 has deposed leaves no room of doubt that he ia
MANU MANU GOELstock witness of customs and is available at their call to
KHARB
GOEL Date:
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+0530
oblige them.
61. Customs also examined Kishan Devganh as PW-8
but he was declared hostile by Ld. SPP Sh. Singhal and his
testimonyis of no assistance to either side rather it weakens
the already weak case of Customs. It was the testimony of
recovery witnesses only which could have sustained the
conviction of the accused but in the present case, the
testimony of PW7 and PW8 has rather exonerated the
accused from all the allegations levelled against him in the
present case.
Absence of Videography and Photography of the proceedings
Page no. 48 of 52
SC no. 867/2021 Customs Vs Sydney John-Brain O’Grady
62. Ld. Defence counsels also argued that the recovery
and seizure proceedings were neither videographed nor
photographed, which raises a doubt as to whether the
proceedings took place or not in the manner as pointed out
by the prosecution.
63. It is a matter of record that both the accused were
apprehended at the airport, however, the custom officials
made no endeavour to arrange for videography of the
recovery and seizure of the contraband.
64. The Hon’ble Apex Court in the case of Shafhi Mohd.
Vs Stae of H.P. : (2018) 5 SCC 311 has expressed the need
for videography and photography during the investigation.
Digitally
signed by
MANU
GOEL
MANU GOEL
KHARB Relevant para from the said judgment is extracted below:
Date:
KHARB 2026.04.20
16:39:35
+0530“10. Thus, we are of the considered view that
notwithstanding the fact that as of now investigating
agencies in India are not fully equipped and prepared
for the use of videography, the time is ripe that steps
are taken to introduce videography in investigation,
particularly for crime scene as desirable and
acceptable best practice as suggested by the
Committee of the MHA to strengthen the Rule of Law.
We approve the Centrally Driven Plan of Action
prepared by the Committee and the timeline as
mentioned above. Let the consequential steps for
implementation thereof be taken at the earliest.”
65. In the case of Ram Prakash Vs State, 2014 SCC
OnLine Del 6936, the court acquitted the accused person on
the ground of lack of videography and observed that the
case of the prosecution is not proved beyond reasonable
Page no. 49 of 52
SC no. 867/2021 Customs Vs Sydney John-Brain O’Grady
doubt and granted benefit of doubt to the accused. Relevant
para is extracted below:-
“22. ………. The Court can only observe that with so
many technological advances where satellite imagery to
the smallest degree of precision of any location in the
world is available, the Delhi police can no longer be
excused for not improving its methods of gathering and
presenting evidence. Considering that the raid was
going to take place in a busy place like the Old Delhi
Railway Station parking lot, and in broad daylight, it
should have been possible for the police to arrange for
a videograph of the place or perhaps of the raid itself, if
not photographs.
23. Also clearly there are CCTV cameras all over the
place outside the Old Delhi Railway Station including
its parking lot. There was no effort made to collect the
CCTV footage of the relevant time. Not only would it
have showed how the Appellant reached the spot with
the three bags but also it could have been placed on
record to show the raid placed on record to shown the
raid as it took place.”
Digitally
signed by
MANU MANU
KHARB
GOEL
GOEL Date:
KHARB 2026.04.20
16:39:26 66. It is further held by the Hon’ble Delhi High Court in
+0530the Bail application of Bantu Vs State of NCT of Delhi that
although there is no mandatory requirement to conduct
videography or photography of the recovery proceedings
which were conducted in 2016, the question before the court
is whether the deposition of recovery witnesses, who have
corroborated each other in material particulars, can be
overlooked or disbelieved, merely because they did not take
photographs or video at the time of search and seizure. It
was observed by the Hon’ble High Court as under :-
” 72. Almost all individuals carry a mobile phone
compatible for videography these days. From the above
cases, it is clear that it is open for the prosecution to
furnish reasons to explain and justify the absence of
videography and photography in a case. Mere absence
of videography and photography of the recovery does
not nullify the case of the prosecution, however, thePage no. 50 of 52
SC no. 867/2021 Customs Vs Sydney John-Brain O’Gradysame can in some circumstances be sufficient to create a
doubt as to the veracity of the prosecution’s case.
73. The Hon’ble Apex Court, in a catena of judgments
has held that the more severe the punishment, greater
has to be the care taken to ensure that all the safeguards
provided in the statute are scrupulously followed.
74. While a little play in the joint has to be afforded to
investigating agencies to enable them to discharge their
duties, the authorities also have to be held accountable
to prevent abuse of law. In cases where the factum of
recovery of the contraband is supported only by official
witnesses, lack of videography and photography,
especially in the absence of independent witnesses, casts
a doubt on the recovery of the contraband, unless the
same is justified by cogent reasons.
75. As already noted above, in the case of absence of
independent witnesses, it is to be seen whether any
prejudice is caused to the accused person and
testimonies of the police officials can be believed even
without corroboration if the same is found to be credible.
Digitally
signed by
This Court is of the opinion that the same rationale
MANU MANU
KHARB
GOEL
would extend to cases where there is no photography
GOEL Date:
KHARB 2026.04.20
16:39:28
and videography as well, specially when the same has
+0530
been deliberated and commented upon by Courts on
numerous occasions.”
67. In NDPS cases, the recovery of the contraband is the
fulcrum of the matter. The said recovery becomes a crucial
piece of evidence, as it directly links the accused with the
crime. Further, the quantity of the contraband is another
crucial factor as it plays a significant role in determining the
severity of the sentence as the legislation provides specific
punishments based on the quantity of the contraband.
Therefore, the procedure as prescribed under the NDPS
Act must be adhered to when such recovery of the
contraband is made. Though lack of photography and
videography by itself does not vitiate the trial but the same
Page no. 51 of 52
SC no. 867/2021 Customs Vs Sydney John-Brain O’Grady
along with the absence of independent witnesses and other
statutory non-compliances casts a shadow of doubt on the
prosecution case unless the same is proved by cogent
material.
DECISION
68. In the light of the above said discussion and
appreciation of evidence, court is of the opinion that
prosecution has miserably failed to prove its case against
the accused beyond reasonable doubts, hence, the accused
prsons Sydney John Brain O’Grady and Quentin Deacon
are hereby acquitted from the charges framed against
them .
Digitally
signed by
MANU MANU GOEL
69. Case property is confiscated to the State and be
KHARB
GOEL Date:
KHARB 2026.04.20
16:39:33
+0530
disposed of as per rules. Customs is directed to handover
the jamatalasi and passport to the accused persons in the
jail. Jail Superintendent is directed to send the accused
persons to the Detention Centre as per rules.
70. Copy of this judgment be given to accused free of
cost.
Announced in the open Court today
i.e. 20.04.2026 (Manu Goel Kharb)
Special Judge (NDPS)-02
Dwarka Courts, New Delhi
Page no. 52 of 52
