Delhi District Court
State vs Iqbal Hussain on 18 February, 2026
DLSH010050692016 Page 1 of 80 SC No. 969/2016 STATE Vs. IQBAL HUSSAIN FIR No. 82/2016 (Crime Branch) U/s 21 NDPS Act IN THE COURT OF SPECIAL JUDGE (NDPS), SHAHDARA, KARKARDOOMA COURTS, DELHI SC No. 969/2016 STATE Vs. IQBAL HUSSAIN FIR No. 82/2016 (Crime Branch) U/s 21 NDPS Act In the matter of :- State ...(through Ld. Addl. PP) Vs. Iqbal Hussain, S/o Sh. Sharafat Hussain, R/o Village & Post Raiya Nagla, P.S. Meerganj, Tehsil Meerganj, Bareilly, U.P. ....accused (Sh. Sanjiv Rathi, Advocate for accused) Date of institution : 23.07.2016 Date when Judgment reserved : 10.02.2026 Date of Judgment : 18.02.2026 Final Decision : Convicted DLSH010050692016 Page 2 of 80 SC No. 969/2016 STATE Vs. IQBAL HUSSAIN FIR No. 82/2016 (Crime Branch) U/s 21 NDPS Act JUDGMENT
CASE OF THE PROSECUTION
1. Brief facts of the present case as per charge-sheet are that on
26.05.2016 on receipt of secret information that accused supplies heroin in
Delhi by procuring it from Bareilly, U.P., information was given to ACP and on
the pointing out of secret informer, accused was apprehended at about 5:30 pm
at Service Road, Opposite Anand Vihar Railway Station, Delhi. He was
informed of his rights regarding his search in the presence of Gazetted Officer
or Magistrate and notice U/s 50 NDPS Act was given to which he refused. On
conducting his search, one black colour polythene was recovered from right side
pocket of his wearing jeans which was containing one transparent polythene
containing brown colour (matiyala colour) powder and on weighing and
checking the same, it was found to contain 200 grams of heroin. On the basis of
which, the present FIR was registered U/s 21 NDPS Act. The contraband was
seized and accused was arrested. The sampling of the contraband was done and
sent to FSL. FSL report dated 29.07.2016 has been received wherein it is
mentioned that the samples were containing Diacetylmorphine (31.2%), 6-
monoacetylmorphine, Caffeine and Acetaminophen.
INVESTIGATION & OTHER PROCEEDINGS
2. Upon completion of investigation, on 23.07.2016 charge-sheet was
filed against accused Iqbal Hussain U/s 21 NDPS Act.
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(Crime Branch)
U/s 21 NDPS Act
CHARGE
3. Vide order on charge dated 01.10.2016, charge U/s 21 NDPS Act
was framed against accused Iqbal Hussain.
PROSECUTION EVIDENCE
4. To substantiate the aforementioned charge, the prosecution
presented 13 witnesses. The details of these witnesses, alongwith the documents
they presented during their testimonies, are listed below in tabular form:
PW number Brief role of Documents Description
and name of witness exhibited
witness
PW-1 HC Member of Ex. PW-1/A Arrest memo of accused
Birbal Singh raiding party Ex. PW-1/B Personal search memo of accused
and one of the
recovery Ex. PW-1/C Disclosure statement of accused
witness. Ex. PW-1/ Samples taken out from the recovered
article-1 & Ex. heroin/ contraband.
PW-1/ article-
2
Ex. PW-1/ Heroin/ contraband recovered from the
article-3 possession of accused
Ex. PW-1/D Original notice U/s 50 NDPS Act addressed
to accused
PW-2 Ct. Deposited case
Rohit property
alongwith FSL
Form to FSL,
Rohini.
PW-3 ASI Reader to ACP Ex. PW-3/A DD No. 28
Dinesh Ex. PW-3/B Entries at serial no. 1267 regarding DD
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U/s 21 NDPS Act
Kumar Ex. PW-3/C & Report U/s 57 NDPS Act regarding seizure
Ex. PW-3/D of heroin sent by SI Rajni Kant and
corresponding entry regarding the same in
diary at serial no. 1268.
Ex. PW-3/E & Report U/s 57 NDPS Act regarding arrest of
Ex. PW-3/F accused sent by SI Sanjay Neolia and
corresponding entry regarding the same in
diary at serial no. 1269.
PW-4 Deposed qua
Retired ACP receipt of DD
Ranbir No. 28 as well
Singh as receipt of two
special reports
U/s 57 NDPS
Act.
PW-5 ASI Duty Officer Ex. PW-5/A Print out of copy of FIR
Jai Pal Ex. PW-5/B Endorsement
Singh
Ex. PW-5/C & Entries in DD Register vide DD No. 18 and
Ex. PW-5/D DD No. 21
Ex. PW-5/E Certificate U/s 65-B of Indian Evidence Act
PW-6 ASI MHC(M) Ex. PW-6/A Entry qua issuance of electronic weighing
Mahesh machine to SI Rajni Kant
Chand
PW-7 HC Member of Ex. PW-7/A Carbon copy of notice U/s 50 NDPS Act
Vikas raiding party Ex. PW-7/B Seizure memo qua sealed pullandas
Kumar and one of the alongwith FSL Form
recovery
witness.
PW-8 ASI MHC(M) Ex. PW-8/A Entry no. 2397 in register no.19 regarding
Jag Narain deposit of pullandas, FSL Form alongwith
copy of seizure memo
Ex. PW-8/B Entry no. 2398 in register no.19 regarding
handing over to him the articles recovered
from personal search of accused alongwith
copy of personal search memo
Ex. PW-8/C RC Number 195/21
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U/s 21 NDPS Act
Ex. PW-8/D Acknowledgment of case acceptance
PW-9 2nd IO who Ex. PW-9/A DD No. 2
Inspector arrested Ex. PW-9/B Site plan
Sanjay accused,
Neolia recovered Ex. PW-9/C DD No. 4
original notice Ex. PW-9/D DD No. 5
U/s 50 NDPS
Act in personal Ex. PW-9/E DD No. 6
search of
accused,
prepared site
plan and
prepared report
U/s 57 NDPS
Act etc.
PW-10 Secret informer Ex. PW-10/A Carbon copy of DD No. 28
Inspector produced before Ex. PW-10/B First report U/s 57 NDPS Act
Akash this witness by
Rawat IO SI Rajni Ex. PW-10/C Second report U/s 57 NDPS Act
Kant and he
informed ACP
regarding secret
information)
PW-11 1st IO, member Ex. PW-11/A DD No. 29
Inspector of raiding party Ex. PW-11/B Tehrir
Rajni Kant who
apprehended the
accused, served
notice U/s 50
NDPS Act on
the accused,
recovered
contraband,
drawn sample,
sealed and
seized the case
property,
prepared tehrir
and prepared
special report
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U/s 21 NDPS Act
U/s 57 NDPS
Act etc.
PW-12 Sh. Expert witness Ex. PW-12/A His detailed report dated 29.07.2016
Santosh from FSL
Tripathi,
Assistant
Director
(Chemistry)
PW-13 SHO, P.S. Ex. PW-13/A Entry by MHC(M) qua case property and
Inspector Crime Branch documents in register no. 19
Sunil Kumar who conducted Ex. PW-13/B DD No. 20 regarding information about
proceedings U/s deposition of case property, samples and
55 NDPS Act. documents in this case U/s 55 NDPS Act
After examining the depositions of the witnesses mentioned in the
table above, it is found that they gave evidence about the undermentioned facts
for the prosecution:-
5. PW-1 HC Birbal Singh deposed that on 26.05.2016, he was posted
at Narcotics Cell, Crime Branch, Kotwali, Daryaganj, Delhi as Constable. On
that day, he was present in the office of the Narcotics Cell. SI Rajnikant called
this witness and HC Vikas to his office and at about 3:55 pm, briefed them the
secret information that one person in the name of Iqbal Hussain, who is the
resident of Bareilly, U.P. and used to supply heroin in Delhi after bringing the
same from Bareilly, U.P. and on 26.05.2016, he would come in between 5:00
pm-6:00 pm, alongwith huge quantity of heroin at Service Road, opposite
Anand Vihar Railway Station to supply the heroin to someone. IO prepared a
raiding team consisting this witness, HC Vikas and IO himself. Secret informer
was also alongwith them. IO took IO bag, field testing kit and electronic
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U/s 21 NDPS Actweighing machine and at about 4:00 pm, they departed in a Swift car of white
colour bearing no. DL-1CN-4446 vide DD No. 29 made by the IO at about 4:00
pm. On the way, they crossed Shanti Van Red Light and thereafter Geeta
Colony, Yamuna Bridge and they took right turn and via Geeta Colony, Pushta
Road in front of DC East Office and via under flyover and they took U-turn and
then at about 4:45 pm, they reached at Anand Vihar entry gate. On the way, SI
Rajnikant, stopped the above-said vehicle near Red Light Shanti Van and asked
five passersby to join the raiding team, but they refused the same stating their
reasonable causes and left from there without disclosing their names and
addresses. Thereafter, the said vehicle was stopped near DC Office/ East and SI
Rajnikant requested five passersby to join the raiding team, but they refused the
same stating their reasonable causes and left from their without disclosing their
names and addresses. Thereafter, the said vehicle was stopped in front of entry
gate ISBT, Anand Vihar and SI Rajnikant requested five passersby to join the
raiding party after briefing the secret information to them, but they refused the
same stating their reasonable causes and left from there without disclosing their
names and addresses. The above-said private car was parked near the flyover
bridge which comes from the side of Seemapuri and before the Anand Vihar
Railway Station, Delhi. SI Rajnikant briefed them again at about 5:00 pm and
they took their position on the road which leads to Ghazipur around 50 meters
away from the said private car. At about 5:20 pm, one person was seen coming
on foot towards the side of ISBT Anand Vihar Footover Bridge and the said
person was identified and pointed out by the secret informer as Iqbal Hussain
from about a distance of 30 meter and after identifying and pointing out the said
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U/s 21 NDPS Actperson as Iqbal Hussain, secret informer left from there. Accused Iqbal Hussain
came on the road which leads to Ghazipur, opposite Anand Vihar Railway
Station and accused Iqbal Hussain stood there and started looking here and there
and he was waiting for someone. After waiting for about 10 minutes, he
returned towards footover bridge and at that time, accused was apprehended by
SI Rajnikant with the help of raiding team. At that time some people gathered
there and SI Rajnikant requested them to join the proceedings, but they refused
the same stating their reasonable causes and left from there without disclosing
their names and addresses. HC Vikas was asked to bring their private vehicle
there and he brought the same there. On inquiry, accused disclosed his name as
Iqbal Hussain, S/o Sharafat Hussain, aged about 21 years. IO gave the
introduction of the raiding team consisting IO and accused was also informed
about the above-said secret information and IO asked accused that he was
having information that accused had come there from Bareilly with heroin and
he brought the said heroin from Bareilly to supply the same in Delhi and he had
come there to supply the heroin to someone and there was likelihood that heroin
may be recovered from him therefore search of the accused was to be
conducted. It was informed to the accused that it was his statutory/ legal right, if
he wishes then his search can be conducted in the presence of a Gazetted
Officer or Magistrate and for this purpose, nearest Gazetted Officer or
Magistrate can be called there and accused was also informed that it was his
statutory/ legal right that he can take the search of the above-said raiding team
or police vehicle. The meaning of Gazetted Officer or Magistrate was also
explained to accused. In this regard, a notice U/s 50 NDPS Act was written in
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U/s 21 NDPS ActHindi and the said notice was read over and explained to the accused.
It is stated by him that accused was interrogated after apprehension,
who told his name as Iqbal Hussain, S/o Sharafat Hussain, Village & Post Raiya
Nagla, Bareilly, U.P. Some 5-6 passersby had assembled. SI Rajnikant asked
them to join the raiding party after disclosing the secret information, but none
agreed and went away without disclosing their names and addresses and
showing their genuine concern. SI Rajnikant directed HC Vikas to bring the car
at the spot. SI Rajnikant stated to the accused that they are having information
that accused is in the business of bringing heroin from Bareilly, U.P. and
supplying them in the area of Delhi and today (date of incident) also he had
come alongwith consignment of heroin to supply to somebody. SI Rajnikant
also apprised the accused that he had to be searched for the said purpose and he
had legal right to give his search in presence of Gazetted Officer or Magistrate
and for the same purpose he can be produced before Magistrate or Gazetted
Officer, or Magistrate or Gazetted Officer can be called at the spot. The accused
was further apprised that he had legal right to search the raiding party and the
private car in which the raiding party had come. Meaning of Magistrate or
Gazetted Officer was explained to the accused. A notice U/s 50 NDPS Act was
prepared by SI Rajnikant in duplicate by carbon process and the original was
served on the accused. Accused refused to take the search of raiding party or the
car and the accused also refused to be searched in presence of Magistrate or
Gazetted Officer. Accused also denied to call Magistrate or Gazetted Officer at
the spot. As the accused was illiterate, the refusal was written by SI Rajnikant as
dictated by the accused in verbatim and the accused consented for his search.
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U/s 21 NDPS Act
On seeing, the carbon copy of the notice U/s 50 NDPS Act already
Ex. PW-7/A, this witness identifies his signatures at Points ‘C’ and ‘D’. The
accused was searched by SI Rajnikant and one black colour polythene ( vajani)
was recovered from the jeans pant right side front pocket of the accused.
It is stated by him that the colour of the polythene was black. The
polythene was opened and checked and it was found containing one transparent
polythene having some matiyala powder. SI Rajnikant took out some matiyala
powder from the transparent polythene and checked the same on the field
testing kit and it was found positive for heroin. The recovered heroin was made
(weighed) alongwith the transparent polythene on the electronic weighing
machine and it was found 200 gms. Two samples of 5 gms each were taken out
from the recovered heroin by SI Rajnikant and the same were kept in two
transparent polythene bags and mouth of both the polythene were tied with the
help of rubber band. Both the polythenes containing the sample were converted
into two separate pullandas with the help of cloth. They were marked as A and
B. Remaining heroin i.e. 190 gms were kept in the same transparent polythene
which the accused had brought. The mouth of the polythene bags was tied with
the help of rubber band and the polythene was kept in black colour polythene
and converted it into a pullanda with the help of white cloth. The pullanda was
marked as C. All the three pullandas were sealed by SI Rajnikant with the seal
impression 5A PS/NB DELHI. FSL form was also filled up at the spot by SI
Rajnikant, the seal impression of 5A PS/NB DELHI was also put on FSL form.
Seal after use was handed over to this witness. The sealed pullandas alongwith
the FSL form were taken into police possession by seizure memo already Ex.
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PW-7/B bearing signature of this witness at Point-B. A tehrir was prepared by
SI Rajnikant. The tehrir was handed over to HC Vikas alongwith sealed case
property, FSL form and carbon copy of seizure memo with the direction to hand
over the tehrir to the DO, P.S. Crime Branch and hand over the three sealed
pullandas alongwith carbon copy of seizure memo and FSL form to the SHO
P.S. Crime Branch.
It is stated by him that at about 8:45pm, HC Vikas left the spot for
P.S. Crime Branch, Malviya Nagar in the Swift car alongwith the case property
and other documents.
It is stated by him that at about 12:45 am i.e. 27.05.2016 SI Sanjay
Neolia came at the spot in the Swift car bearing no. DL-1CN-4446. SI Rajnikant
handed over the accused, seizure memo and carbon copy of notice U/s 50 NDPS
Act to the second IO SI Sanjay Neolia. Second IO prepared site plan at the
instance of first IO. Second IO recorded statement of this witness between 1:05
am to 2:30 am. The accused was interrogated by the second IO and at 2:50 am
the accused Iqbal Hussain was arrested vide arrest memo Ex. PW-1/A bearing
signature of this witness at Point-A and his personal search was conducted vide
memo Ex. PW-1/B bearing signature of this witness at Point-A. One folded
notice U/s 50 NDPS Act in original, one black colour wallet containing Rs. 460,
one Aadhaar Card in the name of Iqbal Hussain, one debit card of Bank of
Baroda, U.P. Gramin Bank and some visiting cards. The disclosure statement of
accused Iqbal Hussain was also recorded by the second IO which is Ex. PW-1/C
bearing signature of this witness at Point-A. At 3:15 am they left the spot and at
3:45 am they reached their our office i.e. Narcotic Cell, Old Kotwali. The
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accused was produced before Insp. Akash Rawat at the office. The statement of
Aakash Rawat was recorded by the second IO between 4:00 am to 4:15 am. SI
Sanjay Neolia left for P.S. Crime Branch after handing over the accused to this
witness and HC Vikas. SI Sanjay Neolia came back at the office at 6:30 am.
The medical examination of the accused was conducted and he was produced in
the Court No. 53 at Karkardooma. This witness correctly identified the accused
in the Court.
MHC(M) HC Sunil, P.S. Crime Branch produced one sealed
envelope with the seal of FSL. The envelope is marked A, FSL-2016/C-4054,
FIR No. 82/16 dated 26.05.2011, U/s 21 NDPS Act, P.S. Crime Branch. The
seal is broken and the envelope is opened. From inside the envelope, one torned
cloth pullanda bearing the seals of PS/NB 5A DELHI and SK is taken out. One
transparent polythene containing some solid blackish material is also taken out
from inside the envelope. The mouth of transparent polythene is tied with the
help of a rubber band. The particulars of the present case and ‘A’ are mentioned
on the cloth pullanda. The cloth pullanda also bears the signature of witnesses;
SHO, P.S. Crime Branch and SI Rajnikant.
On seeing the cloth, this witness identified his signatures at Point-
A. Witness stated that the signature of accused is at Point-B on the cloth. The
transparent polythene alongwith blackish material is shown to the witness and
witness identified the same as the sample which was taken out from recovered
heroin and which was marked as A. The polythene alongwith blackish material
and the rubber band is Ex. PW-1/article-1.
MHC(M) produced one sealed cloth pullanda with the seals of
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PS/NB 5A DELHI and SK. The particulars of the present case and ‘B’ are
mentioned on the cloth pullanda. The cloth pullanda also bears the signatures of
witnesses; SHO, P.S. Crime Branch and SI Rajnikant.
On seeing the sealed cloth this witness identified his signatures at
Point-A. He stated that the signature of accused is at Point-B on the sealed
pullanda. The seal is broken and the cloth pullanda is opened and one
transparent polythene bag containing blackish material is taken out and shown
to the witness and witness identified the same as the sample which was taken
out from recovered heroin and which was marked as B. The polythene
alongwith blackish material and the rubber band is Ex. PW-1/ article-2.
MHC(M) produced one sealed cloth pullanda with the seals of
PS/NB 5A DELHI and SK. The particulars of the present case and ‘C’ are
mentioned on the cloth pullanda. The cloth pullanda also bears the signatures of
witnesses; SHO, P.S. Crime Branch and SI Rajnikant.
On seeing the sealed cloth pullanda, this witness identified his
signature at Point-A. He stated that the signature of accused is at point B on the
sealed pullanda. The seal is broken and the cloth pullanda is opened and one
black colour polythene bag tied from the top is taken out. The black colour
polythene is opened and one transparent polythene containing brownish
material is taken out. The mouth of the transparent polythene is tied with the
help of a rubber band. The transparent polythene alongwith brownish material is
shown to the witness and witness identified the same as the heroin recovered
from the possession of the accused. The polythene alongwith brownish material
and the rubber band is Ex. PW-1/article-3.
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U/s 21 NDPS Act
One notice in original U/s 50 NDPS Act addressed to accused Iqbal
Hassan is produced by the MHC(M). On seeing the notice, this witness stated
that the notice bears his signature at Point-A and it was the same notice which
was served on the accused by the IO/SI Rajnikant and later on which was
recovered from the personal search of the accused. The notice has fold marks.
The notice is Ex. PW-1/D. The notice is taken on record.
During his cross-examination on behalf of accused, it is stated by
him that the arrest memo and personal search memo were prepared between
2:50 am to 3:15 am on 27.05.2016 in his presence. It is stated by him that he
had seen notice U/s 50 NDPS Act at the spot i.e. Opposite Railway Station,
Anand Vihar on the road going towards Ghazipur. It is stated by him that IO
started preparing notice U/s 50 NDPS Act 15 minutes after apprehending the
accused and at that time he had seen the notice. It is stated by him that he had
seen the notice before 6:00 pm. It is stated by him that on being asked accused
had stated that he can only sign in Hindi and he is illiterate. He failed to
remember the exact place where the field testing kit was used, though it is stated
by him that the same was used at the spot by the IO to conduct the test. It is
stated by him that A1 and A2 chemicals were used for testing the contraband
recovered from accused. It is stated by him that after test, the colour of the
sample became purple (baingani). It is stated by him that no rough notes were
prepared by the IO regarding testing conducted by him. It is admitted by him
that no GO (Gazetted Officer) or Magistrate accompanied them in the raid. It is
stated by him that no GO or Magistrate were intimated by the IO before the
search of the accused as the accused had refused for his search in presence of
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GO or Magistrate. He could not tell the maximum or minimum capacity or
make of weighing machine. He failed to remember when he had returned the
seal to the IO. It is stated by him that no handing over memo was prepared. It is
stated by him that they left the spot at 3:15 am on 27.05.2016. It is stated by him
that IO had not called any person from residential flats situated in U.P. or from
the persons present at commercial shops to join the raiding party. It is stated by
him that IO had not done any proceedings regarding the passersby who did not
join proceedings. It is stated by him that the contraband was mixed by the IO
and then samples were taken.
6. PW-2 Ct. Rohit deposed that on 30.05.2016 he was posted at
Narcotics Cell, Crime Branch, New Delhi. On that day, on the direction of SI
Sanjay Neolia, he went to P.S. Crime Branch, Maalkhana. This witness had
made DD Entry No. 2 at 6:30 am regarding the departure from Narcotics Cell.
He met with MHC(M). He collected one sealed pullanda Mark-A alongwith
FSL form alongwith some photocopied document pertaining to the present case.
Both the pullanda and FSL form had the impression of 5A PS NB DELHI &
SK. He collected the same and deposited the same at FSL, Rohini vide RC No.
195/2021 dated 30.05.2016. Till the pullandas were in his possession, the seal
remained intact and no tampering was done. After depositing the same, he
handed over the acknowledgment no. 2016/CHE-4054 to MHC(M) alongwith
copy of RC. IO recorded statement of this witness between 2:30 to 3:00 pm.
7. PW-3 ASI Dinesh Kumar deposed that on 26.05.2016, he was
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posted as Reader to ACP (Narcotics) Sh. Ranvir Singh. On that day, he had
received one DD No. 28 dated 26.05.2016, Narcotics Cell, Crime Branch
through daak regarding secret information U/s 42 NDPS Act sent by SI Rajni
Kant duly forwarded by Inspector Narcotics Cell. This witness produced the
said DD in front of ACP (Narcotics) Sh. Ranvir Singh. The same was seen by
ACP (Narcotics) Sh. Ranvir Singh and he had affixed his signature at Point-A
on DD No. 28 which is Ex. PW-3/A. This witness made corresponding entry
regarding said DD in diary of correspondence. He has brought the same. The
entry is at Sl. No. 1267. The entries are in his handwriting which is Ex. PW-3/B
(OSR). On 27.05.2016 special report U/s 57 NDPS Act regarding seizure of 200
gms of heroin from the possession of accused was received by this witness
through daak sent by SI Rajni Kant duly forwarded by Inspector Narcotics Cell.
This witness produced the said report in front of ACP (Narcotics) Sh. Ranvir
Singh. The same was seen by ACP (Narcotics) Sh. Ranvir Singh and he had
affixed his signature at Point-A on report (running into 02 pages) which is Ex.
PW-3/C. This witness made corresponding entry regarding the said report in
diary of correspondence. He has brought the same. The entry is at Sl. No. 1268.
The entries are in handwriting of this witness which is Ex. PW-3/D (OSR). On
the same day, this witness had received special report U/s 57 NDPS Act
regarding arrest of accused Iqbal Hussain, was received by this witness through
daak sent by SI Sanjay Neuolia duly forwarded by Inspector Narcotics Cell.
This witness produced the said report in front of ACP (Narcotics) Sh. Ranvir
Singh. The same was seen by ACP (Narcotics) Sh. Ranvir Singh and he had
affixed his signature at Point-A on report which is Ex. PW-3/E. This witness
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made corresponding entry regarding the said report in diary of correspondence.
He has brought the same. The entry is at Sl. No. 1269. The entries are in my
handwriting which is Ex. PW-3/F (OSR).
During his cross-examination on behalf of accused, he could not
tell the exact time when he had received DD No. 28, though it is stated by him
that it was between afternoon and evening. It is voluntarily stated by him that as
the correspondence register does not have column of time. It is stated by him
that he had produced the DD No. 28 in the evening hours between 5:00-6:00 pm
before ACP. It is stated by him that he had received both the special reports in
the morning on 27.05.2016 between 10:00 am and 11:00 am. It is admitted by
him that entries in diary of correspondence are on the same page, however “on
27.5.2016” is mentioned after entry no. 1267. It is admitted by him that no date
is mentioned on the top of the diary i.e. above entry no. 1267. It is voluntarily
stated by him that the entry no. 1267 is in continuation of 26.05.2016 and the
same is reflected on the previous page of diary.
8. PW-4 retired ACP Ranbir Singh deposed that on 26.05.2016, he
was posted as ACP (Narcotics), Kotwali. On that day, he had received an
information telephonically from Inspector Aakash Rawat at about 3:40 pm that
one person namely Iqbal Hussain who deals in supply of contraband will come
with smack for supply in his possession from Bareilly, U.P. and he would come
at opposite Anand Vihar Railway Station between 5:00 pm to 6:00 pm and if
raided, he could be apprehended. After receiving the information, this witness
directed Inspector Aakash Rawat to conduct raid immediately, as per law. Later
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(Crime Branch)
U/s 21 NDPS Act
on, Reader Dinesh produced DD No. 28 dated 26.05.2016, Narcotics Cell,
Crime Branch which was sent by SI Rajni Kant duly forwarded by Inspector
Aakash Rawat, Narcotics Cell. This witness had gone through the report and
had put his signature at Point-A on the said report which is already Ex. PW-3/A.
On next day i.e. 27.05.2016 Reader Dinesh produced two special reports U/s 57
NDPS Act. First report was regarding seizure of 200 gms of heroin from
accused Iqbal Hussain and the second special report was arrest of accused Iqbal
Hussain. This witness has gone through the reports and after his satisfaction, he
signed the same. He had put his signatures on both reports which are already
Ex. PW-3/C and Ex. PW-3/D.
During leading question put by Ld. Addl. PP for the State,
document Ex. PW-3/A was shown to the witness and a specific question has
been put to him that whether the information as mentioned in Ex. PW-3/A was
of smack or heroin, to which he replied that it was heroin as mentioned in Ex.
PW-3/A.
During his cross-examination on behalf of accused, it is stated by
him that the first information was received telephonically on mobile phone
issued by the government. It is stated by him that he had not mentioned in the
DD No. 28 regarding prior instructions for conducting the raid. It is stated by
him that though he had seen the correspondence register where all the entries
were made.
9. PW-5 ASI Jai Pal Singh deposed that on 26.05.2016, he was posted
at P.S. Crime Branch, Malviya Nagar as D.O. and his duty hours were from
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8:00 am to 8:00 pm. At about 9:45 pm HC Vikas came alongwith rukka which
was sent by SI Rajni Kant Sharma. On the basis of the same, the present FIR
was registered. This witness had also made endorsement on the rukka. After
registration of the case, the copy of FIR and rukka was handed over to HC
Vikas to handed it over to SI Sanjay Neolia as the investigation of the case was
marked to him.
It is stated by him that this FIR was recorded/ typed in computer
under his instructions and supervision and there was no break down in the
computer, while recording/ typing the FIR and taking out printout copy of the
same. The printout copy of FIR is Ex. PW-5/A which is placed on record.
It is stated by him that after receiving rukka and at the time of
registration of FIR, he had made relevant entry in DD register vide DD Nos. 18
and 21. He had also made endorsement which is Ex. PW-5/B. He has brought
the original register containing DD Nos. 18 and 21. Copy of the relevant page is
Ex. PW-5/C and Ex. PW-5/D, the same is already placed on record. He has also
issued certificate U/s 65B Indian Evidence Act which is Ex. PW-5/E.
10. PW-6 ASI Mahesh Chand deposed that on 26.05.2016 he was
posted at Narcotic Cell as Head Constable MHC(M) at Kothwali, Darya Ganj.
On that day, he was on duty and had issued electronic weigh machine to SI
Rajni Kant Sharma. This witness has made entry in this regard in the register in
electronic weigh machine maintained in their office. The entry was made at
Serial No. 27. He has brought the original register containing the said entry. The
copy of the entry is Ex. PW-6/A. The machine was deposited by SI Rajni Kant
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in the maalkhana on 27.05.2016 at 6:00 am.
During his cross-examination on behalf of accused, it is stated by
him that SI Rajni Kant came at 3:50 pm on 26.05.2016. It is stated by him that
the machine was battery operated. It is stated by him that the battery was
charged when he handed over the machine. It is stated by him that the make of
the machine was R.K. Electronics (it was written on it).
11. PW-7 HC Vikas Kumar deposed that on 26.05.2016 he was posted
at Narcotics Cell, Kotwali, Daryaganj, Delhi as HC. On that day, he was present
at his office. He deposed on the same lines as deposed by PW-1 HC Birbal
Singh.
It is further stated by him that on the way, they crossed Shanti Van
Red Light and took Yamuna Bridge and via Geeta Colony, Pushta Road in front
of DC, East Office and via nala, reached Karkari mor Red Light and took right
turn via Telco T-point and took left turn and reached at ISBT Anand Vihar and
from there they took U-turn from beneath flyover and reached in front of
Railway Station Anand Vihar i.e. spot at about 4:45 pm.
It is stated by him that IO prepared notice U/s 50 NDPS Act in
duplicate by using carbon. On seeing the carbon copy of notice placed on file,
this witness identified his signatures at Points A and B of the notice. Notice is
Ex. PW-7/A. The contents of notice were read over to the accused by SI
Rajnikant. Original notice was served to the accused. Accused refused for his
search before Gazetted Officer or Magistrate and he also refused to take search
of the raiding party member or the police vehicle. The reply on the notice as
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stated by the accused was written by SI Rajnikant on the carbon copy as stated
by the accused. The reply bears signature of this witness at Point-B. After that
SI Rajnikant took the search of accused and one heavy ( vajni) polythene bag
was recovered from the right pocket of jeans pant which he was wearing. The
colour of the polythene was black. The polythene was checked, it was found
containing one transparent polythene having some matiyala powder. The mouth
of the transparent polythene was tied with rubber band. The rubber band was
removed and SI Rajnikant took some matiyala powered and checked the same
on the field testing kit, which he was having and it was found positive for
heroin.
It is stated by him that FSL form was also filled up at the spot and
SI Rajnikant had put his seal impression on the same. The sealed pullandas
alongwith FSL form were taken into police possession vide seizure memo Ex.
PW-7/B bearing signature of this witness at Point-A. Seal after use was handed
over to Ct. Birbal.
It is stated by him that SI Rajnikant prepared a tehrir and it was
handed over to this witness alongwith sealed case property, FSL form and
carbon copy of seizure memo with the direction to hand over the tehrir to the
DO, P.S. Crime Branch and handed over three sealed pullandas alongwith
carbon copy of seizure memo and FSL form to SHO, P.S. Crime Branch.
It is stated by him that he left the spot at about 8:50 pm in the same
car no. DL-1CL-4446 and reached P.S. Crime Branch, Malviya Nagar at about
9:45 pm. He handed over tehrir to DO for registration of the case and sealed
pullandas, carbon copy of seizure memo and FSL form to SHO Inspector Sunil
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Kumar in his office. Inspector Sunil Kumar asked the FIR Number from the DO
and put the FIR Number 82/16 and details on all the pullandas, FSL form and
carbon copy of seizure memo. SHO also signed on all the documents and
pullanda. He also put his seal impression of SK on all the three sealed
pullandas, FSL form. SHO called HC Jag Narain, MHC(M), P.S. Crime Branch
in his office alongwith register no.19. He (SHO) handed over all the three
sealed pullandas, FSL form and carbon copy of seizure memo for depositing the
same in the maalkhana. In his direction, entries were made in register no.19
regarding deposit of the case property in the present case. SHO put his
signatures on the entries made in register no.19. DD Entry No. 20 was made by
SHO at 10:30 pm regarding the proceedings conducted by him. After that this
witness left the office of SHO, P.S. Crime Branch. DO P.S. Crime Branch
handed over the original tehrir and the copy of FIR of the present case to this
witness at 11:20 pm. After that this witness left the office of P.S. Crime Branch
and reached office of Narcotic Cell Kotwali. This witness handed over
computer copy of FIR alongwith original tehrir to SI Sanjay Neolia, who was
present there. Further Investigation of the present case was already marked to SI
Sanjay Neolia, who left the Narcotic Cell at 12:10 am (midnight) in the Swift
car and directed this witness to remain at the office at Narcotic Cell.
It is stated by him that at about 3:45 am the raiding party of the
present case alongwith accused Iqbal Hussain came at the Narcotic Cell office.
Accused Mohd. Iqbal Hussain was produced before Inspector Aakash Rawat.
Accused was interrogated by Inspector Aakash Rawat who satisfied himself
regarding the arrest of accused in the present case. 2 nd IO SI Sanjay recorded the
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statement of Inspector Aakash Rawat between 4:00 am to 4:15 am. After that
custody of accused was handed over to this witness and Ct. Birbal and 2 nd IO
proceeded to P.S. Crime Branch.
It is stated by him that at 6:30 am 2 nd IO returned back to the office
of Narcotic Cell. 2nd IO recorded statements of Ct. Birbal and SI Rajnikant.
Statement of this witness was recorded between 7:30 am to 9:00 am by the 2 nd
IO. Identity of the accused is not disputed by Ld. Defence Counsel.
It is stated by him that earlier after writing the refusal of accused on
the carbon copy of notice U/s 50 NDPS Act as dictated by accused in verbatim
by first IO the refusal was read over and explained and after the accused got
satisfied he wrote his name on the reply. Accused had sated that he is illiterate
and can write his name only in Hindi.
Case property is already Ex. PW-1/Article 1 to Article 3.
During his cross-examination on behalf of accused, he could not
tell when the secret informer had come in the office, though it is stated by him
that he was present at 3:55 pm in the office before SI Rajni Kant. It is stated by
him that the raiding party stood in scattered manner within area of 20-30 meters.
It is stated by him that the raiding team members were visible to him. It is stated
by him that he was standing alone. It is stated by him that residential flats are
situated behind the wall and nala at the spot. It is stated by him that IO had not
called any occupant of the flat to join the investigation. It is stated by him that
IO had not called the local P.S. after recovery.
12. PW-8 ASI Jag Narain deposed that on 26.05.2016 he was posted at
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P.S. Crime Branch, Malviya Nagar as MHC(M). On that day, he was on duty.
SHO, P.S. Crime Branch Inspector Sunil Kumar called this witness in his office
alongwith Register No. 19. This witness went to office of SHO, P.S. Crime
Branch alongwith Register No. 19 and he (SHO) handed over three sealed cloth
pullandas alongwith FSL form and carbon copy of seizure memo. All the sealed
pullandas were having seal impression of 5APSNB DELHI and SK. The
pullandas were marked as A, B & C. The FSL form also had the sealed
impression of 5APSNB DELHI and SK. This witness made entry regarding the
deposit of the pullandas and the FSL form and copy of seizure memo in the
Register No. 19 in case FIR No. 082/16, P.S. Crime Branch, Malviya Nagar at
Sl. No. 2397 in his handwriting. After the entry was made, he had signed the
same and SHO, P.S. Crime Branch also put his signature. Signature of this
witness is at Point-A and the signature of SHO is at Point-B on the entry no.
2397. The entry is Ex. PW-8/A (OSR).
It is stated by him that on the next day i.e. 27.05.2016, SI Sanjay
Neolia handed over to this witness the articles recovered from personal search
of accused Iqbal Hussain, which included one original notice U/s 50 NDPS Act,
one black colour purse containing Rs. 460/- and Aadhaar Card, one debit card
of accused Iqbal Hussain alongwith copy of personal search memo in case FIR
No. 082/2016. The entry was done by this witness at Sl. No. 2398 in the
Register No. 19. The entry is Ex. PW-8/B (OSR).
It is stated by him that on 30.05.2016 sealed exhibits Mark-A in the
present case was sent to FSL, Rohini alongwith FSL form vide RC No. 195/21
through Ct. Rohit. This witness made entry to the said fact in the Register No.
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19, which is from Points X to X1 of Ex. PW-8/A (OSR) and bears his signature
at Point-C. Later on, Ct. Rohit returned back and handed over to this witness the
acknowledgment of case acceptance in case FIR No. 082/2016 alongwith copy
of road certificate no. 195/21 in the present case.
It is stated by him that on 12.08.2016 one sealed parcel alongwith
FSL result was handed over to this witness by Ct. Nityanand in the present case
and this witness made entry to the said effect, which is from Points Y to Y1 of
Ex. PW-8/A and bears his signature at Point-D.
This witness has brought the original RC No. 195/21 Ex. PW-8/C
(OSR) and also the acknowledgment of case acceptance, copy of the same is
Ex. PW-8/D (OSR).
During his cross-examination on behalf of accused, it is stated by
him that SHO had made the DD entry in his (this witness) presence at about
10:30 pm. It is stated by him that he was called by the SHO in his room at about
10:10-10:15 pm. It is stated by him that he remained in the office of SHO for
about 35-40 minutes. It is stated by him that the particulars of the FIR were
written on the pullanda, but he does not remember regarding the signatures
which were on the pullanda. It is stated by him that the FSL form was deposited
in original. It is stated by him that he had not mentioned time in the Register
No. 19.
13. PW-9 Inspector Sanjay Neolia deposed that on 27.05.2016 he was
posted at Narcotics Cell, Crime Branch, Daryaganj as SI. On that day, he was
on duty and at about 12:05 am HC Vikas came to his office and handed over a
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copy of FIR of the present case and the original rukka to him. The investigation
of the case was marked to this witness. After perusing the documents, this
witness departed for the spot i.e. Service Road, opposite Anand Vihar, Railway
Station, in a private vehicle vide DD No. 2 at 12:10 am. On seeing DD No. 2
placed on the file, this witness stated that the same is the true copy of DD No. 2
and the same is attested by ACP Crime and also bears his signature at Point-A.
The DD No. 2 is Ex. PW-9/A.
This witness reached the spot at about 12:45 am and met with SI
Rajnikant and Ct. Birbal. The facts of the case were apprised by SI Rajnikant to
this witness. SI Rajnikant also handed over accused (correctly identified by this
witness in the Court) alongwith the seizure memo original and carbon copy of
notice U/s 50 NDPS Act. This witness went through the documents prepared by
SI Rajnikant. This witness prepared site plan which is Ex. PW-9/B at the
instance of first IO SI Rajnikant. He recorded statement of Ct. Birbal between
1:05 am to 2:30 am. Accused was interrogated by this witness at about 2:50 am.
Accused was arrested in the present case by this witness vide arrest memo
already Ex. PW-1/A bearing my signature at Point-X. This witness also
conducted personal search of accused vide memo Ex. PW-1/B bearing signature
of this witness at Point-X. One folded notice U/s 50 NDPS Act in original, one
black colour wallet containing Rs. 460/- cash, one Aadhaar Card in the name of
accused Iqbal Hussain, one debit card of Bank of Baroda, U.P. Gramin Bank
and some visiting cards were recovered in the personal search of accused. This
witness also recorded the disclosure statement of the accused which is already
Ex. PW-1/C bearing signature of this witness at Point-X. After completing the
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proceedings at the spot, they all left for office of Narcotics Cell, Old Kotwali at
about 3:15 am. This witness produced the accused before Inspector Akash
Rawat at the office. Inspector Akash Rawat was present there at the office and
his office is located in the same premises at Narcotic Cell, Old Kotwali. The
accused was interrogated by Inspector Akash Rawat and he satisfied himself
regarding the seizure and arrest of the accused in the present case. This witness
recorded the statement of the Inspector Akash Rawat between 4:00 am to 4:15
am. Thereafter, this witness left the office for P.S. Crime Branch after handing
over the accused to Ct. Birbal and HC Vikas. This witness got deposited the
personal search items at the maalkhana P.S. Crime Branch, Malviya Nagar. This
witness had also met with SHO Sunil Kumar at P.S. Crime Branch, Malviya
Nagar and had recorded his statement. This witness also recorded the statement
of MHC(M) between 5:30 am to 5:45 am at Crime Branch, Malviya Nagar.
After that this witness returned back to the office of Narcotic Cell, Daryaganj at
about 6:30 am. This witness recorded statement of SI Rajnikant between 6:45
am to 7:00 am. This witness also recorded supplementary statement of Ct.
Birbal between 7:00 am to 7:15 am. This witness also recorded statement of HC
Vikas between 7:15 am to 9:00 am.
It is stated by him that on the same day, he had also prepared a
report U/s 57 NDPS Act regarding arrest of accused Iqbal Hussain. He had
prepared the report in duplicate and produced the same before Inspector Akash
Rawat for further proceedings.
On seeing the report U/s 57 NDPS Act regarding arrest of accused
Iqbal already Ex. PW-3/E, this witness stated that the same was prepared by
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him and also bears his signature at Point-X.
It is stated by him that on 30.05.2016 he directed Ct. Rohit to
collect the case property i.e. sample in the present case alongwith the other
necessary documents from MHC(M), P.S. Crime Branch, Malviya Nagar and
deposited the same at FSL, Rohini for testing. On the same day, later on, Ct.
Rohit came in the office of this witness and handed over to this witness copy of
RC No. 195/21 and copy of acknowledge of case acceptance. This witness
recorded the statement of Ct. Rohit. On the same day, this witness went to
Maalkhana, P.S. Crime Branch and recorded the statement of MHC(M) HC Jag
Narayan.
It is stated by him that information of arrest of accused was given
to his father from the office. The medical examination of accused was
conducted and later on, he was produced before the concerned Court and this
witness obtained 02 days PC remand. This witness alongwith staff members
went to Meer Ganj, Bareilly, U.P. alongwith accused to find the source of
contraband. Efforts were made on all the places to know about the source of
contraband alongwith U.P. Police, but in vain. After that they returned back to
Delhi alongwith accused and other staff members.
It is stated by him that after completion of investigation, he filed
charge-sheet before the Hon’ble Court. Later on, result from the FSL was
received in the present case. He went through the FSL result and filed it
alongwith supplementary charge-sheet.
It is stated by him that he had made DD No.4 regarding his arrival
and arrest of accused at Narcotic Cell, P.S. Crime Branch at 3:45 am. True copy
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of the same is Ex. PW-9/C. He lodged DD No.5 regarding his departure to P.S.
Crime Branch for depositing personal search articles of accused at 4:20 am.
True copy of the same is Ex. PW-9/D. He lodged DD No.6 regarding his arrival
at Narcotic Cell from P.S. Crime Branch at 6:30 am. True copy of the same is
Ex. PW-9/E.
On seeing original notice already Ex. PW-1/D, it is stated by this
witness that the same was recovered from the personal search of the accused.
On seeing carbon copy of report U/s 57 NDPS Act as well as its
original, it is stated by this witness that the said report was prepared by him and
produced before Inspector Aakash Rawat for onward transmission and bears his
signature at Point-B.
During his cross-examination on behalf of accused, it is stated by
him that at the time of arrest, he had not asked any passerby to join the
proceedings. It is stated by him that accused can sign only in Hindi. It is stated
by him that he had not called any officer from P.S. Anand Vihar to join the
proceedings conducted by him. It is stated by him that SI Rajnikant had given
his report U/s 57 NDPS Act prior to his (this witness’s) report. It is stated by
him that he reached the spot at 12:45 am and left at 3:15 am.
14. PW-10 Inspector Akash Rawat deposed that on 26.05.2016, he was
posted at Narcotic Cell, Crime Branch, Kotwali, Delhi. On that day, at about
3:30 pm, he was present in his office. SI Rajnikant alongwith secret informer
came at his office. SI Rajnikant informed this witness regarding secret
information that Iqbal Hussain who is resident of Bareilly, U.P. and who is
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indulged in the supply of heroine from Bareilly to Delhi and will come today
opposite Anand Vihar Railway at Service Road towards the road going towards
Gazipur between 5:00 and 6:00 pm and if raided he can be apprehended
alongwith contraband. This witness also made inquiries from secret informer
and satisfied himself regarding information and passed on the information to
ACP Ranvir Singh Dahiya, Narcotic Cell, Delhi, telephonically who directed
this witness to conduct a raid as per law and take necessary action and in turn
this witness directed SI Rajnikant to conduct raid as per law. The secret
information was lodged vide DD No. 28 at 3:45 pm by SI Rajnikant and copy of
same was produced before (this witness) for onward transmission. This witness
forwarded the same to ACP, Narcotic Cell. The carbon copy of DD No. 28
dated 26.05.2016 is Ex. PW-10/A and bears signature of this witness at Point-A.
On instruction of this witness, SI Rajnikant constituted a raiding party
comprising of himself, HC Vikas and Ct. Birbal and departed in private vehicle
No. DL 1CN-4446 Swift Car alongwith secret informer.
It is stated by him that on 27.05.2016 at 3:45 am, SI Sanjay Neolia
alongwith one person whose name disclosed as Iqbal Hussain arrested in this
case came in office of this witness and told him the entire facts. This witness
also inquired from the accused and found the recovery of 200 gms heroin and
his arrest justified. Thereafter, SI Sanjay Neolia recorded statement of this
witness between 4:00 am to 4:15 am. On the same day, during his routine
official work, this witness forwarded two reports U/s 57 NDPS Act. One
regarding seizure of 200 gms heroin prepared by SI Rajnikant and other report
regarding the arrest of accused Iqbal Hussain. The first report regarding seizure
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running into two pages is Ex. PW-10/B (Colly) bearing signature of this witness
at Point-A and second report is Ex. PW-10/C bearing his signature at Point-A.
This witness correctly identified accused in the Court.
During his cross-examination on behalf of accused, it is stated by
him that IO alongwith secret informer had come to his office at 3:30 pm on
26.05.2016. It is stated by him that he apprised ACP Narcotics qua secret
information telephonically, however he did not make any request to him to
come on the spot. It is stated by him that he did not note about the secret
information personally. He could not tell exactly about the age, height and
wearing clothes of the secret informer. He could not say about the handwriting
of DD Entry No. 28.
15. PW-11 Inspector Rajni Kant deposed that on 26.05.2016, he was
posted at Narcotics Cell, Crime Branch, Kotwali, Daryaganj, Delhi as SI. On
that day, he was present at his office. On that day, secret informer came to his
office at 3:15 pm and gave information that one Iqbal Hussain, who is the
resident of Bareilly, U.P. and used to supply heroin in Delhi, after bringing the
same from Bareilly to Delhi, he would come in between 5:00 pm to 6:00 pm
alongwith huge quantity of heroin at service road, opposite Anand Vihar
Railway Station to supply heroin to some person and if raided, there are chances
of recovery of contraband from him and both receiver and supplier can be
apprehended. This witness satisfied himself regarding the information and
produced the informer before Inspector Aakash Rawat who was present in his
office at about 3:30 pm. Inspector Aakash Rawat made inquiries from secret
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informer and satisfied himself regarding the information and passed on the
information to Sh. R.S. Dhaiya, ACP/N&CP telephonically. Directions were
received from ACP to conduct the raid as per law. This witness was directed by
Inspector Aakash Rawat to take necessary action regarding the information and
conduct as per law.
It is stated by him that he reduced the information vide DD No. 28
at 3:45 pm. Same is already Ex. PW-3/A and bears his signature at Point-B. He
placed the copy of DD before Inspector Aakash Rawat for compliance of
provision of Section 42 NDPS Act.
It is stated by him that after that he called Ct. Birbal and HC Vikas
to his office at about 3:55 pm and briefed them the secret information.
He deposed on the same lines as deposed by PW-1 HC Birbal
Singh and PW-7 HC Vikas Kumar.
This witness exhibited copy of DD No. 29 as Ex. PW-11/A bearing
his signature at Point-A.
It is stated by him that at the time of raid, he stood alongwith secret
informer.
On seeing the carbon copy of notice U/s 50 NDPS Act placed on
file, this witness identified his signature at Points E and F on the notice already
Ex. PW-7/A.
It is stated by him that the reply on the notice as stated and dictated
by the accused was written by him on the carbon copy as accused had stated
that he is illiterate and can write his name only in Hindi. After writing the reply,
this witness read over the reply to the accused written by him and after his
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understanding, accused wrote his name on the carbon copy of notice which is at
Point-G.
It is stated by him that he prepared a tehrir (running into two pages
from back to back), same is Ex. PW-11/B and it was handed over to HC Vikas
alongwith sealed case property, FSL form and carbon copy of seizure memo
with the direction to hand over the tehrir to the DO, P.S. Crime Branch and
handed over three sealed pullandas alongwith carbon copy of seizure memo and
FSL form to SHO, P.S. Crime Branch. Accordingly, HC Vikas left the spot at
about 8:45 pm in the same Swift car no. DL-1CL-4446.
It is stated by him that at about 12:45 am, SI Sanjay Neolia came at
the spot and met him. The facts of the case were apprised by him to SI Sanjay
Neolia. This witness handed over the accused (correctly identified by this
witness in the Court) alongwith the seizure memo original and carbon copy of
notice U/s 50 NDPS Act to SI Sanjay Neolia. He went through the documents
prepared by this witness. SI Sanjay Neolia prepared site plan at instance of this
witness which is already Ex. PW-9/B.
It is stated by him that SI Sanjay Neolia recorded statement of Ct.
Birbal between 1:05 am to 2:30 am. The accused was interrogated by SI Sanjay
Neolia at about 2:50 am, the accused was arrested in the present case by SI
Sanjay Neolia vide arrest memo already Ex. PW-1/A bearing signature of this
witness at Point-Y. SI Sanjay Neolia. SI Sanjay Neolia also conducted personal
search of accused vide memo already Ex. PW-1/B bearing signature of this
witness at Point-Y. One folded notice U/s 50 NDPS Act in original, one black
colour wallet containing Rs. 460/- cash, one Aadhaar Card in the name of
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(Crime Branch)
U/s 21 NDPS Act
accused Iqbal Hussain, one debit card of Bank of Baroda, U.P. Gramin Bank
and some visiting cards were recovered in the personal search of the accused. SI
Sanjay Neolia also recorded the disclosure statement of accused which is
already Ex. PW-1/C bearing signature of this witness at Point-Y.
It is stated by him that after completing the proceedings at the spot,
they all left for office of Narcotics Cell, Old Kotwali at about 3:15 am. SI
Sanjay Neolia produced the accused before Inspector Akash Rawat at the office.
Inspector Akash Rawat was present there at the office and his office is located
in the same premises at Narcotic Cell, Old Kotwali. The accused was
interrogated by Inspector Akash Rawat and he satisfied himself regarding the
seizure and arrest of the accused in the present case. Statement of this witness
was recorded by SI Sanjay Neolia in between 6:45 am to 7:00 am.
Later on, on the same day i.e. 27.05.2016 he had prepared a report
U/s 57 NDPS Act, copy of the same already Ex. PW-10/B (Colly) bearing his
signature at Point-D regarding seizure of contraband from accused Iqbal
Hussain. He had prepared the report in duplicate and produced the same before
Inspector Akash Rawat for further proceedings.
Case property is already Ex. PW-1/Article 1 to Article 3.
On seeing the original notice U/s 50 NDPS Act already Ex. PW-
1/D placed on the file, this witness identified his signature at Point-B and stated
that the said notice was prepared by him in duplicate via carbon process and the
original was served on accused after reading the contents of the notice to the
accused and explained and which was later on recovered in folded condition in
the personal search of the accused.
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During his cross-examination on behalf of accused, it is stated by
him that informer had not told him about the physical description i.e. height,
age, clothes of the accused. It is stated by him that informer had not told him
about the name, age and particular of the receiver who had to come to take the
contraband from the accused. It is denied by him that DD dated 26.05.2016 is
ante dated and manipulated. It is stated by him that he drove the vehicle to the
spot. It is stated by him that secret informer was sitting with him on the front
seat and HC Vikas & Ct. Birbal were sitting on back seat of the vehicle i.e.
Swift car. It is stated by him that the Swift car belonged to HC Vikas, though he
does not know whether HC Vikas is owner of the said vehicle or not. It is stated
by him that the field testing kit was already with him as it was issued in his
name. He failed to tell the expiry date of field testing kit used in the present
case. It is stated by him that he had not charged the weighing machine. It is
voluntarily stated by him that it would have been done by Maalkhana Incharge.
He failed to remember the registration number of the vehicles, riders of whom
were asked by him to join the proceedings. It is stated by him that he had not
requested Gazetted Officer or Magistrate to come on the spot even after
apprehension of accused. It is stated by him that he had explained the notice U/s
50 NDPS Act to the accused prior to taking his signature on the notice. It is
stated by him that they had asked the accused to give reply on the notice, but he
informed that he is illiterate and he can sign the notice. It is stated by him that
he had not measured the black polythene. He could not tell the weight of the
polythene. It is stated by him that the rubber band was thin. It is stated by him
that he had not measured the sample which he had tested in the field testing kit.
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It is stated by him that he had not measured the weight of transparent polythene.
It is stated by him that he had mixed up the contraband before taking the
sample. It is stated by him that he had mentioned the section, date and Police
Station on the pullanda. It is stated by him that pullanda was not stitched from
any side, it was only tied on the top. It is stated by him that there were three
seals of 5A, 5B and 5C and all were with him. It is stated by him that he had
received the said seals in 2013. It is stated by him that no handing over memo
was prepared while handing over seal 5A PS/NB DELHI to HC Birbal. It is
stated by him that no return memo of seal was prepared by him or HC Birbal. It
is stated by him that the rukka was written inside the car. It is stated by him that
no train ticket was found in the possession of accused at the time of his search.
16. PW-12 Sh. Santosh Tripathi, Assistant Director (Chemistry), FSL
deposed that on 30.05.2016, he was posted as a Senior Scientific Officer
(Chemistry), Rohini. On that day, one pullanda in sealed condition with the
seals of ‘P.S/N.B 5A DELHI’ and SK with specimen seals in case FIR No.
82/2016, P.S. Crime Branch, Malviya Nagar, Delhi for examination was
received in their office and the same was marked to this witness for
examination. He found seals were intact and tallied with the sample seals.
It is stated by him that the said parcel was already marked as A and
he opened the same and found the brown colour powder material weight
approximately 5.59 gms with polythene. He examined the said content, which
was marked as Ex. A. On examination, he found the said content Ex. A
contained diacetylmorphine (31.2%), 6-monoacetylmorphine, caffeine and
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acetaminophen. After examining the above-said contents, he resealed the
remnants with the seal of S.Ty FSL DELHI. His detailed report dated
29.07.2016 in this respect is Ex. PW-12/A and the same bears his signatures at
Points A and B. His seal impression are at Point-C.
17. PW-13 Inspector Sunil Kumar deposed that on 26.05.2016, he was
posted as SHO, P.S. Crime Branch. On that day, at about 9:55 pm, HC Vikas
came to the Police Station with three sealed pullandas marked as A, B and C
duly sealed with the seal of ‘5A PS NB DELHI’ alongwith carbon copy of
seizure memo and FSL form having impression of the above-mentioned seal.
This witness called the Duty Officer and took the FIR number of the present
case and mentioned the details of the case alongwith his signature on all the
above three pullandas and the documents. He counter sealed all the three
pullandas with his seal of SK. He had also put the seal impression of SK on FSL
form. He called the MHC(M) HC Jag Narain alongwith register no.19 to office
of this witness and handed over the case property alongwith documents.
MHC(M) made entry of the case property and the documents in register no.19
in presence of this witness. This witness signed the related entry of register
no.19, which is Ex. PW-13/A which bears his signature at Point-A. Thereafter,
he lodged DD No. 20 regarding information about the deposition of the case
property, samples and documents in this case U/s 55 NDPS Act at around 10:30
pm in DD register in this regard. The true copy of the same is Ex. PW-13/B. IO
recorded statement of this witness on 27.05.2016.
MHC(M) has produced the case property i.e. one brown envelope
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duly sealed with the seal of the Court is opened and the same is found
containing one white cloth pullanda Mark ‘A’ bearing the seal of ‘5A PS NB
DELHI’ and ‘SK’ bearing the details of the case alongwith name of this witness
and signatures at Point ‘C’.
Another white pullanda Mark ‘B’ duly sealed with the seal of the
Court is bearing the case details of the case alongwith his name and signatures
at Point ‘C’ is taken out.
Another white pullanda Mark ‘C’ duly sealed with the seal of the
Court is bearing the case details of the case alongwith his name and signatures
at Point ‘C’ is taken out.
The witness has correctly identified all the three pullandas which
were produced by HC Vikas before him on 26.05.2016 and deposited by the
witness in maalkhana.
During his cross-examination on behalf of accused, it is stated by
him that HC Vikas came to him with the case property and documents from the
spot, but he does not remember the spot. He could not tell whether HC Vikas
was in police uniform or not.
18. No other witness was examined by the prosecution. Thereafter,
P.E. was closed vide order dated 22.05.2024.
STATEMENT OF ACCUSED
19. Statement of accused was recorded under Section 313 Cr.P.C.
wherein he pleaded his innocence and denied entire prosecution’s case. It is
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stated by him that he is illiterate person and falsely implicated in the present
case. All the proceedings in this case were done by the police officials, while
sitting in the Police Station. He has been arrested by the police from his native
village illegally and the police has planted the alleged material upon him. No
recovery was done from him and police has forcibly took his signatures on
blank papers.
He chose to lead defence evidence, but despite ample opportunities
no defence witness was examined on behalf of accused, hence defence evidence
was closed vide order dated 10.07.2025.
FINAL ARGUMENTS
20. This Court has heard the Ld. Additional Public Prosecutor and the
Ld. Counsel for the accused and perused the record carefully.
21. It is contended by Ld. Addl. PP for the State that all the procedures
as per NDPS Act have been complied with in the present matter at the time of
recovery and thereafter. It is contended that 200 gms heroin from accused was
recovered. There is nothing on record to suggest that police officials had any
enmity with the accused. Thus, the offence U/s 21 NDPS Act is proved beyond
reasonable doubt against the accused.
22. Per contra, it is contended on behalf of the accused that accused has
been falsely implicated in the present case. It is contended that no CCTV
footage qua arrest of accused or his movement towards the spot of his arrest has
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been filed on record. It is contended that there is no videography or photography
of the recovery proceedings. No public person joined in the investigation as no
recovery was effected from the alleged place and time. It is contended that
similar FIR of some other case has been copy-pasted in the present matter. It is
contended that accused deserves acquittal in the present matter.
Legal Requirement to prove the Charges :-
23. Section 21 NDPS Act reads as under:
“21. Punishment for contravention in relation to manufactured drugs and
preparations.
Whoever, in contravention of any provision of this Act or any rule or order made
or condition of license granted thereunder, manufactures, possesses, sells,
purchases, transports, imports inter-State, exports inter-State or uses any
manufactured drug or any preparation containing any manufactured drug shall be
punishable,–
(a) where the contravention involves small quantity, with rigorous imprisonment
for a term which may extend to one year, or with fine which may extend to ten
thousand rupees, or with both;
(b) where the contravention involves quantity, lesser than commercial quantity
but greater than small quantity, with rigorous imprisonment for a term which may
extend to ten years and with fine which may extend to one lakh rupees;
(c) where the contravention involves commercial quantity, with rigorous
imprisonment for a term which shall not be less than ten years but which may
extend to twenty years and shall also be liable to fine which shall not be less than
one lakh rupees but which may extend to two lakh rupees:
Provided that the court may, for reasons to be recorded in the judgment, impose a
fine exceeding two lakh rupees.”
(emphasis supplied)
24. As far as contravention of the provisions is concerned, Section 8 of
NDPS Act completely prohibits the possession of narcotic drug or psychotropic
substances, except for medical or scientific purposes, that too in the manner as
prescribed by the Act. This section reads as under :
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U/s 21 NDPS Act“No person shall–
(a) cultivate any coca plant or gather any portion of coca plant; or
(b) cultivate the opium poppy or any cannabis plant; or
(c) produce, manufacture, possess, sell, purchase, transport, warehouse, use,
consume, import inter-State, export inter-State, import into India, export from
India or tranship any narcotic drug or psychotropic substance, except for
medical or scientific purposes and in the manner and to the extent provided by
the provisions of this Act or the rules or orders made thereunder and in a case
where any such provision, imposes any requirement by way of licence, permit
or authorisation also in accordance with the terms and conditions of such
licence, permit or authorisation:
Provided that, and subject to the other provisions of this Act and the rules made
thereunder, the prohibition against the cultivation of the cannabis plant for the
production of ganja or the production, possession, use, consumption, purchase,
sale, transport, warehousing, import inter-State and export inter-State of ganja
for any purpose other than medical and scientific purpose shall take effect only
from the date which the Central Government may, by notification in the Official
Gazette, specify in this behalf:
Provided further that nothing in this section shall apply to the export of poppy
straw for decorative purposes.”
(emphasis supplied)
25. As per the Section, possession of all narcotic drugs is prohibited by
Section 8 of NDPS Act.
26. The term “narcotic drugs” is defined in Section 2(xiv) as under :-
(xiv) “narcotic drug” means coca leaf, cannabis (hemp), opium, poppy straw and
includes all manufactured drugs;
27. As per the definition, ‘narcotic drug’ includes ‘manufactured drug’,
therefore, the possession of ‘manufactured drug’ is prohibited by Section 8 of
NDPS Act.
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28. The term “manufactured drug” is defined in Section 2(ix) of NDPS
Act, as under :-
(xi) “manufactured drug” means–
(a) all coca derivatives, medicinal cannabis, opium derivatives and poppy straw
concentrate;
(b) any other narcotic substance or preparation which the Central Government
may, having regard to the available information as to its nature or to a decision, if
any, under any International Convention, by notification in the Official Gazette,
declare not to be a manufactured drug,
but does not include any narcotic substance or preparation which the Central
Government may, having regard to the available information as to its nature or to
a decision, if any, under any International Convention, by notification in the
Official Gazette, declare not to be a manufactured drug;”
(emphasis supplied)
29. “Opium Derivatives” besides other things also means heroin. It is
defined in Section 2(xvi) of NDPS Act as under:
(xvi) “opium derivative” means–
(a) medicinal opium, that is, opium which has undergone the processes necessary
to adapt it for medicinal use in accordance with the requirements of the Indian
Pharmacopoeia or any other pharmacopoeia notified in this behalf by the Central
Government, whether in powder form or granulated or otherwise or mixed with
neutral materials;
(b) prepared opium, that is, any product of opium obtained by any series of
operations designed to transform opium into an extract suitable for smoking and
the dross or other residue remaining after opium is smoked;
(c) phenanthrene alkaloids, namely, morphine, codeine, thebaine and their salts;
(d) diacetylmorphine, that is, the alkaloid also known as dia-morphine or heroin
and its salts; and
(e) all preparations containing more than 0.2 per cent. of morphine or containing
any diacetylmorphine”
(emphasis supplied)
30. The prosecution would also be required to prove that the quantity
of the contraband recovered was of small, intermediate or commercial quantity.
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The terms “small quantity” and “commercial quantity” are defined in Section
2(xxiiia) & 2 (viia), as under :
“(xxiiia) “small quantity”, in relation to narcotic drugs and psychotropic
substances, means any quantity lesser than the quantity specified by the Central
Government by notification in the Official Gazette;
(viia) “commercial quantity”, in relation to narcotic drugs and psychotropic
substances, means any quantity greater than the quantity specified by the Central
Government by notification in the Official Gazette.”
31. The notification specifying small quantity & commercial quantity
vide SO1055(E) dated 19.10.2001 mentions the small quantity and commercial
quantity for various Narcotic Drugs & Psychotropic Substances, including
‘heroin’. As per entry at serial no.56 in the said notification, the small quantity
for Heroin is 5 gms and commercial quantity is 250 gms.
32. In order to prove the charge U/s 21 NDPS Act, the prosecution is
required to prove the following facts:
(1) That accused was in possession of contraband.
(2) That the possession was in contravention of the provision of
the Act or any rule on order made or condition of license granted thereunder.
(3) That the contraband was opium derivative/ heroin.
(4) That the quantity of the contraband was intermediate for
Section 21 NDPS Act.
33. Besides proving the aforesaid facts, the prosecution is also required
to prove that the investigating agency carried out the investigation in
compliance with the provisions of NDPS Act. The investigating agency must
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adhere strictly to the legal procedure established during the search, ensuring
transparency and fairness in the investigation. By adhering to this procedure, the
agency demonstrates its commitment to protecting personal liberty, a
fundamental right of citizens. This ensures that the search was conducted in a
manner that upholds the principles of the judicial system. The credibility of the
evidence presented by the prosecution is enhanced when the investigating
agency follows the statute scrupulously. The failure to adhere to the procedure
raises a doubt in the mind of the court regarding the manner in which the
investigation is carried out, which obviously favors the accused.
34. In State of Punjab Vs. Balbir Singh, 1994 INSC 96, Hon’ble Apex
Court considered the scheme of the Act as under :-
“4. The NDPS Act was enacted in the year 1985 with a view to consolidate and
amend the law relating to narcotic drugs, to make stringent provisions for the
control and regulation of operations relating to narcotic drugs and psychotropic
substances, to provide for the forfeiture of property derived from, or used in, illicit
traffic in narcotic drugs and psychotropic substances, to implement the provisions
of the International Conventions on Narcotic Drugs and Psychotropic Substances
and for matters connected therewith. Sections 1 to 3 in Chapter I deal with
definitions and connected matters. The provisions in Chapter II deal with the
powers of the Central Government to take measures for preventing and combating
abuse of and illicit traffic in narcotic drugs and to appoint authorities and officers
to exercise the powers under the Act. The provisions in Chapter III deal with
prohibition, control and regulation of cultivation of coca plant, opium poppy etc.
and to regulate the possession, transport, purchase and consumption of poppy
straw etc. Chapter IV deals with various offences and penalties for contravention
in relation to opium poppy, coca plant, narcotic drugs and psychotropic
substances and prescribes deterrent sentences. The provisions of Chapter V deals
with the procedure regarding the entry, arrest, search and seizure. Chapter VA
deals with forfeiture of property derived from or used in illicit traffic of such
drugs and substances. The provisions of Chapter VI deals with miscellaneous
matters. We are mainly concerned with Sections 41, 42, 43, 44, 49, 50, 51, 52 and
57. Under Section 41 certain classes of magistrates are competent to issue
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U/s 21 NDPS Actwarrants for the arrest of any person whom they have reason to believe to have
committed any offence punishable under Chapter IV or for search of any building,
conveyance or place in which they have reason to believe that any narcotic drug
or psychotropic substance in respect of which an offence punishable under
Chapter IV has been committed, is kept or concealed. Section 42 empowers
certain officers to enter, search, seize and arrest without warrant or authorisation.
Such officer should be superior in rank to a peon, sepoy or constable of the
departments of central excise, narcotics, customs, revenue, intelligence or any
other department of the Central Government or an officer of similar superior rank
of the revenue, drugs control, excise, police or any other department of a State
Government as is empowered in this behalf by general or special order of the
State Government. Such officer, if he has reason to believe from personal
knowledge or information taken down in writing, that any offence punishable
under Chapter IV has been committed, he may enter into and search in the manner
prescribed thereunder between sunrise and sunset. He can detain and search any
person if he thinks proper and if he has reason to believe such person to have
committed an offence punishable under Chapter IV. Under the proviso, such
officer may also enter and search a building or conveyance at any time between
sunset and sunrise also provided he has reason to believe that search warrant or
authorisation cannot be obtained without affording opportunity for concealment
of the evidence or facility for the escape of an offender. But before doing so, he
must record the grounds of his belief and send the same to his immediate official
superior. Section 43 empowers such officer as mentioned in Section 42 to seize in
any public place or in transit, any narcotic drug or psychotropic substance in
respect of which he has reason to believe that an offence punishable under
Chapter IV has been committed and shall also confiscate any animal or
conveyance alongwith such substance. Such officer can also detain and search any
person whom he has reason to believe to have committed such offence and can
arrest him and any other person in his company. Section 44 merely lays down that
provisions of Sections 41 to 43 shall also apply in relation to offences regarding
coca plant, opium poppy or cannabis plant. Under Section 49, any such officer
authorised under Section 42, if he has reason to suspect that any animal or
conveyance is, or is about to be, used for the transport of any narcotic drug or
psychotropic substance, can rummage and search the conveyance or part thereof,
examine and search any goods in the conveyance or on the animal and he can stop
the animal or conveyance by using all lawful means and where such means fail,
the animal or the conveyance may be fired upon. Then comes Section 50. ……
This provision obviously is introduced to avoid any harm to the innocent persons
and to avoid raising of allegation of planting or fabrication by the prosecuting
authorities. It lays down that if the person to be searched so requires, the officer
who is about to search him under the provisions of Sections 41 to 43, shall take
such person without any unnecessary delay to the nearest Gazetted Officer of any
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U/s 21 NDPS Actof the departments mentioned in Section 42 or to the nearest magistrate……..
Section 51 is also important for our purpose. ……. This is a general provision
under which the provisions of Code of Criminal Procedure, (“Cr. PC” for short)
are made applicable to warrants, searches, arrests and seizures under the Act.
Section 52 lays down that any officer arresting a person under Sections 41 to 44
shall inform the arrested person all the grounds for such arrest and the person
arrested and the articles seized should be forwarded without unnecessary delay to
the Magistrate by whom the warrant was issued or to the officer-in-charge of the
nearest police station, as the case may be and such Magistrate or the officer to
whom the articles seized or the person arrested are forwarded may take such
measures necessary for disposal of the person and the articles. This Section thus
provides some of the safeguards within the parameters of Article 22(1) of the
Constitution of India. In addition to this, Section 57 further requires that whenever
any person makes arrest or seizure under the Act, he shall within forty-eight hours
after such arrest or seizure make a report of the particulars of arrest or seizure to
his immediate official superior. This Section provides for one of the valuable
safeguards and tries to check any belated fabrication of evidence after arrest or
seizure.”
35. It is settled legal proposition that the procedure provided under
Chapter V of the NDPS Act has to be scrupulously followed for the Court to
raise such presumption. For raising the presumption U/s 54 of the Act it must be
first established that recovery was made from the accused and the procedure
provided under the NDPS Act followed thoroughly without fail. It is further
settled law that for attracting the provision of Section 54 of NDPS Act, it is
essential for the prosecution to establish the element of possession of
contraband by the accused beyond reasonable doubt for the burden to shift to
the accused to prove his innocence. This burden on the prosecution is a heavy
burden. To decide whether the burden has been discharged or not by the
prosecution, it is relevant to peruse the record and evidence and consider the
submissions made by the parties.
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36. Besides proving the aforesaid facts, the prosecution is also required
to prove that the investigating agency carried out the investigation in
compliance with the provisions of NDPS Act. The investigating agency must
adhere strictly to the legal procedure established during the search, ensuring
transparency and fairness in the investigation. By adhering to this procedure, the
agency demonstrates its commitment to protecting personal liberty, a
fundamental right of citizens. This ensures that the search was conducted in a
manner that upholds the principles of the judicial system. The credibility of the
evidence presented by the prosecution is enhanced when the investigating
agency follows the statute scrupulously as held by Hon’ble Bombay High Court
in the case titled as Koyappakalathil Ahamed Koya vs. A.S. Menon and Ors.
(03.07.2002 – BOMHC) : MANU/MH/1838/2002 :-
“In view of the principle that Ceaser’s wife must be above-board, the investigating
agency has to be consistent with the procedure laid down by law while conducting
the search and it has to be above-board in following the procedure by
investigating into the crime and if that is done it would assure the judicial mind
that by giving importance to the personal liberty a fundamental right of (he
citizen, the search was conducted. If that is done, then there would be
creditworthiness to such evidence which has been adduced by the prosecution.
The investigating agency must follow the procedure as envisaged by the statute
scrupulously and failure to do so must be viewed by the higher authorities
seriously inviting action against the concerned official so that laxity on the part of
the investigating authority is curbed.”
Thus, the failure to adhere to the procedure raises a doubt in the
mind of the Court regarding the manner in which the investigation is carried
out, which obviously favors the accused.
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37. It is settled legal proposition that the procedure provided under
Chapter V of the NDPS Act has to be scrupulously followed for the Court to
raise such presumption. For raising the presumption U/s 54 of the Act it must be
first established that recovery was made from the accused and the procedure
provided under the NDPS Act followed thoroughly without fail. It is further
settled law that for attracting the provision of Section 54 of NDPS Act, it is
essential for the prosecution to establish the element of possession of
contraband by the accused beyond reasonable doubt for the burden to shift to
accused to prove his innocence. This burden on the prosecution is a heavy
burden. To decide whether the burden has been discharged or not by the
prosecution, it is relevant to peruse the record and evidence and consider the
submissions made by the parties.
ANALYSIS OF EVIDENCE
38. The Court will now proceed to examine and discuss the various
aspects of the case and the relevant pieces of evidence under distinct headings
as follows:-
Discussion on the point of compliance of Section 42 or Section 43
of NDPS Act
39. Section 42 NDPS Act is as under :-
42. Power of entry, search, seizure and arrest without warrant or authorisation.–
(l) Any such officer (being an officer superior in rank to a peon, sepoy or consta-
ble) of the departments of central excise, narcotics, customs, revenue intelligence
or any other department of the Central Government including para-military forces
or armed forces as is empowered in this behalf by general or special order by the
Central Government, or any such officer (being an officer superior in rank to a
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peon, sepoy or constable) of the revenue, drugs control, excise, police or any
other department of a State Government as is empowered in this behalf by general
or special order of the State Government, if he has reason to believe from per-
sonal knowledge or information given by any person and taken down in writing
that any narcotic drug, or psychotropic substance, or controlled substance in re-
spect of which an offence punishable under this Act has been committed or any
document or other article which may furnish evidence of the commission of such
offence or any illegally acquired property or any document or other article which
may furnish evidence of holding any illegally acquired property which is liable
for seizure or freezing or forfeiture under Chapter VA of this Act is kept or con-
cealed in any building, conveyance or enclosed place, may between sunrise and
sunset,-
(a) enter into and search any such building, conveyance or place;
(b) in case of resistance, break open any door and remove any obstacle to such en-
try;
(c) seize such drug or substance and all materials used in the manufacture thereof
and any other article and any animal or conveyance which he has reason to be-
lieve to be liable to confiscation under this Act and any document or other article
which he has reason to believe may furnish evidence of the commission of any of-
fence punishable under this Act or furnish evidence of holding any illegally ac-
quired property which is liable for seizure or freezing or forfeiture under Chapter
VA of this Act; and
(d) detain and search, and, if he thinks proper, arrest any person whom he has rea-
son to believe to have committed any offence punishable under this Act:
Provided that in respect of holder of a licence for manufacture of manufactured
drugs or psychotropic substances or controlled substances granted under this Act
or any rule or order made thereunder, such power shall be exercised by an officer
not below the rank of sub-inspector:
Provided further that if such officer has reason to believe that a search warrant or
authorisation cannot be obtained without affording opportunity for the conceal-
ment of evidence or facility for the escape of an offender, he may enter and search
such building, conveyance or enclosed place at any time between sunset and sun-
rise after recording the grounds of his belief.
(2) Where an officer takes down any information in writing under sub-section (1)
or records grounds for his belief under the proviso thereto, he shall within sev-
enty-two hours send a copy thereof to his immediate official superior.”
(emphasis supplied)
40. With respect to the compliance of Section 42 NDPS Act, PW-11 SI
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Rajni Kant has stated that on 26.05.2016 at about 3:15 pm a secret informer
came to their office and informed that one Iqbal Hussain who is the resident of
Bareilly and used to supply heroin in Delhi would come between 5:00 pm to
6:00 pm with huge quantity of heroin at Service Road, opposite Anand Vihar
Railway Station to supply heroin to someone and if raided, there are chances of
recovery of contraband from him. PW-11 shared the information with PW-10
Inspector Akash Rawat, who verified the same and further apprised the said
information to ACP concerned i.e. PW-4 Ranbir Singh. ACP directed Inspector
Akash Rawat who further directed IO SI Rajni Kant to conduct raid as per law.
Thereafter, DD No. 28 was lodged regarding the secret information in
compliance of provisions of Section 42 NDPS Act. DD was placed before
Inspector Akash Rawat. DD No. 28 is Ex. PW-3/A. A raiding team was also
constituted by SI Rajni Kant including Ct. Birbal and HC Vikas.
PW-4 retired ACP Ranbir Singh deposed on the same lines. He
stated that at about 3:40 pm he received telephonic information from Inspector
Akash Rawat qua secret information being received by PW-11 SI Rajni Kant. It
is also stated by him that he directed Inspector Akash Rawat to take immediate
action.
41. DD No. 28 (Ex. PW-3/A) dated 26.05.2016 corroborates the
testimony of PW-11 as in the said DD Entry it is categorically mentioned that a
secret informer arrived in their office at 3:15 pm and conveyed to SI Rajni Kant
the secret information as stated above.
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42. As per Section 42 of the NDPS Act, the Central Government and
State Government may empower any officer, superior in rank to a Peon, Sepoy
or Constable to take action U/s 42 i.e. conduct search, seizure and arrest as per
the said section without warrant or authorisation. Further, in a notification dated
14.11.1985 which is reproduced here under officials of Delhi Police superior in
rank to a Constable were conferred power to take action U/s 42 of the NDPS
Act:-
No. F.10(76)/85-Fin.(G):-In exercise of the powers conferred by sub-section (I) of
section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (6l of
1985) read with the Government of India, Ministry of Home Affairs Notification
No.S.O. 818(E) dated the 8th November, 1985 the Administrator of the Union
territory of Delhi is pleased to empower all officers (being officers superior in
rank to a peon or constable) of the following Departments of the Delhi
Administration, Delhi, if they have reason to believe from personal knowledge or
information given by any person and taken down in writing, that any narcotic
drug, psychotropic substance in respect of which an offence punishable under
Chapter IV of the said Act has been committed or any document or other article
which may furnish evidence of the commission of such offence is kept or
concealed in any building, conveyance or enclosed place within the Metropolitan
Area of Delhi, between sunrise and sunset, to :
(a) enter into and search any such building, conveyance or place;
(b) in case of resistance, break open any door and remove any obstacle to
such entry;
(c) seize such drug or substance and all material used in the manufacture
thereof and any other article and any animal or conveyance which he has
reason to believe to be liable to confiscation under the said Act and any
document or other article which he has reason to believe may furnish
evidence of the commission of any offence punishable under Chapter IV of
the said Act, relating to such drug or substance; and
(d)detain and search, and, if he thinks proper, arrest any person whom he
has reason to believe to have committed any offence punishable under
Chapter IV of the said Act relating to such drug or substance;
Provided that if such officer has reason to believe that a search warrant or
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authorisation cannot be obtained without affording opportunity for the
concealment of evidence or facility for escape of an offender, he may enter and
search such building, conveyance or enclosed place at any time between sunset
and sunrise after recording the grounds of his belief
1. Revenue Department;
2. Drugs control Department;
3. Excise Department; and
4. Police Department.
43. As per the aforesaid notification published in Delhi Gazette on
14.11.1985, all the police officials of Delhi Police superior in rank to a
Constable have been empowered by the Administrator to exercise powers U/s
42(1) NDPS Act. According to the said notification r/w Section 42(1) NDPS
Act, PW-11 SI Rajni Kant was empowered to act U/s 42 of the NDPS Act.
44. In view of the above-stated circumstances, it can be held that
provisions of Section 42 of NDPS Act qua recording of secret information and
conducting search by empowered officer have been duly complied with in the
present case, as per record.
45. Since the present case is a case of recovery from public place,
hence, the question of compliance of Section 42 NDPS Act does not arise in the
facts of this case, rather Section 43 NDPS Act would come into play. Still due
compliance of Section 42 NDPS Act duly proves how the police reached the
spot where accused was arrested.
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46. It is deposed by all the members of raiding team that they
apprehended the accused on the road which leads to Gazipur, opposite Anand
Vihar Railway Station i.e. a public road at around 5:20 pm and from right side
pocket of his wearing jeans contraband was recovered.
47. In view of the above-stated circumstances, it can be held that
provisions of Section 43 NDPS Act have also been duly complied with in the
present case, as per record.
Discussion on the point of compliance of Section 50 of NDPS Act
48. Section 50 NDPS Act is as under :-
“Conditions under which search of persons shall be conducted.
(1) When any officer duly authorised under section 42 is about to search any
person under the provisions of section 41, section 42 or section 43, he shall, if
such person so requires, take such person without unnecessary delay to nearest
Gazetted Officer of any of the departments mentioned in section 42 or to the
nearest Magistrate.
(2) If such requisition is made, the officer may detain the person until he can bring
him before the Gazetted Officer or the Magistrate referred to in sub-section (1).
(3) The Gazetted Officer or the Magistrate before whom any such person is
brought shall, if he sees no reasonable ground for search, forthwith discharge the
person but otherwise shall direct that search be made.
(4) No female shall be searched by anyone excepting a female.
(5) When an officer duly authorised under section 42 has reason to believe that it
is not possible to take the person to be searched to the nearest Gazetted Officer or
Magistrate without the possibility of the person to be searched parting with
possession of any narcotic drug or psychotropic substance, or controlled
substance or article or document, he may, instead of taking such person to the
nearest Gazetted Officer or Magistrate, proceed to search the person as provided
under section100 of the Code of Criminal Procedure, 1973 (2 of 1974).
(6) After a search is conducted under sub-section (5), the officer shall record the
reasons for such belief which necessitated such search and within seventy-two
hours send a copy thereof to his immediate official superior.”
(emphasis supplied)
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49. As per prosecution case, after apprehension of the accused, he was
served with mandatory notice under Section 50 of the NDPS Act and on his
refusal to avail his legal rights, his search was carried out by PW-11 SI Rajni
Kant, wherein from right side pocket of the jeans worn by him a black colour
polythene containing one transparent polythene having matiyala powder was
recovered.
50. PW-11 in his deposition stated that he prepared notice U/s 50
NDPS Act and handed over the same to the accused. He also testified that he
apprised accused regarding his legal rights, as mentioned in the notice U/s 50
NDPS Act. Similarly, deposed by other members of the raiding party. Their
testimonies also found support from the testimony of PW-9 (the then SI)
Inspector Sanjay Neolia (second IO) who has stated that in the personal search of
accused he found the original notice U/s 50 NDPS Act (carbon copy of the said
notice is also on record exhibited as Ex. PW-7/A bearing refusal of the accused
and his signature at Point-G). Original notice U/s 50 NDPS Act is on record and
exhibited as Ex. PW-1/D.
51. Based on the testimonies of recovery witnesses, it appears that
accused was served with notice U/s 50 NDPS Act before his bodily search was
conducted and there was no violation of this mandatory provision as it is only on
his refusal, his personal search was conducted by PW-11 SI Rajni Kant.
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52. It may be noted that there are no cross-examination of these
witnesses as regards the notice under Section 50 NDPS Act given by PW-11 SI
Rajni Kant to accused Iqbal Hussain and as regards the response of the accused
to the notice, which was recorded on the copy of the notice. The witnesses were
only given some suggestions in their cross-examination which they denied.
53. Based on the testimonies of recovery witnesses, it has been
established that accused was duly served with notice U/s 50 NDPS Act before
his bodily search was conducted and there was no violation of this mandatory
provision.
54. Section 55 NDPS Act has been duly complied with in the present
matter as it is stated by PW-7 HC Vikas that after seizure of the contraband SI
Rajni Kant handed over rukka alongwith sealed parcels and copy of seizure
memo to him with instructions to hand over the rukka to Duty Officer and sealed
case property/ pullandas alongwith copy of seizure memo to SHO, P.S. Crime
Branch. On that he went to P.S. Crime Branch where he handed over rukka to
Duty Officer and sealed parcel alongwith copy of seizure memo to SHO
Inspector Sunil Kumar (PW-13).
This fact is corroborated by PW-13 Inspector Sunil Kumar, the
then SHO, P.S. Crime Branch who stated that at about 9:05 pm HC Vikas came
to his office and handed over to him three sealed pullandas marked as A, B & C
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sealed with the seal of ‘5A PS NB DELHI’ alongwith carbon copy of seizure
memo and FSL form having impression of the above-mentioned seal. PW-13
called the Duty Officer, took the FIR Number of the present case and mentioned
the details of the case alongwith his signature on all the three pullandas and the
documents. He counter-sealed all the three pullandas with his seal of ‘SK’. He
also put his seal impression on FSL form. Thereafter, he handed over the case
property and all documents to MHC(M) CP qua which entry was recorded in
Register No. 19 bearing his signature at Point-A. The entry is Ex. PW-13/A.
Thereafter, he also lodged a DD No. 20 dated 26.05.2016 at 10:30 pm regarding
the said proceedings which is Ex. PW-13/B.
55. Section 57 of the NDPS Act which requires that :-
“Whenever any person makes any arrest or seizure, under this Act,
he shall, within forty-eight hours next after such arrest or seizure, make a full
report of all the particulars of such arrest or seizure to his immediate official
superior.”
56. In the present matter, alleged recovery of contraband was
effectuated by PW-11 SI Rajni Kant and after recovery of the case property
investigation of the present case was marked to PW-9 SI Sanjay Neolia who
arrested the accused. Both these police officials had sent reports U/s 57 NDPS
Act to their respective ACPs.
The report prepared by PW-11 SI Rajni Kant was sent on
27.05.2016 forwarded by Inspector Narcotics Cell on the same day which was
received in the office of ACP concerned vide diary no. 1268 dated 27.05.2016
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(Ex. PW-3/D). The same was seen by ACP concerned on the same day. The
same is bearing signature of Inspector, N&CP as well as signature of ACP,
N&CP dated 27.05.2016 itself. The original report is on record as Ex. PW-3/C.
This fact has been corroborated with the testimony of PW-4 ACP Ranbir Singh
(retired).
The report prepared by PW-9 SI Sanjay Neolia was sent on
27.05.2016 forwarded by Inspector Narcotics Cell on the same day which was
received in the office of ACP concerned vide diary no. 1269 dated 27.05.2016
(Ex. PW-3/F). The same was seen by ACP concerned on the same day. The
same is bearing signature of Inspector, N&CP as well as signature of ACP,
N&CP dated 27.05.2016 itself. The original report is on record as Ex. PW-3/E.
This fact has been corroborated with the testimony of PW-4 ACP Ranbir Singh
(retired).
Thus, the said reports have been duly proved on record. The reports
were submitted to ACP concerned within 48 hours of recovery. Accordingly, in
the opinion of the Court the provisions of Section 57 of the NDPS Act were
duly complied with by the Investigating Agency in the facts of the present case.
Discussion on the point of recovery of contraband
57. As per prosecution case, on 26.05.2016 on the basis of secret
information, a raiding party was constituted which laid trap on the road which
leads to Gazipur. At about 5:20 pm accused seen coming on foot towards the
side of ISBT, Anand Vihar Foot over Bridge. Accused was identified on being
pointed out by secret informer. Accused Iqbal Hussain came on the road which
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leads to Gazipur, opposite Anand Vihar Railway Station and stood there and
started looking here and there as if waiting for someone. After waiting for 10
minutes, he started returning towards Foot over Bridge, when he was
apprehended by raiding team. On his personal search by SI Rajni Kant, a
polythene was recovered from the right side pocket of wearing jeans of accused
which was found containing 200 gms of matiyala powder, on testing by field
testing kit the same found to be heroin.
58. Two samples of 05 grams each were drawn at the spot from the
recovered contraband. The two samples were kept in two transparent polythene
bags, tied with rubber bands and two separate pullandas were made with the
help of cloth which were marked as Mark A and B. The remaining contraband
i.e. 190 grams was kept in the same transparent polythene which the accused
had brought, the mouth of polythene was tied with rubber band and the
polythene was kept in black colour polythene also recovered from the accused
and thereafter converted into pullanda with the help of white cloth and marked
as Mark-C. All the three pullandas were sealed with the seal of ‘5A PS NB
DELHI’ by PW-11 SI Rajni Kant. The same were seized vide seizure memo Ex.
PW-7/B, bearing signature of accused. The seal was handed over after use by
PW-11 SI Rajni Kant to PW-1 Ct. Birbal. PW-11 also prepared rukka and
handed over the same alongwith three sealed parcels, seizure memo and FSL
form to PW-7 HC Vikas with the directions to hand over the rukka to the Duty
Officer and the remaining things to the SHO.
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59. PW-1, PW-7 and PW-11 are the star witnesses of the prosecution
as they had apprehended the accused and had found contraband in his
possession.
Perusal of cross-examinations of these witnesses reveals that
nothing material has come in the same so as to doubt their deposition as regards
the alleged recovery. The witnesses withstood the rigors of cross-examination
and corroborated material particulars regarding the recovery of contraband from
the accused.
60. The testimonies of PW-1, PW-7 and PW-11 are corroborated by
testimony of PW-9, as the said witness reached the spot upon receiving the FIR,
where he found accused and PW-11 & PW-1 present.
PW-9 was also cross-examined, but there is nothing in his cross-
examination, which may create a doubt as regards the recovery alleged to have
been made from accused.
61. From the testimony of the aforesaid witnesses, it stands proved that
on 26.05.2016, one black colour polythene containing transparent polythene
containing 200 gms matiyala powder was recovered from the right side pocket
of the jeans worn by the accused, which upon testing at the spot with the field
testing kit were positive for heroin.
62. The accused neither in his statement U/s 313 Cr.P.C. nor in any of
the suggestions given to the prosecution witnesses, claimed animosity or
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acquaintance with the police officials, hence there was no ground or reason for
the police to falsely implicate him in the present case. Furthermore, till date the
accused has not raised any protest against his alleged false implication which
shows that he has taken this plea for the sake of plea and there is no substance
in it.
63. In view of the aforesaid discussions, it is held that prosecution has
successfully proved that accused was apprehended by PW-1, PW-7 and PW-11
with the contraband as alleged.
Discussion on non-joining of the public witnesses
64. During course of arguments, Ld. Defense Counsel submitted that
the prosecution case is highly doubtful as no public witness has been joined
during the entire investigation and the prosecution case solely rests on the
testimonies of police witnesses who are not reliable and credit worthy being
interested witnesses.
65. Admittedly, in the present case no public or independent witness
has been joined during course of the investigation, however it is clear from the
testimonies of the prosecution witnesses especially PW-11 that he made sincere
efforts to join public witnesses, but none agreed.
66. In this regard, PW-11 deposed that on the way to the spot as well as
on reaching the spot he requested various passerby to join the investigation, but
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non agreed and left citing their reasonable excuses without disclosing their
names and addresses and no notice could be served on them.
67. From the aforesaid deposition of the witness, it is clear that he
made efforts, to join public witnesses, but none agreed. The deposition of this
witness as regards repeated efforts made by him to join the public witnesses is
corroborated by PW-1 and PW-7.
68. Thus, the non-joining of independent witnesses despite efforts
having been made in this regard, is not fatal to the prosecution case. In this
regard, this Court is supported by the case law i.e. Ajmer Singh Vs. State of
Haryana reported as 2010 (2) SCR 785. The relevant para reads as under:-
“It is true that a charge under the Act is serious and carries onerous consequences.
The minimum sentence prescribed under the Act is imprisonment of 10 years and
fine. In this situation, it is normally expected that there should be independent
evidence to support the case of the prosecution. However, it is not an inviolable
rule. Therefore, in the peculiar circumstances of this case, we are satisfied that it
would be travesty of justice, if the appellant is acquitted merely because no
independent witness has been produced. We cannot forget that it may not be
possible to find independent witness at all places, at all times. The obligation to
take public witnesses is not absolute. If after making efforts which the court
considered in the circumstances of the case reasonable, the police officer is not
able to get public witnesses to associate with the raid or arrest of the culprit, the
arrest and the recovery made would not be necessarily vitiated. The court will
have to appreciate the relevant evidence and will have to determine whether the
evidence of the police officer was believable after taking due care and caution in
evaluating their evidence.”
69. Further, it is well settled law that the evidence of police official
cannot be doubted unless previous enmity between the accused and the police
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officials is shown. In Sunil Tomar vs. State of Punjab, AIRONLINE 2012 SC
728 decided on 19.10.2012, it was held :-
“In a case of this nature, it is better if prosecution examines at least one
independent witness to corroborate its case. However, in the absence of any
animosity between the accused and official witnesses, there is nothing wrong in
relying upon their testimonies and accepting the documents placed for basing
conviction. After taking into account the entire material relied upon by the
prosecution, there is no animosity established on the part of the official witnesses
by the accused in defence and we also did not find any infirmity in the
prosecution case.”
70. Furthermore, the police officials are considered to be equally
competent and reliable witnesses and their testimonies can be relied upon even
without corroboration by an independent witness if same is cogent and reliable.
In Rohtas Vs. State of Haryana, JT 2013(8) SC 181, Hon’ble Supreme Court
held that :-
‘Where all the witnesses are from police department, their depositions must be
subject to strict scrutiny. However, the evidence of police officials cannot be
discarded merely on the ground that they belong to the police force and either
interested in investigating or the prosecuting agency’.
71. It is also not uncommon that these days people are generally
reluctant to become part of investigation. In this regard, in Ram Swaroop Vs.
State (Govt. NCT) of Delhi‘, 2013(7) SCALE 407 , where the alleged seizure
took place at a crowded place yet no independent witness could be associated
with the seizure, Hon’ble Apex Court inter alia observed as under :-
“7. ….We may note here with profit there is no absolute rule that police officers
cannot be cited as witnesses and their depositions should be treated with suspect.
In this context we may refer with profit to the dictum in State of U.P. v. Anil
Singh, 1988 Supp SCC 686, wherein this Court took note of the fact that generally
the public at large are reluctant to come forward to depose before the court and,
therefore, the prosecution case cannot be doubted for non-examining the
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U/s 21 NDPS Actindependent witnesses.”
72. Thus, in view of the settled legal position, the testimony of the
police officials examined in the instant case cannot be seen with suspicion
merely for the reason of non-joining of independent witness as firstly it is clear
that sufficient efforts were made by PW-11. Furthermore, the testimonies of the
police officials do not suffer from any material contradiction to doubt their
version. Moreover, no animosity between accused and the police officials has
been pointed out. Therefore, even otherwise there is no reason to disbelieve the
testimonies of police officials regarding non-joining of public witnesses.
Compliance under section 52A NDPS Act
73. Admittedly, sampling in the present case was done at the spot and
not before the Magistrate as per section 52A NDPS Act. The question before the
Court is whether the entire trial stand vitiated in view of the said non-
compliance?
74. In Mohan Lal (supra), Hon’ble Apex Court while discussing the
ambit and purport of section 52 A NDPS Act, observed as under:-
“16. Sub-section (3) of Section 52-A requires that the Magistrate shall as soon as
may be allow the application. This implies that no sooner the seizure is effected
and the contraband forwarded to the officer-in-charge of the police station or the
officer empowered, the officer concerned is in law duty-bound to approach the
Magistrate for the purposes mentioned above including grant of permission to
draw representative samples in his presence, which samples will then be enlisted
and the correctness of the list of samples so drawn certified by the Magistrate. In
other words, the process of drawing of samples has to be in the presence and
under the supervision of the Magistrate and the entire exercise has to be certified
by him to be correct.
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17. The question of drawing of samples at the time of seizure which, more often
than not, takes place in the absence of the Magistrate does not in the above
scheme of things arise. This is so especially when according to Section 52-A(4) of
the Act, samples drawn and certified by the Magistrate in compliance with sub-
sections (2) and (3) of Section 52-A above constitute primary evidence for the
purpose of the trial. Suffice it to say that there is no provision in the Act that
mandates taking of samples at the time of seizure. That is perhaps why none of the
States claim to be taking samples at the time of seizure.
……..
19. […] There is in our opinion no manner of doubt that the seizure of the
contraband must be followed by an application for drawing of samples and
certification as contemplated under the Act. There is equally no doubt that the
process of making any such application and resultant sampling and certification
cannot be left to the whims of the officers concerned. The scheme of the Act in
general and Section 52-A in particular, does not brook any delay in the matter of
making of an application or the drawing of samples and certification. While we
see no room for prescribing or reading a time-frame into the provision, we are of
the view that an application for sampling and certification ought to be made
without undue delay and the Magistrate on receipt of any such application will be
expected to attend to the application and do the needful, within a reasonable
period and without any undue delay or procrastination as is mandated by sub-
section (3) of Section 52-A (supra). We hope and trust that the High Courts will
keep a close watch on the performance of the Magistrates in this regard and
through the Magistrates on the agencies that are dealing with the menace of drugs
which has taken alarming dimensions in this country partly because of the
ineffective and lackadaisical enforcement of the laws and procedures and cavalier
manner in which the agencies and at times Magistracy in this country addresses a
problem of such serious dimensions.”
75. In Yusuf @ Asif (supra), Hon’ble Apex Court while setting aside
the conviction of appellants therein, relied upon Mohan Lal (supra) and
observed as under :-
“10. […] it would be relevant to refer to the provisions of Section 52A (2), (3) and
(4) of the NDPS Act. The aforesaid provisions provide for the procedure and
manner of seizing, preparing the inventory of the seized material, forwarding the
seized material and getting inventory certified by the Magistrate concerned. It is
further provided that the inventory or the photographs of the seized substance and
any list of the samples in connection thereof on being certified by the Magistrate
shall be recognized as the primary evidence in connection with the offences
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xxx xxx xxx
12. A simple reading of the aforesaid provisions, as also stated earlier, reveals that
when any contraband/narcotic substance is seized and forwarded to the police or
to the officer so mentioned under Section 53, the officer so referred to in sub-
section (1) shall prepare its inventory with details and the description of the seized
substance like quality, quantity, mode of packing, numbering and identifying
marks and then make an application to any Magistrate for the purposes of
certifying its correctness and for allowing to draw representative samples of such
substances in the presence of the Magistrate and to certify the correctness of the
list of samples so drawn.
13. Notwithstanding the defence set up from the side of the respondent in the
instant case, no evidence has been brought on record to the effect that the
procedure prescribed under sub-sections (2), (3) and (4) of Section 52A of the
NDPS Act was followed while making the seizure and drawing sample such as
preparing the inventory and getting it certified by the Magistrate. No evidence has
also been brought on record that the samples were drawn in the presence of the
Magistrate and the list of the samples so drawn were certified by the Magistrate.
The mere fact that the samples were drawn in the presence of a gazetted officer is
not sufficient compliance of the mandate of sub-section (2) of Section 52A of the
NDPS Act.
xxx xxx xxx
15. In Mohanlal’s case, the apex court while dealing with Section 52A of the
NDPS Act clearly laid down that it is manifest from the said provision that upon
seizure of the contraband, it has to be forwarded either to the officer-in-charge of
the nearest police station or to the officer empowered under Section 53 who is
obliged to prepare an inventory of the seized contraband and then to make an
application to the Magistrate for the purposes of getting its correctness certified. It
has been further laid down that the samples drawn in the presence of the
Magistrate and the list thereof on being certified alone would constitute primary
evidence for the purposes of the trial.
16. In the absence of any material on record to establish that the samples of the
seized contraband were drawn in the presence of the Magistrate and that the
inventory of the seized contraband was duly certified by the Magistrate, it is
apparent that the said seized contraband and the samples drawn therefrom would
not be a valid piece of primary evidence in the trial. Once there is no primary
evidence available, the trial as a whole stands vitiated.”
76. In a recent judgment titled as Narcotics Control Bureau Vs. Kashif
2024 INSC 1045, discussed the effect of non-compliance of section 52A NDPS
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Act on the outcome of trial and summarized the observations in para 39 as
under :-
“39. The upshot of the above discussion may be summarized as under:
(i) The provisions of NDPS Act are required to be interpreted keeping in mind the
scheme, object and purpose of the Act; as also the impact on the society as a
whole. It has to be interpreted literally and not liberally, which may ultimately
frustrate the object, purpose and Preamble of the Act.
(ii) While considering the application for bail, the Court must bear in mind the
provisions of Section 37 of the NDPS Act which are mandatory in nature.
Recording of findings as mandated in Section 37 is sine qua non is known for
granting bail to the accused involved in the offences under the NDPS Act.
(iii) The purpose of insertion of Section 52A laying down the procedure for
disposal of seized Narcotic Drugs and Psychotropic Substances, was to ensure the
early disposal of the seized contraband drugs and substances. It was inserted in
1989 as one of the measures to implement and to give effect to the International
Conventions on the Narcotic drugs and psychotropic substances.
(iv) Sub-section (2) of Section 52A lays down the procedure as contemplated in
sub-section (1) thereof, and any lapse or delayed compliance thereof would be
merely a procedural irregularity which would neither entitle the accused to be
released on bail nor would vitiate the trial on that ground alone.
(v) Any procedural irregularity or illegality found to have been committed in
conducting the search and seizure during the course of investigation or thereafter,
would by itself not make the entire evidence collected during the course of
investigation, inadmissible. The Court would have to consider all the
circumstances and find out whether any serious prejudice has been caused to the
accused.
(vi) Any lapse or delay in compliance of Section 52A by itself would neither
vitiate the trial nor would entitle the accused to be released on bail. The Court will
have to consider other circumstances and the other primary evidence collected
during the course of investigation, as also the statutory presumption permissible
under Section 54 of the NDPS Act.”
77. In a very recent judgment of Bharat Aambale Vs. The State of
Chhattisgarh, Crl. Appeal No. 250/25, Hon’ble Apex Court answered the
question whether non-compliance of section 52A NDPS Act leads to automatic
acquittal. This was the only ground on which the conviction upheld by Hon’ble
High Court was under challenged before the Apex court. Relevant paras
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indicating the issue directly before the Hon’ble Court are as under :-
“3. The only contention raised before us by the learned counsel appearing for the
appellant herein is that the conviction could be said to have stood vitiated because
of the non-compliance of Section 52A of the NDPS Act.
4. The learned counsel appearing for the appellant placed strong reliance on the
decision of this Court rendered in the case of Union of India v. Mohan Lal & Anr.
reported in (2016) 3 SCC 379 to make good his submission that non- compliance
of Section 52A of the NDPS Act along with the relevant rules, would vitiate the
entire trial and the conviction.”
78. Hon’ble Apex Court discussed at length Mohan Lal (supra), Yusuf
@ Asif (supra) and several other judgments and discussed the outcome thereof
in the following paras :-
“24.What is discernible from the various decisions referred to by us, is that mere
non-compliance of the procedure under Section 52A or the Standing Order(s) /
Rules thereunder will not by itself render the trial vitiated or into an automatic
acquittal. In all instances where this Court set-aside the order of conviction, it did
so not solely for the reason that there was a violation of Section 52A but because
of and on the strength of the other discrepancies or shortcomings in the
prosecution’s case that rendered it doubtful.
26.Non-compliance or delayed compliance with the procedure prescribed under
Section 52A of the NDPS Act or the Rules / Standing Order(s) thereunder may
lead the court to draw an adverse inference against the prosecution. However, no
hard and fast rule can be laid down as to when such inference may be drawn, and
it would all depend on the peculiar facts and circumstances of each case. Such
delay or deviation from Section 52A of the NDPS Act or the Standing Order(s) /
Rules thereunder will not, by itself, be fatal to the case of the prosecution, unless
there are discrepancies in the physical evidence which may not have been there
had such compliance been done. What is required is that the courts take a holistic
and cumulative view of the discrepancies that exist in the physical evidence
adduced by the prosecution and correlate or link the same with any procedural
lapses or deviations. Thus, whenever, there is any deviation or non-compliance of
the procedure envisaged under Section 52A, the courts are required to appreciate
the same keeping in mind the discrepancies that exist in the prosecution’s case. In
such instances of procedural error or deficiency, the courts ought to be extra-
careful and must not overlook or brush aside the discrepancies lightly and rather
should scrutinize the material on record even more stringently to satisfy itself of
the aspects of possession, seizure or recovery of such material in the first place.
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27.In such circumstances, particularly where there has been lapse on the part of
the police in either following the procedure laid down in Section 52A of the
NDPS Act or the prosecution in adequately proving compliance of the same, it
would not be appropriate for the courts to resort to the statutory presumption of
commission of an offence from the possession of illicit material under Section 54
of the NDPS Act, unless the court is otherwise satisfied as regards the seizure or
recovery of such material from the accused persons from the other material on
record. Similarly, irrespective of any failure to follow the procedure laid under
Section 52A of the NDPS Act, if the other material on record adduced by the
prosecution inspires confidence and satisfies the court regarding both the recovery
and possession of the contraband from the accused, then even in such cases, the
courts can without hesitation proceed for conviction notwithstanding any
procedural defect in terms of Section 52A of the NDPS Act.
30.Thus, from above it is clear that the procedure prescribed by the Standing
Order(s) / Rules in terms of Section 52A of the NDPS Act is only intended to
guide the officers and to ensure that a fair procedure is adopted by the officer- in-
charge of the investigation, and as such what is required is substantial compliance
of the procedure laid therein. We say so because, due to varying circumstances,
there may be situations wherein it may not always be possible to forward the
seized contraband immediately for the purpose of sampling. This could be due to
various factors, such as the sheer volume of the contraband, the peculiar nature of
the place of seizure, or owing to the volatility of the substance so seized that may
warrant slow and safe handling. There could be situations where such contraband
after being sampled cannot be preserved due to its hazardous nature and must be
destroyed forthwith or vice-verse where the nature of the case demands that they
are preserved and remain untouched. Due to such multitude of possibilities or
situations, neither can the police be realistically expected to rigidly adhere to the
procedure laid down in Section 52A or its allied Rules / Orders, nor can a strait-
jacket formula be applied for insisting compliance of each procedure in a specified
timeline to the letter, due to varying situations or requirements of each case. Thus,
what is actually required is only a substantial compliance of the procedure laid
down under Section 52A of the NDPS Act and the Standing Order(s) / Rules
framed thereunder, and any discrepancy or deviation in the same may lead the
court to draw an adverse inference against the police as per the facts of each and
every case. When it comes to the outcome of trial, it is only after taking a
cumulative view of the entire material on record including such discrepancies, that
the court should proceed either to convict or acquit the accused. Non- compliance
of the procedure envisaged under Section 52A may be fatal only in cases where
such non-compliance goes to the heart or root of the matter. In other words, the
discrepancy should be such that it renders the entire case of the prosecution
doubtful, such as instances where there are significant discrepancies in the colour
or description of the substance seized from that indicated in the FSL report as was
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U/s 21 NDPS Actthe case in Noor Aga (supra), or where the contraband was mixed in and stored
with some other commodity like vegetables and there is no credible indication of
whether the narcotic substance was separated and then weighed as required under
the Standing Order(s) or Rules, thereby raising doubts over the actual quantity
seized as was the case in Mohammed Khalid (supra), or where the recovery itself
is suspicious and uncorroborated by any witnesses such as in Mangilal (supra), or
where the bulk material seized in contravention of Section 52A was not produced
before the court despite being directed to be preserved etc. These illustrations are
only for the purposes of bringing clarity on what may constitute as a significant
discrepancy in a given case, and by no means is either exhaustive in nature or
supposed to be applied mechanically in any proceeding under the NDPS Act. It is
for the courts to see what constitutes as a significant discrepancy, keeping in mind
the peculiar facts, the materials on record and the evidence adduced. At the same
time, we may caution the courts, not to be hyper-technical whilst looking into the
discrepancies that may exist, like slight differences in the weight, colour or
numbering of the sample etc. The Court may not discard the entire prosecution
case looking into such discrepancies as more often than not an ordinarily an
officer in a public place would not be carrying a good scale with him, as held in
Noor Aga (supra). It is only those discrepancies which particularly have the
propensity to create a doubt or false impression of illegal possession or recovery,
or to overstate or inflate the potency, quality or weight of the substance seized that
may be pertinent and not mere clerical mistakes, provided they are explained
properly. Whether, a particular discrepancy is critical to the prosecution’s case
would depend on the facts of each case, the nature of substance seized, the quality
of evidence on record etc.
31.At the same time, one must be mindful of the fact that Section 52A of the
NDPS Act is only a procedural provision dealing with seizure, inventory, and
disposal of narcotic drugs and psychotropic substances and does not exhaustively
lay down the evidentiary rules for proving seizure or recovery, nor does it dictate
the manner in which evidence is to be led during trial. It in no manner prescribes
how the seizure or recovery of narcotic substances is to be proved or what can be
led as evidence to prove the same. Rather, it is the general principles of evidence,
as enshrined in the Evidence Act that governs how seizure or recovery may be
proved.
32.Thus, the prosecution sans the compliance of the procedure under Section 52A
of the NDPS Act will not render itself helpless but can still prove the seizure or
recovery of contraband by leading cogent evidence in this regard such as by
examining the seizing officer, producing independent witnesses to the recovery, or
presenting the original quantity of seized substances before the court. The
evidentiary value of these materials is ultimately to be assessed and looked into by
the court. The court should consider whether the evidence inspires confidence.
The court should look into the totality of circumstances and the credibility of the
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U/s 21 NDPS Actwitnesses, being mindful to be more cautious in their scrutiny where such
procedure has been flouted. The cumulative effect of all evidence must be
considered to determine whether the prosecution has successfully established the
case beyond reasonable doubt as held in Noor Aga (supra).
33.Even in cases where there is non-compliance with the procedural requirements
of Section 52A, it does not necessarily vitiate the trial or warrant an automatic
acquittal. Courts have consistently held that procedural lapses must be viewed in
the context of the overall evidence. If the prosecution can otherwise establish the
chain of custody, corroborate the seizure with credible testimony, and prove its
case beyond reasonable doubt, the mere non-compliance with Section 52A may
not be fatal. The emphasis must be on substantive justice rather than procedural
technicalities, and keeping in mind that the salutary objective of the NDPS Act is
to curb the menace of drug trafficking.
The Hon’ble Court finally summarized the law on the subject in
para 50 as under :-
“50.We summarize our final conclusion as under: –
(I) Although Section 52A is primarily for the disposal and destruction of seized
contraband in a safe manner yet it extends beyond the immediate context of drug
disposal, as it serves a broader purpose of also introducing procedural safeguards
in the treatment of narcotics substance after seizure inasmuch as it provides for the
preparation of inventories, taking of photographs of the seized substances and
drawing samples therefrom in the presence and with the certification of a
magistrate. Mere drawing of samples in presence of a gazetted officer would not
constitute sufficient compliance of the mandate under Section 52A sub-section (2)
of the NDPS Act.
(II) Although, there is no mandate that the drawing of samples from the seized
substance must take place at the time of seizure as held in Mohanlal (supra), yet
we are of the opinion that the process of inventorying, photographing and drawing
samples of the seized substance shall as far as possible, take place in the presence
of the accused, though the same may not be done at the very spot of seizure.
(III) Any inventory, photographs or samples of seized substance prepared in
substantial compliance of the procedure prescribed under Section 52A of the
NDPS Act and the Rules / Standing Order(s) thereunder would have to be
mandatorily treated as primary evidence as per Section 52A sub-section (4) of the
NDPS Act, irrespective of whether the substance in original is actually produced
before the court or not.
(IV) The procedure prescribed by the Standing Order(s) / Rules in terms of
Section 52A of the NDPS Act is only intended to guide the officers and to see that
a fair procedure is adopted by the officer in-charge of the investigation, and as
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(V) Mere non-compliance of the procedure under Section 52A or the Standing
Order(s) / Rules thereunder will not be fatal to the trial unless there are
discrepancies in the physical evidence rendering the prosecution’s case doubtful,
which may not have been there had such compliance been done. Courts should
take a holistic and cumulative view of the discrepancies that may exist in the
evidence adduced by the prosecution and appreciate the same more carefully
keeping in mind the procedural lapses.
(VI) If the other material on record adduced by the prosecution, oral or
documentary inspires confidence and satisfies the court as regards the recovery as-
well as conscious possession of the contraband from the accused persons, then
even in such cases, the courts can without hesitation proceed to hold the accused
guilty notwithstanding any procedural defect in terms of Section 52A of the NDPS
Act.
(VII) Non-compliance or delayed compliance of the said provision or rules
thereunder may lead the court to drawing an adverse inference against the
prosecution, however no hard and fast rule can be laid down as to when such
inference may be drawn, and it would all depend on the peculiar facts and
circumstances of each case.
(VIII) Where there has been lapse on the part of the police in either following the
procedure laid down in Section 52A of the NDPS Act or the prosecution in
proving the same, it will not be appropriate for the court to resort to the statutory
presumption of commission of an offence from the possession of illicit material
under Section 54 of the NDPS Act, unless the court is otherwise satisfied as
regards the seizure or recovery of such material from the accused persons from the
other material on record.
(IX) The initial burden will lie on the accused to first lay the foundational facts to
show that there was non-compliance of Section 52A, either by leading evidence of
its own or by relying upon the evidence of the prosecution, and the standard
required would only be preponderance of probabilities.
(X) Once the foundational facts laid indicate non-compliance of Section 52A of
the NDPS Act, the onus would thereafter be on the prosecution to prove by cogent
evidence that either (i) there was substantial compliance with the mandate of
Section 52A of the NDPS Act OR (ii) satisfy the court that such non-compliance
does not affect its case against the accused, and the standard of proof required
would be beyond a reasonable doubt.”
(emphasis supplied)
79. Though, in the present case there is no compliance of section 52A
NDPS Act, as the sampling proceedings were done by the IO at the spot,
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however, in view of the judgment in Kashif (supra) and Bhart Ambale (supra),
the said fact by itself does not vitiate the trial. As held by the Hon’ble Court in
absence of compliance U/s 52A NDPS Act the onus is upon the prosecution to
prove by cogent evidence that such non-compliance does not affect its case
against the accused, and the standard of proof required would be beyond a
reasonable doubt.
80. In the present case, two samples of 05 grams each were drawn at
the spot from the recovered contraband. The two samples were kept in two
transparent polythene bags, tied with rubber bands and two separate pullandas
were made with the help of cloth which were marked as Mark A and B. The
remaining contraband i.e. 190 grams was kept in the same transparent polythene
which the accused had brought, the mouth of polythene was tied with rubber
band and the polythene was kept in black colour polythene also recovered from
the accused and thereafter converted into pullanda with the help of white cloth
and marked as Mark-C. All the three pullandas were sealed with the seal of ‘5A
PS NB DELHI’ by PW-11 SI Rajni Kant. Thereafter, in compliance of
proceedings U/s 55 NDPS Act PW-13 Inspector Sunil Kumar also put his seal
of ‘SK’ on all the three pullandas.
81. As per FSL report Ex. PW-12/A and testimony of PW-12 Sh.
Santosh Tripathi, one parcel Mark-A was received at FSL and was examined by
him. Parcel Mark-A was found bearing two seals i.e. ‘PS/NB 5A DELHI’ and
‘SK’. Thus, as per the FSL result Ex. PW-12/A, the sample of the case property
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(pullanda Mark-A) which was sealed at the spot with the seal of ‘PS NB 5A
DELHI’ and was counter sealed by SHO Inspector Sunil Kumar with his seal of
‘SK’, was received in the same condition with both the seals intact in the FSL
on 30.05.2016.
82. It may be noted that the case property in original as primary
evidence was produced during the testimony of PW-1 and opened in the Court.
An envelope Mark-A having FSL Number and details of the present case was
found bearing the due seal of FSL, the seal was broken in the court, envelope
opened, the same was found containing one torn cloth pullanda bearing the seals
of ‘PS/NB 5A DELHI’ and ‘SK’. The same is exhibited as P-1/ Article-1.
One more pullanda bearing Mark-B having due seals of ‘PS/NB 5A
Delhi’ and ‘SK’ also produced in the Court, its seals were broken in the court,
the same was found containing one of the sample taken at the spot. The same is
exhibited as P-1/ Article-2.
One more pullanda bearing Mark-C having due seals of ‘PS/NB 5A
Delhi’ and ‘SK’ also produced in the Court, its seals were broken in the court,
the same was found containing one black polythene containing one transparent
polythene having brownish material. The same is exhibited as P-1/ Article-3.
The observation of the Court at the time of opening the case
property during the testimony of PW-1 is relevant to establish that the seal of
‘PS/NB 5A DELHI’ and ‘SK’ remained intact throughout the proceedings till
the time the remaining contraband and sample Mark-B were opened in the
Court and seal of FSL was found intact on sample Mark-A.
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83. Therefore, in the opinion of the Court, the case property, which was
sealed at the spot with the seal of ‘PS/NB 5A DELHI’ by PW-11 SI Rajni Kant
and was further sealed at the Police Station by PW-13 Inspector Sunil Kumar
with the seal of ‘SK’ was found intact by Sh. Santosh Tripathi, Asstt. Director
(Chemistry) FSL on the sample Mark-A, which he analyzed in terms of report
Ex. PW-12/A and the remaining contraband as well as sample Mark-B were
found intact bearing the seals of ‘PS/NB 5A DELHI’ and ‘SK’, when the same
were produced before the Court and exhibited as Ex. P-1/ Article-2 and Ex. P-1/
Article-3 on 20.02.2019.
84. Accordingly, the prosecution proved beyond reasonable doubt that
non-compliance of section 52A NDPS Act does not affect its case against the
accused, as the case property seized at the spot was produced as primary
evidence before the Court with the seals intact and while the said case property
remained in police custody, it was not tampered with.
85. Accordingly, it is held that the integrity of the case property was
maintained from the time the case property was seized at the spot till the time
the samples were analyzed at FSL and the pullandas Mark-B and C were
produced before the Court.
Whether recovered substance is heroin?
86. As stated earlier, 200 gms matiyala powder was recovered from the
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right side pocket of wearing jeans of accused. Two samples of 05 gms each
were taken from pullanda, they were marked as A and B and remaining
substance was kept in a separate pullanda marked as C. The samples and
pullandas were sealed with the seal ‘PS/NB 5A DELHI’ and counter-sealed
with the seal of ‘SK’.
Sample pullanda Mark-A was received in the FSL with the seal of
‘PS/NB 5A DELHI’ and ‘SK’, the seals were found intact. The expert analysis
on the sample was carried out at FSL by Sh. Santosh Tripathi, Senior Scientific
Officer (Chemistry), FSL, Rohini, Delhi examined as PW-12. As per the FSL
result Ex. PW-12/A, on examination of Ex. A (taken out from pullanda Mark-
A) it was found to contain Diacetylmorphine (31.2%), 6-Monoacetylmorphine,
Caffeine and Acetaminophen.
87. There is nothing to doubt the FSL Result Ex. PW-12/A, which was
prepared by Senior Scientific Officer (Chemistry) FSL, who is a Senior Officer
at FSL, Rohini and has no reason or motive to give a false or manipulated
report.
88. In view of the same, it is held that the accused Iqbal Hussain was
found in possession of intermediate quantity of heroin i.e. 200 gms.
Videography and Photography not done during the proceedings and
CCTV footage not produced
89. It was submitted on behalf of accused that, though, the spot, where
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the accused was allegedly apprehended was a public road where several public
witnesses were available, but neither videography nor photography of the
proceedings was conducted by the investigating agency.
90. It is true that there is no videography or photography of the
recovery proceedings which were conducted in 2016.
91. 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?
92. Though the videography and photography of the search and seizure
proceedings is no doubt desirable, but its absence cannot be a ground to
disbelieve the deposition of the recovery witnesses.
93. This is neither any legal provision that makes it mandatory in each
case that the recovery proceedings be videographed or photographed, nor there
is any law of evidence, that in absence of videography/ photography, the
evidence of the prosecution witnesses cannot be relied upon. Accordingly,
absence of videography/ photography of recovery proceedings by itself does not
render the case of prosecution doubtful.
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Presumption
94. Established jurisprudence dictates that, once possession is
demonstrated, the burden of proof shifts to the individual asserting a lack of
conscious possession or awareness of concealment. Section 35 of the Act
codifies this principle through a statutory presumption in law. Similarly, Section
54 permits a presumption arising from the possession of illicit items. It is
incumbent upon the accused to substantiate his claim of either unawareness or
absence of conscious possession of contraband. Hon’ble Apex Court in Mohan
Lal Vs. State of Rajasthan, Crl. (2015) 6 SCC 222 dealt with this aspect in detail
and held as under :-
12. Coming to the context of Section 18 of the NDPS Act, it would have a
reference to the concept of conscious possession. The legislature while enacting
the said law was absolutely aware of the said element and that the word
“possession” refers to a mental state as is noticeable from the language employed
in Section 35 of the NDPS Act. The said provision reads as follows:
35. Presumption of culpable mental state.-
(1) In any prosecution for an offence under this Act which requires a culpable
mental state of the accused, the Court shall presume the existence of such mental
state but it shall be a defence for the accused to prove the fact that he had no such
mental state with respect to the act charged as an offence in that prosecution.
Explanation.-In this section “culpable mental state” includes intention, motive,
knowledge, of a fact and belief in, or reason to believe, a fact.
(2) For the purpose of this section, a fact is said to be proved only when the
Court believes it to exist beyond a reasonable doubt and not merely when its
existence is established by a preponderance of probability.
On a perusal of the aforesaid provision, it is plain as day that it includes
knowledge of a fact. That apart, Section 35 raises a presumption as to knowledge
and culpable mental state from the possession of illicit articles. The expression
“possess or possessed” is often used in connection with statutory offences of being
in possession of prohibited drugs and contraband substances. Conscious or mental
state of possession is necessary and that is the reason for enacting Section 35 of
the NDPS Act.
XXXXX
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16. From the aforesaid exposition of law it is quite vivid that the term
“possession” for the purpose of Section 18 of the NDPS Act could mean physical
possession with animus, custody or dominion over the prohibited substance with
animus or even exercise of dominion and control as a result of concealment. The
animus and the mental intent which is the primary and significant element to show
and establish possession. Further, personal knowledge as to the existence of the
“chattel” i.e. the illegal substance at a particular location or site, at a relevant time
and the intention based upon the knowledge, would constitute the unique
relationship and manifest possession. In such a situation, presence and existence
of possession could be justified, for the intention is to exercise right over the
substance or the chattel and to act as the owner to the exclusion of others. In the
case at hand, the Appellant, we hold, had the requisite degree of control when,
even if the said narcotic substance was not within his physical control at that
moment. To give an example, a person can conceal prohibited narcotic substance
in a property and move out thereafter. The said person because of necessary
animus would be in possession of the said substance even if he is not, at the
moment, in physical control. The situation cannot be viewed differently when a
person conceals and hides the prohibited narcotic substance in a public space. In
the second category of cases, the person would be in possession because he has
the necessary animus and the intention to retain control and dominion. As the
factual matrix would exposit, the accused-Appellant was in possession of the
prohibited or contraband substance which was an offence when the NDPS Act
came into force. Hence, he remained in possession of the prohibited substance and
as such offence Under Section 18 of the NDPS Act is made out. The possessory
right would continue unless there is something to show that he had been divested
of it. On the contrary, as we find, he led to discovery of the substance which was
within his special knowledge, and, therefore, there can be no scintilla of doubt that
he was in possession of the contraband article when the NDPS Act came into
force. To clarify the situation, we may give an example. A person had stored 100
bags of opium prior to the NDPS Act coming into force and after coming into
force, the recovery of the possessed article takes place. Certainly, on the date of
recovery, he is in possession of the contraband article and possession itself is an
offence. In such a situation, the accused-Appellant cannot take the plea that he had
committed an offence Under Section 9 of the Opium Act and not Under Section
18 of the NDPS Act.”
95. In Noor Aga Vs. State of Punjab and Anr., (2008) 16 SCC 417,
Hon’ble Court noted Section 35 of the NDPS Act which provides for
presumption of culpable mental state and further noted that it also provides that
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STATE Vs. IQBAL HUSSAIN
FIR No. 82/2016
(Crime Branch)
U/s 21 NDPS Act
the accused may prove that he had no such mental state with respect to the act
charged as an offence under the prosecution. The Court also referred to Section
54 of the NDPS Act which places the burden to prove on the accused as regards
possession of the contraband articles on account of the same satisfactorily.
96. Additionally, Hon’ble Supreme Court, in Sardul Singh Vs. State of
Haryana, (2002) 8 SCC 372, discussed the approach the Court should take when
analyzing the evidence, as under :-
“There cannot be a prosecution case with a cast iron perfection in all respects and
it is obligatory for the courts to analyse, sift and assess the evidence on record,
with particular reference to its trustworthiness and truthfulness, by a process of
dispassionate judicial scrutiny adopting an objective and reasonable appreciation
of the same, without being obsessed by an air of total suspicion of the case of the
prosecution. What is to be insisted upon is not implicit proof. It has often been
said that evidence of interested witnesses should be scrutinized more carefully to
find out whether it has a ring of truth and if found acceptable and seem to inspire
confidence, too, in the mind of the court, the same cannot be discarded totally
merely on account of certain variations or infirmities pointed or even additions
and embellishments noticed, unless they are of such nature as to undermine the
substratum of the evidence and found to be tainted to the core. Courts have a duty
to undertake a complete and comprehensive appreciation of all vital features of the
case and the entire evidence with reference to the broad and reasonable
probabilities of the case also in their attempt to find out proof beyond reasonable
doubt.”
97. Upon reviewing the evidence, despite some lapses, gaps, and
discrepancies, the prosecution has proven the foundational facts against the
accused Iqbal Hussain beyond reasonable doubt. The presumption under
Sections 35 and 54 of the NDPS Act is applicable in this case against the
accused, as the recovery of contraband has been established beyond reasonable
doubt. The accused failed to rebut this presumption, leading to the conclusion
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STATE Vs. IQBAL HUSSAIN
FIR No. 82/2016
(Crime Branch)
U/s 21 NDPS Act
that he was knowingly and deliberately in possession of intermediate quantity of
heroin. According to the presumption under Section 54 of the NDPS Act, since
the accused was found in possession of intermediate quantity of heroin, he has
committed an offence punishable under Section 21 of the NDPS Act.
Conclusion
98. The prosecution proved beyond reasonable doubt that accused
Iqbal Hussain was in possession of intermediate quantity of heroin as 200 gms of
heroin was recovered from his possession. In view of the presumption under
Sections 35 and 54 NDPS Act, it is presumed that accused Iqbal Hussain had the
requisite mental state (mens rea) to commit the offence of being in possession of
narcotic drug/ heroin without any authority or license to be in possession of the
same.
Order
99. Accordingly, accused Iqbal Hussain is convicted for the offence
punishable under Section 21(b) of the NDPS Act qua possession of 200 gms of
heroin. Copy of the judgment be supplied to accused free of cost.
Digitally
GAJENDER signed by
Announced in the open Court SINGH GAJENDER
SINGH
on 18th February, 2026 NAGAR
NAGAR
(Gajender Singh Nagar)
Special Judge (NDPS Act)
District Shahdara
Karkardooma Courts, Delhi
