Delhi District Court
State vs Shakeel Ahmed on 17 April, 2026
DLSH010039462022 Page 1 of 63 SC No. 205/2022 STATE Vs. SHAKEEL AHMED & ANR. FIR No. 307/2014 (Welcome) U/s 21 NDPS Act & 25 Arms Act IN THE COURT OF SPECIAL JUDGE (NDPS), SHAHDARA, KARKARDOOMA COURTS, DELHI SC No. 205/2022 STATE Vs. SHAKEEL AHMED & ANR. FIR No. 307/2014 (Welcome) U/s 21 NDPS Act & 25 Arms Act In the matter of :- State ...(through Ld. Addl. PP) Vs. (1) Shakeel Ahmed, S/o Sh. Mukhtar Ahmed, R/o H.No. 622, Navjeevan Samiti, Kodhi Colony, Nand Nagri, Delhi. ....accused no.1 (represented through Sh. Sanjeev Kumar, Advocate) (2) Amit Kumar, S/o Late Sh. Kalyan Singh, R/o F-2/65, Sunder Nagri, Delhi. ....accused no.2 (represented through Sh. C.M. Arif, Advocate) Date of institution : 22.07.2014 Date when Judgment reserved : 20.03.2026 Date of Judgment : 17.04.2026 Final Decision : Acquitted DLSH010039462022 Page 2 of 63 SC No. 205/2022 STATE Vs. SHAKEEL AHMED & ANR. FIR No. 307/2014 (Welcome) U/s 21 NDPS Act & 25 Arms Act JUDGMENT
CASE OF THE PROSECUTION
1. Brief facts of the present case as per charge-sheet are that accused
Shakeel Ahmed was involved in a case of attempt to murder. On 29.05.2014 at
about 6:00 pm a secret information qua him was received in the office of
Special Staff. Thereafter, a raiding team was constituted under the leadership of
SI Arun Sindhu. They left the office in two vehicles, reached the spot,
apprehended the accused persons from their flat/ floor situated at H.No. 10236
AB, 4th Floor, Gali No.1, West Gorakh Park, Shahdara, Delhi. From cursory
search of the accused persons one desi katta (country made pistol) each with
live cartridges were recovered from them. During cursory search of accused
Shakeel Ahmed, a plastic transparent polythene containing a light blue colour
polythene containing 40 grams (with polythene) of heroin/ smack (white colour
powdery substance) was recovered from the right side pocket of his wearing
pant. On the basis of these facts, the present FIR was registered U/s 21/61/85
NDPS Act & 25/54/59 Arms Act. The accused persons were arrested. The
recovered kattas alongwith live cartridges as well as contraband were seized,
sample of the contraband was taken, pullandas were prepared. The pullandas
were sealed and FSL forms were filled at the spot. FSL report dated 31.07.2014
has been received wherein it is mentioned that the country made pistols are
firearm/ ammunition as defined in the Arms Act, 1959. FSL report dated
27.06.2014 has been received wherein it is mentioned that the parcels are
containing Diacetylmorphine, 6-monoacetylmorphine and Acetyl Codeine. It is
further mentioned that Ex. S-1 was found to contain Diacetylmorphine 64.8%.
DLSH010039462022 Page 3 of 63
SC No. 205/2022
STATE Vs. SHAKEEL AHMED & ANR.
FIR No. 307/2014
(Welcome)
U/s 21 NDPS Act & 25 Arms Act
INVESTIGATION & OTHER PROCEEDINGS
2. Upon completion of investigation, on 22.07.2014 charge-sheet was
filed against accused persons namely Shakeel Ahmed and Amit Kumar U/s
21/61/85 NDPS Act & 25/54/59 Arms Act.
CHARGE
3. Vide order on charge dated 14.05.2015, charges U/s 21 NDPS Act
& 25 Arms Act were framed against accused Shakeel Ahmed and charge U/s 25
Arms Act was framed against accused Amit Kumar.
PROSECUTION EVIDENCE
4. To substantiate the aforementioned charge, the prosecution
presented 18 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 ASI Member of Ex. PW-1/A Sketch of recovered pistol, magazine and
Parveen raiding party cartridges.
Kumar and one of the Ex. PW-1/B Seizure memo of recovered two live
recovery cartridges alongwith recovered pistol.
witness. Seal
after use was Ex. PW-1/C Seizure memo of Mark S1 (sample taken
handed over to out from recovered contraband) and Mark 1
him. (remaining contraband).
Ex. PW-1/D Sketch of katta recovered from accused
Amit Kumar and one live cartridge.
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(Welcome)
U/s 21 NDPS Act & 25 Arms Act
Ex. PW-1/E Seizure memo of katta recovered from
accused Amit Kumar and live cartridge.
Ex. P-1 & Ex. One pistol and one fired cartridge, received
P-2 after FSL examination in an envelope Ex.
F1.
Ex. P-3 & Ex. One pistol and two fired cartridges,
P-4 received in an envelope.
Ex. P-5 Sample taken out from the recovered
smack/ contraband.
PW-2 ASI MHC(M), P.S. Ex. PW-2/A Entries in the register no.19 at serial no.
Bharat Welcome. 2051, 2053 and 2054 qua depositing three
Singh pullandas in the maalkhana.
Ex. PW-2/B Entry in the register no.19 at serial no. 2052
qua depositing of notice U/s 50 NDPS Act
in the maalkhana.
Ex. PW-2/C Entry in the register no.19 at serial no. 2055
qua depositing of personal search memos of
accused persons in the maalkhana.
Ex. PW-2/D & Entries in the register no.19 at serial no.
Ex. PW-2/E 2057 and 2058 qua depositing of Rs.
53,000/- cash and one motorcycle Apache
in the maalkhana.
Ex. PW-2/X RC No. 67/21/14 qua sending of Rs. 53,000/- cash to P.S. Model Town. Ex. PW-2/F RC No. 54/21/14 qua sending of one pullanda to FSL, Rohini. Ex. PW-2/G RC No. 55/21/14 qua sending of two pullandas to FSL, Rohini. PW-3 SI 1st IO, received Ex. PW-3/A Notice U/s 50 NDPS Act addressed to Arun Sindhu secret accused Shakeel. information, Ex. PW-3/B Rukka. made information and Ex. PW-3/C Site plan. departure entry no.9, member of raiding party who DLSH010039462022 Page 5 of 63 SC No. 205/2022 STATE Vs. SHAKEEL AHMED & ANR. FIR No. 307/2014 (Welcome) U/s 21 NDPS Act & 25 Arms Act apprehended the accused persons, served notice U/s 50 NDPS Act on the accused Shakeel Ahmed, recovered contraband and country made pistols alongwith live cartridges, drawn sample of contraband, sealed and seized the case property, prepared requisite sketches, filled FSL form and prepared rukka. PW-4 SI Presently posted Ex. PW-4/1 Copy of diary entry no. 1882 dated Pramod as SO to ACP, (OSR). 30.05.2014 qua compliance report U/s 57 Kumar Shahdara, Delhi. NDPS Act. Ex. PW-4/2 Copy of request letter no. (OSR). 367/HAR/Shahdara District dated 14.01.2020 regarding destruction of old record of the ACP Sub-Div/Shahdara. PW-5 SI Member of Ex. P-6 Substance in black solid form received after Manoj raiding party FSL examination. Kumar and one of the recovery witness. PW-6 HC Member of Saleem raiding party Khan and one of the recovery witness. DLSH010039462022 Page 6 of 63 SC No. 205/2022 STATE Vs. SHAKEEL AHMED & ANR. FIR No. 307/2014 (Welcome) U/s 21 NDPS Act & 25 Arms Act PW-7 ASI He obtained three sealed parcels from Bijender MHC(M) vide RC No. 54/21/14 and Kumar deposited the same at FSL Rohini. PW-8 SI Member of Mark-8A Copy of entry in the log book regarding Nazir raiding party. movement of vehicle, which is highlighted Hussain with green colour. PW-9 ACP Inspector Mark PW-9/A Copy of report U/s 57 NDPS Act prepared Manmohan Investigation as by SI Faizan Ghani, which was forwarded Kumar SHO was on by him to ACP. leave. He conducted proceedings U/s 55 NDPS Act. Separate proceedings were conducted qua one country made pistol recovered from accused Amit Kumar. He had lodged DD No. 32A qua the fact that the case property was counter-sealed by him with the seal of MMK. PW-10 HC Accompanied Ex. PW-10/A Arrest memos of accused persons. Satish 2 IO SI Faizan and Ex. PW- nd Ghani and Ct. 10/B
Purshottam at Ex. PW-10/C Personal search memos of accused persons.
the spot. and Ex. PW-
Witness of 10/D
arrest and
personal search Mark PW-10/1 Disclosure statements of accused persons.
of accused and Mark PW-
persons. 10/2
Thereafter, he Ex. PW-10/E Site plan of spot of recovery (i.e. H.No. 622
again or 620), Kothi Colony, Nand Nagri, Delhi.
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(Welcome)
U/s 21 NDPS Act & 25 Arms Act
accompanied to PW-10/F Seizure memo of currency notes.
SI Faizan Ghani Ex. PW-10/G Seizure memo of motorcycle.
and Ct. Deepak
to the house of Ex. PW-10/P-1 Property/ articles i.e. Sonata watch, two
accused Shakeel (Colly) Samsung mobiles, one wallet and three
Ahmed from pages of photocopy of currency notes,
where cash and recovered from accused Amit Kumar in his
motorcycle was personal search.
recovered.
PW-11 Ct. Accompanied to
(now HC) SI Faizan Ghani
Deepak and HC Satish
to the house of
accused Shakeel
Ahmed from
where cash and
motorcycle was
recovered.
PW-12 HC MHC(M), P.S. Ex. PW-12/A Copy of DD No. 32A.
Jitender Welcome. (OSR)
PW-13 Dr. Expert witness Ex. PW-13/A His detailed report bearing no. FSL.2014/C-
Lingaraj from FSL. (running into 3929 dated 27.06.2014.
Sahoo, two pages) Assistant Director, Chemistry. PW-14 Ct. Accompanied (now HC) 2nd IO SI Faizan Purshottam Ghani and HC Satish at the spot. Witness of arrest and personal search of accused persons. PW-15 SI 2nd IO who (now arrested accused Inspector) persons, Mohd. conducted DLSH010039462022 Page 8 of 63 SC No. 205/2022 STATE Vs. SHAKEEL AHMED & ANR. FIR No. 307/2014 (Welcome) U/s 21 NDPS Act & 25 Arms Act Faizan personal search Ghani. of accused persons wherein original notice U/s 50 NDPS Act was recovered from personal search of accused Shakeel Ahmed, prepared site plan at the instance of SI Arun Sindhu, recorded disclosure statements of accused persons, submitted his report U/s 57 NDPS Act and submitted the same for onward transmissions to the senior officers. He prepared seizure memos qua one motorcycle and some cash got recovered by accused Shakeel during PC remand. He sent exhibits to FSL for analyses. He submitted the charge-sheet for trial. He obtained DLSH010039462022 Page 9 of 63 SC No. 205/2022 STATE Vs. SHAKEEL AHMED & ANR. FIR No. 307/2014 (Welcome) U/s 21 NDPS Act & 25 Arms Act sanction U/s 39 Arms Act from Addl. DCP, North-East; prepared supplementary charge-sheet and filed the same before the Court. PW-16 Ms. ACP, Sub- Urvija Goel, Division, Director, Shahdara on the MHA date of incident.
PW-17 Dr. Expert witness Ex. PW-17/A His detailed report bearing no. FSL.2014/F-
V.R. Anand, from FSL. (running into 3928 dated 31.07.2014.
Assistant two pages) Director (Ballistics). PW-18 Sh. Accorded Ex. PW-18/A Sanction order U/s 39 Arms Act. Rajender sanction U/s 39 Singh Sagar, Arms Act for Addl. DCP, prosecution of North-East the accused District. persons. Admitted documents U/s Ex. AD-1 FIR No. 307/2014, P.S. Welcome, 330 BNSS / 294 registered by ASI Yasin Khan. Cr.P.C.
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 ASI Parveen Kumar deposed that on 29.05.2014 he was
posted at Special Staff East District as HC. On that day at about 6:00 pm SI
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FIR No. 307/2014
(Welcome)
U/s 21 NDPS Act & 25 Arms Act
Arun received information regarding accused Shakeel wanted in FIR No.
256/14, P.S. Jagatpuri that he was residing in a flat near West Gorakhpark,
Shahdara. Thereafter, SI Arun formed raiding party including this witness, SI
Vinay Yadav, SI K.K. Sharma, SI P.S. Rawat, HC Manoj, HC Satish, HC Nazir,
Ct. Saleem, Ct. Anangpal, Ct. Arvind and Ct. Shyam and secret informer in a
government and a private vehicle and made a departure DD No. 9 and went to
the spot at about 6:50 pm i.e. 1/10236, AB, Gali No. 1, West Gorakhpark,
Shahdara. Secret informer told them that accused Shakeel was present on the
top floor of that house. Thereafter, IO asked 4-5 public persons to join the
investigation, but none agreed and left the spot without disclosing their names
and addresses. Thereafter, IO tried to contact residents of first floor and second
floor, but residents of the above-said floors did not open the gate. Thereafter, IO
alongwith raiding party went to the top floor and knocked the door of the room,
door of the room was opened by the accused, accused Shakeel was found
alongwith his associate Amit, both the accused persons resisted their
apprehension, but both of them were overpowered and apprehended. On the
personal search of accused Amit one country made pistol ( katta) was found
from the right dub and on the personal search of accused Shakeel one pistol was
recovered from the right dub and one plastic panni was also found from the
right pocket of his pant, same was checked and it was found that it contains
white powder appears to be smack. Upon inquiry from accused Shakeel
regarding the recovery of white powder accused Shakeel admitted that the white
powder was smack. Thereafter, IO gave notice U/s 50 NDPS Act to accused
Shakeel to carry out the search of police officials before his personal search.
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(Welcome)
U/s 21 NDPS Act & 25 Arms Act
Accused Shakeel received the notice and in writing replied that he does not
want to be personally searched in the presence of Magistrate or any Gazetted
Officer. Thereafter, IO checked the magazine of recovered pistol, from which
two live cartridges were recovered. Thereafter, IO prepared the sketches of
pistol, magazine and recovered cartridges, same are Ex. PW-1/A bearing
signature of this witness at Point-A. Recovered two live cartridges put in a
white paper and same was seized with recovered pistol sealed in white pullanda
vide seizure memo Ex. PW-1/B bearing his signature at Point-A and FSL form
of the recovered pistol was filled. Recovered smack was weighed on a weighing
scale with panni and total weight came to be 40 gms. Out of which 05 gms were
taken out as a sample and same was put in a white plastic panni kept in a white
paper to prepare its pullanda, same was sealed with the seal of MK and same
was marked as S-1, remaining smack was also put in a rumal and same was
sealed with the seal of MK and marked as 1 and FSL form regarding the same
was filled. Mark S1 and Mark 1 both were seized vide seizure memo Ex. PW-
1/C bearing signature of this witness at Point-A. Thereafter, katta recovered
from accused Amit was checked and one live cartridge was also recovered from
it. Sketch of the same was prepared which is Ex. PW-1/D bearing signature of
this witness at Point-A. Thereafter, live cartridge was put in a white paper and
same was seized with the katta in a white pullanda and sealed with the seal of
MK. FSL form was also filled and seizure memo of katta and live cartridge was
prepared which is Ex. PW-1/E bearing signature of this witness at Point-A and
after use seal was handed over to this witness. Thereafter, IO prepared the rukka
and same was given to Ct. Saleem alongwith recovered case property, seizure
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(Welcome)
U/s 21 NDPS Act & 25 Arms Act
memos and FSL forms, for the registration of FIR and to deposit the same in the
maalkhana of Police Station. Thereafter, SI Faizan Gani alongwith Ct.
Purshottam and Satish came at the spot and IO SI Arun briefed SI Faizan Gani
about the present case and SI Faizan Gani prepared the site plan at the instance
of SI Arun. Meanwhile, Ct. Saleem came at the spot alongwith copy of FIR and
original rukka and handed over the same to SI Faizan Gani. Thereafter, SI
Faizan Gani recorded statement of this witness and other witnesses and they left
the spot. This witness correctly identified accused Shakeel Ahmed.
MHC(M) has produced one yellow colour envelope sealed with
seal of FSL with case particulars of one envelope which is Ex. F1. On the order
of Court one envelope with particulars Ex. F1 opened and on the opening of
envelope one pistol and one fired cartridge were taken out. The same were
shown to the witness who correctly identified the same. The same are Ex. P1
and P2, respectively.
MHC(M) also produced another sophisticated pistol wrapped in
one yellow colour envelope sealed with seal of ASJ with case particulars of one
yellow envelope. On the order of Court one envelope with particulars opened
and on the opening of envelope one pistol and two fired cartridges were taken
out and shown to the witness who correctly identified the same, the same are
Ex. P3 and P4 (for two fire cartridges), respectively.
MHC(M) has also produced one white pullanda wrapped in white
cloth sealed with the seal of MK and the same was opened with the permission
of Court. White plastic taken out from the white cloth and smack
(diacetylmorphine) was shown the witness and witness correctly identified the
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U/s 21 NDPS Act & 25 Arms Act
same. The same is Ex. P5.
During his cross-examination on behalf of accused Shakeel
Ahmed, it is stated by him that they left their office for raid at 6:25 pm. It is
stated by him that the private vehicle was Maruti Swift of silver colour, though
he could not tell its registration number. It is stated by him that the government
vehicle was Toyota Qualis. It is stated by him that SI Vinay Yadav, SI K.K.
Sharma, SI Arun Sindhu, SI P.S. Rawat and HC Manoj were in private car and
the other members of raiding team and secret informer were in government
vehicle. It is stated by him that the private car was being driven by SI Vinay
Yadav and the government vehicle was being driven by HC Nazir Hussain. It is
stated by him that the IO got departure entry DD No. 9 lodged. It is stated by
him that IO did not give notice to 4-5 public persons whom he had asked to join
the investigation at the spot. It is stated by him that there were residential
houses near the spot. It is stated by him that IO had knocked at the doors of first
and second floors of the house where the raid has to be conducted. It is stated by
him that all the members of raiding team, except secret informer and HC Nazir
Hussain, went to the top floor of the house. It is stated by him that secret
informer after informing and pointing out the house of accused had left the spot.
It is stated by him that the vehicles were parked 20 meters away from the house
of accused. It is stated by him that all the written proceedings were done in the
room itself on the third floor. It is stated by him that seal after use was handed
over by the IO to this witness and this witness returned the said seal after about
ten days, but neither any memo, nor his statement in this regard was recorded. It
is stated by him that the initials of the seal were M.K. He could not tell as to
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(Welcome)
U/s 21 NDPS Act & 25 Arms Act
whom the said seal of M.K. belonged, but the same was with IO SI Arun
Sindhu. It is stated by him that the rukka was taken by Ct. Salim at about 10:45
pm. It is stated by him that Ct. Salim returned back at the spot after about one
hour ten minutes. It is stated by him that during the said period, SI Faizan Gani
alongwith two Constables came at the spot at about 11:05-11:10 pm.
6. PW-2 ASI Bharat Singh deposed that on 29.05.2014 he was posted
at P.S. Welcome as MHC(M). On that day, he received three pullandas from the
IO SI Faizan Gani and same was deposited in the maalkhana vide entry no.
2051, 2053 and 2054 and same is Ex. PW-2/A. This witness also received one
notice U/s 50 NDPS Act and same was deposited in the maalkhana vide entry
no. 2052, which is Ex. PW-2/B. On 30.05.2014 SI Faizan Gani handed over to
this witness personal search memo of accused Shakeel Ahmed and Amit, same
was deposited in the maalkhana vide entry no. 2055, same is Ex. PW-2/C. On
31.05.2014 SI Faizan Gani handed over to this witness Rs. 53,000/- cash and
one motorcycle Apache bearing registration No. DL 5S AH 7914, same were
deposited in the maalkhana vide entry no. 2057, same is Ex. PW-2/D and entry
no. 2058, same is Ex. PW-2/E, respectively. Rs. 53000/- cash were sent to P.S.
Model Town vide RC No. 67/21/14 dated 15.07.2014, same is Ex. PW-2/X. On
02.06.2014 one pullanda was sent to the FSL Rohini through Ct. Bijender vide
RC No. 54/21/14 dated 02.06.2014, same is Ex. PW-2/F, entry of the same is
2054 dated 02.06.2014. Two pullandas were also sent to the FSL Rohini
through Ct. Bijender vide RC No. 55/21/14 dated 02.06.2014, same is Ex. PW-
2/G and entry of the same is 2055.
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(Welcome)
U/s 21 NDPS Act & 25 Arms Act
This witness has brought the register no. 19 and photocopies of the
same.
7. PW-3 SI Arun Sindhu deposed that on 29.05.2014 he was posted at
Spl. Staff, East District as SI. On that day at about 6:00 pm he received
information regarding accused Shakeel who was wanted in FIR No. 256/14,
P.S. Jagat Puri that he was residing in a flat near West Gorakh Park, Shahdara.
Thereafter, this witness formed a raiding party including SI Vinay Yadav, SI
K.K. Sharma, SI P.S. Rawat, HC Manoj, HC Satish, HC Praveen, HC Jogender,
HC Nazim, Ct. Anang Pal, Ct. Salim, Ct. Shyam, Ct. Arvind Malik and
informer. Thereafter, this witness made information and departure entry no. 9 at
about 6:25 pm and then, they reached the spot.
He deposed on the same lines as deposed by PW-1 SI Parveen
Kumar.
This witness gave the notice U/s 50 NDPS Act which is Ex. PW-
3/A bearing his signature at Point-A to accused Shakeel to carried out search of
police officials before his personal search.
This witness prepared rukka which is Ex. PW-3/B bearing his
signature at Point-A and same was handed over to Ct. Salim alongwith the case
property, seizure memo, FSL form, tehrir for registration of FIR and deposit the
same in maalkhana in Police Station. Thereafter, SI Faizan Gani came at the
spot alongwith Ct. Purshottam and Ct. Satish and this witness told the facts of
the present case to him and this witness handed over sketch memos, seizure
memos, notice U/s 50 NDPS Act to him (SI Faizan Gani). Then SI Faizan Gani
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U/s 21 NDPS Act & 25 Arms Act
prepared the site plan at instance of this witness, which is Ex. PW-3/C bearing
his signature at Point-A. Thereafter, SI Faizan Gani recorded supplementary
statement of this witness and then this witness left the spot.
This witness correctly identified the case property which was
earlier produced during testimony of PW-1 SI Praveen Kumar.
This witness correctly identified both the accused persons.
During his cross-examination on behalf of accused persons, it is
stated by him that the vehicles were parked at about 20-50 meters from the
building. It is stated by him that the seal which he used was of MK, which
belongs to HC Manoj Kumar, who was also member of raiding team and it is he
who must have received back the seal from HC Parveen. It is stated by him that
HC Parveen did not return that seal to him (this witness). It is stated by him that
he had taken the seal from HC Manoj Kumar to seal the case property at the
spot. It is stated by him that he had not mentioned in the rukka or seizure memo
that he had taken the seal of MK from HC Manoj Kumar on that day itself. It is
stated by him that he did not ask every member of the raiding team as to
whether who was carrying seal or not. It is stated by him that he had not
prepared any separate memo regarding having the seal of MK from HC Manoj
Kumar.
8. PW-4 SI Pramod Kumar has brought the compliance report U/s 57
NDPS Act from the office record vide diary no. 1882 dated 30.05.2014. The
same is Ex. PW-4/1 (OSR). A request regarding destruction of old record of the
ACP Sub-Div/Shahdara was made vide letter no. 367/HAR/Shahdara Distt.
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U/s 21 NDPS Act & 25 Arms Act
dated 14.01.2020. Accordingly, on 27.10.2020 record has been destroyed vide
order no. 5135-6203/HAR/Shahdara Distt. The copy of the same is Ex. PW-4/2
(Colly) (OSR).
9. PW-5 SI Manoj Kumar deposed that on 29.05.2014 he was posted
as HC at Special Staff East. His duty hours were from 9:00 am to late hours.
The duty of the Special Staff Team was to deal with the heinous offences
registered in any Police Station on the direction of the DCP concerned and to
assist them in the investigation. A case was registered U/s 186/353/307 IPC at
P.S. Jagatpuri in the year 2014 itself. This witness does not remember the FIR
number of the said case. SI P.S. Rawat and other staff from P.S. Jagatpuri came
to the office of the Special Staff with regard to the above-said case on the day
itself.
It is stated by him that on 29.05.2014 secret informer came to SI
Arun Sandhu and informed that the wanted accused persons of the above-said
case registered at P.S. Jagatpuri were residing on the top floor of a house
situated at West Gorakh Park, Shahdara. He failed to remember the house
number. Senior officers were informed by SI Arun Sandhu and on their
directions SI Sandhu proceeded with the investigation. Thereafter, a raiding
team was constituted by SI Sandhu including this witness, SI Vinay Yadav, SI
K.K. Sharma, SI P.S. Rawat, HC Joginder Dhaka, HC Praveen, Ct. Shyam
Singh, some other police persons and informer. The raiding team proceeded
towards informed place in two vehicles, one was govt. vehicle and other was
private vehicle. On reaching the house situated at West Gorakh Park, Shahdara
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U/s 21 NDPS Act & 25 Arms Act
secret informer pointed out towards the top floor of the said house and stated
that the said two wanted accused persons were residing on the top floor of the
said house and left from there. SI Arun Sandhu asked some public persons to
join the investigation and also apprised about the secret information, but none of
them agreed to join the investigation. The structure of the house was flat
system, but the building has the common staircase for every floor. They reached
the top floor and pushed the door of the house. The house was opened by two
boys who were apprehended/ controlled by using some force. On inquiry they
disclosed their names as Shakeel and Amit S/o Kalyan Singh. (This witness
correctly identified the accused persons).
It is stated by him that on a cursory search one country made pistol
was found from the left side (dub) of accused Shakeel and on further search
from his right side pocket of the wearing pant one blue colour polythene was
recovered in which there was some powdery substance wrapped in a paper. SI
Sandhu inquired about the said powdery substance from accused Shakeel on
which he said that the same was smack. Thereafter, SI Sandhu served notice U/s
50 NDPS Act to accused Shakeel. The accused Shakeel was informed about his
legal right that if he wishes the Gazetted Officer or Magistrate can be called
upon the spot in whose presence his further search can be carried out and he
was also told that he can take the search of raiding team prior to his search, but
he refused to exercise the said right and made his refusal in his own
handwriting. The carbon copy of the notice U/s 50 NDPS Act is already Ex.
PW-3/A. The denial of the accused Shakeel is already marked ‘X to X1’.
Accused put his signatures at Points B and B1, respectively on the said notice.
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U/s 21 NDPS Act & 25 Arms Act
It is stated by him that SI Sandhu weighed the said powdery
substance with a weighing machine which was available in the IO kit and found
the substance to be 40 grams.
It is stated by him that IO took out one sample of 05 grams from
the recovered contraband. The remaining contraband i.e. 35 grams was kept in
the plastic jar and wrapped with white cloth and converted into pullanda and
was sealed with the seal of MK by giving Mark-1. The sample was also kept in
plastic jar and also sealed with the seal of MK by giving Mark S1. IO seized the
pullandas vide seizure memo already Ex. PW-1/C. IO Sandhu checked the
recovered loaded pistol and took out the magazine from it wherein two live
cartridges were loaded. Live cartridges were taken out from the magazine.
Rough sketch of the recovered pistol, live cartridge and magazine were prepared
by the IO, same is already Ex. PW-1/A which bears signature of this witness at
Point-C. The same were also seized and converted into pullanda and wrapped
with white cloth and thereafter sealed with the seal of MK. The seizure memo is
already Ex. PW-1/B which bears signature of this witness at Point-C.
It is stated by him that accused Amit was apprehended by the other
members of the raiding team. He was also searched by one of the members of
the raiding team and in his search one loaded desi katta was found from his left
side dub. The same was unloaded by SI Sandhu and one live cartridge was
found. The rough sketch of the same was prepared which is already Ex. PW-1/D
which bears signature of this witness at Point-C. The same were seized and
converted into white pullanda and same was sealed with the seal of MK. The
seizure memo was prepared which is already Ex. PW-1/E which bears signature
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of this witness at Point-C.
Thereafter, IO Sandhu prepared the rukka already Ex. PW-3/B. IO
handed over the original rukka to one of the member of the raiding team. IO
also prepared other documents and filled some form and handed over the same
to the said member. After some time one SI Khan alongwith other staff came on
the spot. They handed over both the apprehended accused persons to SI Khan.
Statement of this witness was recorded by the second IO SI Khan at
the spot itself and discharged him from there.
MHC(M) produced one yellow envelope having Mark S1 and
details of the present case having the seal of FSL LRS DELHI. The seal was
duly intact and the same was opened with the permission of the Court. One
cloth pullanda having the seal of MK and wrapped in a white paper. Substance
was taken out and same was in black solid form. The sample is Ex. P-6.
Other case property was also produced in his evidence.
During his cross-examination on behalf of accused Shakeel
Ahmed, it is stated by him that he was seated in Toyota Qualis which was being
driven by police official Saleem, but he could not tell which other police official
was seated in which vehicle. He could not tell who was driving the other private
vehicle and how many police officials were seated in the said vehicle. He could
not even tell the colour of the private vehicle. It is stated by him that they
parked the vehicle at a distance of 150-200 meters from the said house at West
Gorakh Park. It is stated by him that the seal of MK belonged to him. It is stated
by him that after use seal was handed over to HC Parveen and this witness had
received the seal after 1-2 days later. He could not tell how many storyed the
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said building was from where the accused persons were apprehended.
10. PW-6 HC Saleem Khan deposed that on 29.05.2014, he was posted
at Special Staff, East District as Constable. On that day, he was present in the
office of Special Staff, East District and at around 6:05 pm SI Arun Sandhu
called a meeting in his room. The meeting was attended by this witness, SI K.K.
Sharma, HC Praveen, Ct. Shayam Singh, HC Nazim Mohd. and 3-4 more police
officials whose names this witness does not remember at this stage.
In the meeting, SI Arun Sandhu informed to the members of the
meeting that a case FIR No. 256/2014, U/s 307/153/186 IPC, P.S. Jagat Puri
was registered. The said case was registered in some other Sections also, which
this witness does not remember at this stage. SI Arun Sandhu further informed
that in regard of the said case secret informer also came to him in the office of
Special Staff, East District who told him that the accused who is wanted
namely, Shakeel in the said case is residing at West Gorakh Park within the
jurisdiction of P.S. Welcome.
It is stated by him that after the meeting, SI Arun Sandhu informed
the Inspector Rakesh Dixit (who was present in the office) personally in his
room. Inspector Rakesh Dixit directed to conduct the raid, accordingly, raiding
team was constituted by SI Sandhu consisting of all the members of the
meeting.
At this stage, witness also submits that meeting was also attended
by SI Vinay Yadav.
Thereafter, they all left for the spot i.e. West Gorakh Park,
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Shahdara from office of Special Staff East in two vehicles, one was government
vehicle which was driven by this witness and another was private vehicle which
belongs to SI K.K. Sharma.
It is stated by him that when the raiding team reached West Gorakh
Park, Shahdara at Gali No.1, secret informer pointed out towards the top floor
of the house bearing no. 10236 and stated that this is the house where accused
Shakeel is residing.
Thereafter, this witness alongwith 1-2 police officials stayed in the
gali and other police officials went on the top floor. Within few minutes, this
witness was also called by SI Sandhu on the top floor by a signal. The door of
the room was knocked by SI Sandhu upon which the same was opened by
Shakeel (correctly identified by this witness).
It is stated by him that when they entered into the room, accused
Amit (correctly identified by this witness) was also present in the said room.
Both the accused persons tried to run away, but were controlled and
apprehended by the police team.
It is stated by him that SI Sandhu conducted a search of accused
Amit and one desi katta was recovered from the right side of the dub of the
pant. The said katta was checked by SI Sandhu and found containing one live
cartridge.
On search of accused Shakeel, one country made pistol and two
live cartridges were recovered from the pocket of his pant. One transparent
polythene pouch containing light blue colour powder like substance which
appeared to be smack was also recovered from the pocket of pant of accused
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U/s 21 NDPS Act & 25 Arms Act
Shakeel. SI Arun Sandhu issued a notice U/s 50 NDPS Act to the accused and
accused has replied on the copy of the same that he does not want to get himself
searched in presence of a Gazetted Officer. SI Arun Sandhu weighed the
polythene pouch containing the contraband, which was found to be 40 grams. SI
Arun Sandhu took a sample of 05 grams from the recovered contraband,
prepared cloth pullanda, which was marked as S1. He kept the polythene
containing remaining contraband into other cloth pullanda which was marked as
Mark 1. Both the parcels were sealed with the seal of MK and FSL form was
filled. He prepared seizure memo of the same. After preparing separate sketches
of the respective country made pistols and cartridges and prepared separate
seizure memos of the same. Thereafter, SI Arun Sandhu prepared the rukka and
handed over the original rukka to this witness. SI Arun Sandhu also handed over
the carbon copy of seizure memo, FSL form and the sealed parcels to this
witness with the direction to hand over the rukka to the DO and the remaining
things to SHO for proceedings U/s 55 NDPS Act. Thereafter, this witness left
the spot, went to P.S. Welcome, where he handed over the rukka to the Duty
Officer and remaining things to SHO Inspector Manmohan.
It is stated by him that after registration of FIR, he obtained the
copy of FIR and original rukka from Duty Officer, reached the spot and handed
over the same to SI Mohd. Faizan Gani. SI Mohd. Faizan Gani prepared site
plan at the instance of SI Arun Sandhu.
It is stated by him that both the accused persons were arrested.
It was observed that the case properties have already been exhibited
during the testimony of earlier witnesses. The Ld. Defence Counsel does not
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oppose the same. Hence, the production of the case property was dispensed
with.
During his cross-examination on behalf of accused persons, it is
stated by him that HC Nazir was driving Qualis car when they left their office
and on their way this witness exchanged the driver seat with HC Nazir at
Maujpur Chowk. It is stated by him that he left the spot alongwith rukka at
about 10:45-10:50 pm in the government Qualis car and returned to the spot
alongwith copy of FIR and original rukka at about 11:50 pm. It is stated by him
that he finally left the spot in the same government Qualis car which was driven
by him, however he could not tell who other persons were sitting in the
government Qualis car or in Swift Dzire car. It is admitted by him that the
seizure proceedings were neither photographed or videographed.
11. PW-7 ASI Bijender Kumar deposed that on 02.06.2014 he was
posted at P.S. Welcome. On that day on the direction of SHO, he obtained three
sealed parcels from MHC(M) vide RC No. 54/21/14 and deposited the same at
FSL Rohini. After depositing it, he came back to the Police Station and
deposited the acknowledgment of FSL with MHC(M).
It is stated by him that till the time the case property was in his
possession, it has not been tampered with.
12. PW-8 SI Nazir Hussain deposed that on 29.05.2014 he was posted
at Special Staff, East District as HC situated at CBD ground. On that day on
receiving secret information, a raiding team was constituted comprising of SI
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U/s 21 NDPS Act & 25 Arms Act
Arun Sandhu, SI K.K. Sharma, SI Vinay Yadav, SI P.S. Rawat of P.S.
Jagatpuri, HC Manoj, HC Praveen, this witness and other police officials. They
left their office in government vehicle bearing no. DL 1CH 7984 and one
private car at about 6:30 pm alongwith secret informer. This witness was
driving the government vehicle. At about 6:50 pm they reached one house,
number of which this witness does not remember at Gali No.1, West Gorakh
Park, Shahdara. Secret informer pointed out towards the top floor and told that
the wanted criminal namely Shakeel will be found there. SI Arun Sandhu
alongwith other staff of raiding team went upstairs. This witness remained
seated in the government vehicle. At about 11:30 pm – 12:00 midnight the
raiding team members came down and this witness alongwith them came back
at their office. This witness made entry in the log book regarding movement of
the vehicle. The vehicle moved for about 8-10 kilometers, but this witness failed
to remember exactly. The copy of entry in the log book which is highlighted
with green colour is Mark 8A.
During his cross-examination on behalf of accused persons, he
could not tell the colour and registration number of private vehicle, however it
is stated by him that it was of Maruti make. He could not tell who was driving
the Maruti car. It is stated by him that as far as he remember SI Arun Sindhu,
secret informer, HC Manoj and other raiding team members were seated in the
vehicle which was driven by him.
13. PW-9 ACP Manmohan Kumar deposed that on 29.05.2014, he was
posted at P.S. Welcome as Inspector Investigation as the SHO was on leave on
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that day. At about 8:30-9:00 pm, Ct. Salim came to office of this witness and
handed over to him two sealed pullandas duly sealed with the seal of ‘MK’
alongwith FSL form with the seal of MK and carbon copy of seizure memo.
This witness affixed his seal on the said pullandas with his seal of MMK and
affixed his sample seal MMK on FSL form. After confirming the FIR number
from the Duty Officer, this witness wrote the same on the said pullandas, FSL
form and copy of seizure memo. This witness also signed on the said pullandas,
FSL form and copy of seizure memo.
This witness then called the MHC(M) CP alongwith register no.19
in his office and MHC(M) has made entry of all the details in the register no.19
and this witness handed over case property and all documents to MHC(M) CP.
The relevant entry in register no.19 are already Ex. PW-2/A and Ex. PW-2/B.
It is stated by him that one country made pistol was recovered from
Amit for which separate proceedings were conducted.
It is stated by him that on 30.05.2014 he forwarded the report U/s
57 NDPS Act prepared by SI Faizan Ghani to the ACP, copy of which is Mark
PW-9/A which bears signature of this witness at Point-A.
It is stated by him that he had lodged DD No. 32A dated
29.05.2014 with respect to the fact that the case property was counter-sealed by
him with the seal of MMK. The same is already Ex. PW-12/A.
During his cross-examination on behalf of accused persons, it is
stated by him that Ct. Saleem came to him at about 8:30-9:00 pm and remained
with him for about 20-25 minutes.
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14. PW-10 HC Satish deposed that on 29.05.2014 he was posted at P.S.
Welcome as Constable. On that day he alongwith Ct. Purshottam and SI Faizan
Ghani reached at H.No. 10236/AB, Fourth Floor, Gali no.1, West Gorakhpark,
Delhi and met SI Arun who was having two accused persons in his custody.
There were other police persons with SI Arun. SI Arun handed over both the
accused persons to IO SI Faizan Ghani. Name of those persons revealed as Amit
and Shakeel. SI Faizan Ghani handed over accused Amit to this witness and
accused Shakeel to Ct. Purshottam. SI Faizan Ghani recorded the statements of
police persons of Special Staff. SI Faizan Ghani prepared rough site plan
already Ex. PW-3/C at the instance of SI Arun. Meanwhile, Ct. Salim came to
the spot and handed over original rukka and copy of FIR to SI Faizan Ghani. SI
Arun alongwith his staff left the spot.
It is stated by him that accused persons namely Amit and Shakeel
were arrested by SI Faizan Ghani. Arrest memo of accused Amit is Ex. PW-
10/A which bears signature of this witness at Point-A. Arrest memo of accused
Shakeel is Ex. PW-10/B which bears signature of this witness at Point-A.
Accused Amit was personally searched vide personal search memo Ex. PW-
10/C and accused Shakeel was personally searched vide personal search memo
Ex. PW-10/D, both bear signature of this witness at Point-A respectively. From
the personal search of accused Amit, two Samsung mobile; Rs. 2,020/-; one
purse, one Sonata watch were recovered. From the personal search of accused
Shakeel, two Samsung mobile phones, one Micromax mobile, one purse/ wallet
and notice U/s 50 NDPS Act were recovered.
It is stated by him that information of arrest of accused Amit was
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U/s 21 NDPS Act & 25 Arms Act
given to his brother and of accused Shakeel to his wife.
They brought both the accused persons to Police Station. IO
interrogated both the accused persons. Both the accused persons made
disclosure statement to SI Faizan Ghani. Disclosure statements are Mark PW-
10/1 and PW-10/2 both bear signature of this witness at Point-A, respectively.
It is stated by him that accused persons were got medically
examined and thereafter, both the accused persons were lodged in lock-up of
P.S. Welcome.
This witness correctly identified accused Amit.
It is stated by him that on 31.05.2014 he again participated in the
investigation. He alongwith SI Faizan Ghani, Ct. Deepak and accused Shakeel
reached Seelampur Metro Station. Nothing was recovered from Seelampur
Metro Station and thereafter accused took them to New Delhi Railway Station,
but nothing was got recovered. Thereafter, they reached H.No. 622, again said
620, Kothi Colony, Nand Nagri which was the house of accused Shakeel. They
found that Apache motorcycle was parked under a tree near the house of
accused Shakeel and accused Shakeel pointed out that the said motorcycle
belonged to him and he had been using the same in commission of the crime. SI
Faizan Ghani handed over the said motorcycle to this witness.
Thereafter, accused took them inside his house and he opened an
almirah and took out Rs. 53,000/- beneath the clothes. Out of them 25 notes
were in the denomination of Rs. 1,000/- and others were in the denomination of
Rs. 5,00/-. Accused had already told them that he had snatched two gold chains
from the area of Model Town and after selling those two chains he got the
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U/s 21 NDPS Act & 25 Arms Act
above-said money. SI Faizan Ghani put the recovered currency note in a sealed
pullanda and it was duly sealed with the seal of FG. Seal after use was handed
over to this witness. SI Faizan Ghani prepared site plan of the spot of recovery
which is Ex. PW-10/E which bears signature of this witness at Point-A. Seizure
memo of currency notes is Ex. PW-10/F which bears signature of this witness at
Point-A. Seizure memo of motorcycle is Ex. PW-10/G which bears signature of
this witness at Point-A. They brought the accused and recovered case property
to Police Station. Accused Shakeel was put behind the lock-up.
One polythene containing Sonata watch, two Samsung mobiles,
one wallet and three pages of photocopy of currency notes (total amounting Rs.
2,020/-) were shown to the witness who identified the same as the property
recovered from accused Amit in his personal search. Sonata watch, two
Samsung mobiles, one wallet and three pages of photocopy of currency notes
are Ex. PW-10/P-1 (Colly).
Personal search of accused Shakeel was already taken by him.
It is stated by him that original notice U/s 50 NDPS Act issued to
accused Shakeel has already been placed on record by MHC(M) on earlier date.
15. PW-11 Ct. (now HC) Deepak deposed that on 31.05.2014 he was
posted at P.S. Welcome as Constable. On that day, he joined the investigation
with SI Mohd. Faizan Ghani. Accused Shakeel Ahmad was taken out from the
lock-up and this witness alongwith SI Mohd. Faizan Ghani and Ct. Satish left
the Police Station alongwith accused Shakeel for search of source of country
made pistol and contraband, but in vain. Thereafter, they reached house of
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U/s 21 NDPS Act & 25 Arms Act
accused Shakeel where at his instance one motorcycle make TVS Apache was
taken into possession vide seizure memo already Ex. PW-10/G which bears
signature of this witness at Point-B. Thereafter, accused led them to his house
and got recovered Rs. 53,000/- in cash stated to be obtained after selling the
gold chain snatched by him. The cash was taken into possession vide seizure
memo already Ex. PW-10/F which bears signature of this witness at Point-B. SI
Mohd. Faizan Ghani prepared site plan of recovery already Ex. PW-10/E which
bears signature of this witness at Point-B.
16. PW-12 HC Jitender deposed that he is working as MHC(M) at P.S.
Welcome. On the directions of SHO, P.S. Welcome, he has brought copy of DD
No. 32A dated 29.05.2014 made by Inspector Manmohan alongwith original
DD register. Copy was taken on record. Copy of DD No. 32A is Ex. PW-12/A
(OSR).
17. PW-13 Dr. Lingaraj Sahoo, Assistant Director Chemistry, FSL
Rohini, Delhi deposed that he is working at FSL Rohini since 2010. On
02.06.2014, he was posted as Senior Scientific Officer (Chemistry) at FSL
Rohini. On that day one sealed parcel Mark S1 sealed with the three seals of
MK and two seals of MMK in FIR No. 307/2014 dated 29.05.2014 U/s 21
NDPS Act and 25 Arms Act, P.S. Welcome alongwith specimen seals,
forwarding letter, copy of FIR, copy of seizure memo etc. were received in their
office from SHO P.S. Welcome vide letter reference no. 1524/SHO/Welcome
dated 02.06.2014. Same were marked to this witness for chemical examination.
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The seals were intact and were tallying with specimen seals.
On opening the parcel Mark S-1, it was found containing light
brown coloured powdery material stated to be smack weight approx 3.19 gms
with polythene pouch and it was marked as Ex. S-1.
It is stated by him that he analyzed the exhibits between 10.06.2014
to 27.06.2014. On chemical, TLC, GC & GC-MS examination, Ex. S-1 was
found to contain Diacetylmorphine, 6-monoacetylmorphine and Acetyl
Codeine. Ex. S-1 was found to contain 64.8% Diacetylmorphine.
After the examination the remnants of the exhibit were kept in a
parcel which was sealed with the seal of LRS FSL DELHI.
This witness prepared the detailed report bearing no. FSL.2014/C-
3929 dated 27.06.2014 which is Ex. PW-13/A (running into two pages) bearing
his signature at Points A and B.
This witness submitted his report in a sealed envelope alongwith
the sealed parcel for onward transmissions to the forwarding agency.
18. PW-14 Ct. (now HC) Purshottam deposed that on 29.05.2014 he
was posted at P.S. Welcome as Constable.
This witness deposed on the same lines qua proceedings conducted
on 29.05.2014 as deposed by PW-10 HC Satish.
19. PW-15 SI (now Inspector) Mohd. Faizan Ghani deposed that on
29.05.2014, he was posted at P.S. Welcome as SI. On that day, Duty Officer
informed this witness about the directions of SHO that the investigation of the
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case was marked to him. This witness alongwith Ct. Satish and Ct. Purshottam
reached H.No. 10/236 AB, Gali No.1, Top Floor, West Gorakh Park, Shahdara
Delhi where SI Arun Sandhu and other police staff met this witness alongwith
both the accused persons (correctly identified by this witness). SI Arun Sandhu
handed over custody of both the accused persons and the documents prepared
by him to this witness. In the meanwhile Ct. Saleem also arrived at the spot and
handed over copy of FIR and original rukka to this witness. This witness
entered the FIR number on the documents prepared by SI Arun Sandhu. He
prepared the site plan at the instance of SI Arun Sandhu which is already Ex.
PW-3/C which bears his signature at Point-B.
This witness arrested the accused persons namely Amit and
Shakeel vide arrest memos already Ex. PW-10/A and Ex. PW-10/B,
respectively which bears signatures of this witness at Point-C. This witness also
conducted personal search of the accused persons vide personal search memos
already Ex. PW-10/C and Ex. PW-10/D, respectively, which bear signature of
this witness at Point-C. Apart from other articles, original notice U/s 50 NDPS
Act was recovered from the personal search of accused Shakeel.
This witness brought both the accused persons to P.S. Welcome
where he recorded their disclosure statements already Mark PW-10/1 and PW-
10/2, respectively which bear his signatures at Point-C.
It is stated by him that the accused persons were produced before
the Court and he obtained their one day PC remand. He prepared report U/s 57
NDPS Act and submitted the same for onward transmissions to the senior
officers. The copy of report already Ex. PW-4/1 bears his signature at Point-A.
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During PC remand accused Shakeel got recovered one motorcycle and some
cash and this witness prepared seizure memos of the same which are already Ex.
PW-10/F and Ex. PW-10/G, respectively and bear his signature at Point-C and
this witness prepared site plan place of recovery already Ex. PW-10/E which
bears his signature at Point-C.
During investigation, this witness sent the exhibits to FSL for
analysis.
It is stated by him that after completion of investigation he
submitted the charge-sheet for trial.
It is stated by him that after obtaining the FSL report regarding the
Arms and Ammunitions, he obtained sanction U/s 39 of Arms Act from Addl.
DCP North-East, prepared supplementary charge-sheet and has filed the same
before the Court.
During his cross-examination on behalf of accused persons, it is
stated by him that the accused persons were found on fourth floor.
20. PW-16 Ms. Urvija Goel, Director, MHA deposed that on
30.05.2014, she was posted as ACP, Sub-Division Shahdara. On that day, her
Reader placed before her one report U/s 57 NDPS Act prepared by SI Faizan
Ghani in the present case which is already Ex. PW-4/1. This witness has seen
and signed the same at Point-B.
21. PW-17 Dr. V.R. Anand, Assistant Director (Ballistics), FSL
Rohini, Delhi deposed that he is working at FSL Rohini since 2006. On
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U/s 21 NDPS Act & 25 Arms Act
02.06.2014, he was posted as Assistant Director (Ballistics) at FSL Rohini. On
that day two sealed parcels each sealed with five seals of M.K in FIR No.
307/2014 dated 29.05.2014, U/s 21 NDPS Act and 25 Arms Act, P.S. Welcome
alongwith specimen seal, forwarding letter, copy of FIR, copy of seizure memo
etc. were received in their office vide two letter number 1523/ SHO Welcome
dated 02.06.2014. Same were marked to Division of this witness for ballistics
examination. The seals were intact and were tallying with specimen seal.
It is stated by him that on opening the first parcel, it was found
containing one improvised pistol 7.65 mm bore and two 7.65 mm cartridges
were taken out and marked as F1, A1 and A2, respectively.
It is stated by him that on opening the second parcel, it was found
containing one country made pistol .315 bore and 8 mm/.315 cartridge were
taken out and marked as F2 and A3, respectively.
It is stated by him that he examined the said exhibits and found that
the improvised pistol and country made pistol marked as F1 and F2 were in
working order and test fire conducted successfully. The cartridges A1 & A2 and
A3 were live ones. The cartridges A1 & A2 were test fired through the
improvised pistol marked F1. The cartridge A3 was test fired through the
country made pistol marked F2. The exhibits F1 and F2 were fire arms and A1
to A3 were ammunition as defined in the Arms Act, 1959.
It is stated by him that after examination the exhibits/ remnants
were kept in separate parcels which were sealed with the seal of VRA FSL
DELHI. This witness prepared the detailed report bearing no. FSL 2014/F-3928
dated 31.07.2014 which is Ex. PW-17/A (running into two pages) bearing his
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signatures at Points A and B. He submitted his report in a sealed envelope
alongwith the sealed parcels for onward transmissions to the forwarding agency.
22. PW-18 Rajender Singh Sagar, Addl. DCP, North-East District
(now Addl. CP Armed Police, Delhi) deposed that on 17.10.2014 he was posted
as Addl. DCP, North-East District. SI Mohd. Faizan Ghani has placed before
this witness the case file of the present case alongwith FSL result regarding the
Arms and Ammunitions recovered from accused persons namely Shakeel
Ahmad and Amit. This witness has carefully gone through the record and FSL
result and accorded sanction U/s 39 of Arms Act for prosecution of the above-
said accused persons. The sanction order is Ex. PW-18/A which bears signature
of this witness at Point-A.
23. During trial, accused persons admitted the FIR No. 307/2014, P.S.
Welcome, registered by ASI Yasin Khan (Ex. AD-1) U/s 330 BNSS/ 294
Cr.P.C.
24. No other witness was examined by the prosecution. Thereafter,
P.E. was closed vide order dated 20.11.2025.
STATEMENTS OF ACCUSED PERSONS
25. Statement of accused Shakeel Ahmed was recorded under Section
313 Cr.P.C. wherein he pleaded his innocence and denied entire prosecution’s
case. It is stated by him that he was falsely arrested. It is stated by him that FSL
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report Ex. PW-13/A and report Ex. PW-17/A are false. It is stated by him that
the sanction U/s 39 Arms Act Ex. PW-18/A was accorded without application
of mind. It is stated by him that being the police officials, they have deposed
against him in order to prove their false case. It is stated by him that on
28.05.2014 in the evening time at around 5:30 pm, while he was present outside
his house, 5-6 persons lifted him, took him in the car, they also picked up one
more person from Sunder Nagri in the evening time at around 6:15 pm, whom
he does not know at that time, but presently he (that other person) is his
(accused Shakeel Ahmed) co-accused in this case. It is stated by him that he
was falsely implicated in the present case and the contraband and weapon were
planted upon him. It is stated by him that he has not made any disclosure
statement to the police.
26. Statement of accused Amit Kumar was recorded under Section 313
Cr.P.C. wherein he pleaded his innocence and denied entire prosecution’s case.
It is stated by him that he was falsely arrested. It is stated by him that report Ex.
PW-17/A is false. It is stated by him that the sanction U/s 39 Arms Act Ex. PW-
18/A was accorded without application of mind. It is stated by him that being
the police officials, they have deposed against him in order to prove their false
case. It is stated by him that on 28.05.2014 in the evening time at around 6:15
pm, while he was present at Sunder Nagri in the gali of his house 5-6 persons
lifted him, took him in the car, in which one more person was also sitting whom
he does not know at that time, but presently he (that other person) is his
(accused Amit Kumar) co-accused in this case. It is stated by him that he was
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falsely implicated in the present case and weapon was planted upon him. It is
stated by him that he has not made any disclosure statement to the police.
27. Accused persons chose not to lead any defence evidence.
FINAL ARGUMENTS
28. This Court has heard the Ld. Additional Public Prosecutor and the
Ld. Counsels for the accused persons and perused the record carefully.
29. It is contended by Ld. Addl. PP for the State that all the procedures
as per NDPS Act and Arms Act have been complied with in the present matter
at the time of recovery and thereafter. It is contended that desi katta (country
made pistol) each with live cartridges were recovered from accused persons. A
plastic transparent polythene containing a light blue colour polythene containing
40 grams (i.e. intermediate quantity) (with polythene) of heroin/ smack (white
colour powdery substance) was recovered from the right side pocket of wearing
pant of accused Shakeel. There is nothing on record to suggest that police
officials had any enmity with the accused persons. Thus, the offence U/s 25
Arms Act against both the accused persons and offence U/s 21 NDPS Act
against accused Shakeel Ahmed, are proved beyond reasonable doubt.
30. Per contra, it is contended on behalf of the accused persons that
accused persons have been falsely implicated in the present case. It is contended
that they were falsely arrested. Accused Shakeel Ahmed was lifted from outside
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of his house and accused Amit Kumar was lifted from Sunder Nagri in the gali
of his house. It is contended that no CCTV footage qua arrest of the accused
persons has 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 proceedings U/s 52A NDPS Act have not been complied with in
the present matter.
Legal Requirement to prove the Charges :-
31. 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)
32. As far as contravention of the provisions is concerned, Section 8 of
NDPS Act completely prohibits the possession of narcotic drug or psychotropic
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substances, except for medical or scientific purposes, that too in the manner as
prescribed by the Act. This section reads as under :
“No person shall–
(a) cultivate any coca plant or gather any portion of coca plant; or
(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)
33. As per the Section, possession of all narcotic drugs is prohibited by
Section 8 of NDPS Act.
34. 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;
35. As per the definition, ‘narcotic drug’ includes ‘manufactured drug’,
therefore, the possession of ‘manufactured drug’ is prohibited by Section 8 of
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NDPS Act.
36. 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)
37. “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)
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38. The prosecution would also be required to prove that the quantity
of the contraband recovered was of small, intermediate or commercial quantity.
The terms “small quantity” and “commercial quantity” are defined in Section
2(xxiiia) & 2 (viia), as under :
“(xxiiia) “small quantity”, in relation to narcotic drugs and psychotropic
substances, means any quantity lesser than the quantity specified by the Central
Government by notification in the Official Gazette;
(viia) “commercial quantity”, in relation to narcotic drugs and psychotropic
substances, means any quantity greater than the quantity specified by the Central
Government by notification in the Official Gazette.”
39. 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.
40. In order to prove the charges U/s 21 NDPS Act & U/s 25 Arms
Act, the prosecution is required to prove the following facts:
(1) That accused persons were in possession of one country
made pistol (katta) each alongwith live cartridges. Accused Shakeel Khan was
also in possession of contraband i.e. heroin.
(2) That the possession was in contravention of the provision of
the Acts or any rule or 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(b) NDPS Act.
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41. 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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42. 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
warrants for the arrest of any person whom they have reason to believe to have
committed any offence punishable under Chapter IV or for search of any building,
conveyance or place in which they have reason to believe that any narcotic drug
or psychotropic substance in respect of which an offence punishable under
Chapter IV has been committed, is kept or concealed. Section 42 empowers
certain officers to enter, search, seize and arrest without warrant or authorisation.
Such officer should be superior in rank to a peon, sepoy or constable of the
departments of central excise, narcotics, customs, revenue, intelligence or any
other department of the Central Government or an officer of similar superior rank
of the revenue, drugs control, excise, police or any other department of a State
Government as is empowered in this behalf by general or special order of the
State Government. Such officer, if he has reason to believe from personal
knowledge or information taken down in writing, that any offence punishable
under Chapter IV has been committed, he may enter into and search in the manner
prescribed thereunder between sunrise and sunset. He can detain and search any
person if he thinks proper and if he has reason to believe such person to have
committed an offence punishable under Chapter IV. Under the proviso, such
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U/s 21 NDPS Act & 25 Arms Actofficer 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
of the departments mentioned in Section 42 or to the nearest magistrate……..
Section 51 is also important for our purpose. ……. This is a general provision
under which the provisions of Code of Criminal Procedure, (“Cr. PC” for short)
are made applicable to warrants, searches, arrests and seizures under the Act.
Section 52 lays down that any officer arresting a person under Sections 41 to 44
shall inform the arrested person all the grounds for such arrest and the person
arrested and the articles seized should be forwarded without unnecessary delay to
the Magistrate by whom the warrant was issued or to the officer-in-charge of the
nearest police station, as the case may be and such Magistrate or the officer to
whom the articles seized or the person arrested are forwarded may take such
measures necessary for disposal of the person and the articles. This Section thus
provides some of the safeguards within the parameters of Article 22(1) of the
Constitution of India. In addition to this, Section 57 further requires that whenever
any person makes arrest or seizure under the Act, he shall within forty-eight hours
after such arrest or seizure make a report of the particulars of arrest or seizure to
his immediate official superior. This Section provides for one of the valuable
safeguards and tries to check any belated fabrication of evidence after arrest or
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43. 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.
ANALYSIS OF EVIDENCE
44. 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 & Section 50
of NDPS Act
45. In the case titled as State of Punjab Vs. Balbir Singh, (1994) 3 SCC
299, Hon’ble Apex Court had observed as under:-
“25. The questions considered above arise frequently before the trial courts.
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U/s 21 NDPS Act & 25 Arms ActTherefore, we find it necessary to set out our conclusions which are as follows:-
1) If a police officer without any prior information as contemplated under the
provisions of the Narcotic Drugs And Psychotropic Substances Act makes a
search or arrests a person in the normal course of investigation into an offence or
suspected offence as provided under the provisions of Cr P.C. and when such
search is completed at that stage Section 50 of the Narcotic Drugs and
Psychotropic Substances Act would not be attracted and the question of
complying with the requirements thereunder would not arise. If during such
search or arrest there is a chance recovery of any narcotic drug or Psychotropic
substance then the police officer, who is not empowered, should inform the
empowered officer who should thereafter proceed in accordance with the
provisions of the Narcotic Drugs And Psychotropic Substances Act. If he happens
to be an empowered officer also, then from that stage onwards. he should carry
out the investigation in accordance with the other provisions of the Narcotic
Drugs And Psychotropic Substances Act.”
(emphasis supplied)
46. In State of H.P. Vs. Sunil Kumar (05.03.2014 – SC) : MANU/
SC/0193/2014, a case of chance recovery, Hon’ble Apex Court considered the
question regarding application of Section 50 NDPS Act. Relevant para of the
said judgment dealing with chance recovery and notice U/s 50 NDPS Act are
reproduced as under :-
“Chance recovery :-
11. The State is in appeal against the acquittal of Sunil Kumar and the broad
submission is that the recovery of charas from him was a chance recovery. Under
these circumstances, in view of the Constitution Bench decision in Baldev Singh
which endorsed the view taken in State of Punjab v. Balbir Singh (1994) 3 SCC
299 the personal search of Sunil Kumar resulting in the recovery of contraband
did not violate Section 50 of the Act. Reliance was placed by learned Counsel on
paragraph 25 in Balbir Singh which was also endorsed by the Constitution Bench.
It was submitted that it is only after a chance or accidental recovery of any
narcotic drug or psychotropic substance by any police officer that the provisions
of the Act would come into play. It is then that the empowered officer should be
informed and that empowered officer should thereafter proceed to investigate the
matter in accordance with the provisions of the Act.
12. The relevant extract of paragraph 25 of Balbir Singh reads as follows:
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U/s 21 NDPS Act & 25 Arms Act(1) If a police officer without any prior information as contemplated
under the provisions of the NDPS Act makes a search or arrests a person in the
normal course of investigation into an offence or suspected offences as provided
under the provisions of Code of Criminal Procedure and when such search is
completed at that stage Section 50 of the NDPS Act would not be attracted and the
question of complying with the requirements thereunder would not arise. If during
such search or arrest there is a chance recovery of any narcotic drug or
psychotropic substance then the police officer, who is not empowered, should
inform the empowered officer who should thereafter proceed in accordance with
the provisions of the NDPS Act. If he happens to be an empowered officer also,
then from that stage onwards, he should carry out the investigation in accordance
with the other provisions of the NDPS Act.
13. In view of the opinion expressed by the Trial Court and the High Court, we
need to firstly understand what a ‘chance recovery’ is. The next question would be
whether the provisions of Section 50 of the Act would apply when there is a
chance recovery.
14. The expression ‘chance recovery’ has not been defined anywhere and its plain
and simple meaning seems to be a recovery made by chance or by accident or
unexpectedly. In Mohinder Kumar v. State, Panaji, Goa (1998) 8 SCC 655 this
Court considered a chance recovery as one when a police officer “stumbles on”
narcotic drugs when he makes a search. In Sorabkhan Gandhkhan Pathan v. State
of Gujarat (2004) 13 SCC 608 the police officer, while searching for illicit
liquor, accidentally found some charas. This was treated as a ‘chance recovery’.
15. Applying this to the facts of the present appeal, it is clear that the police
officers were looking for passengers who were travelling ticketless and nothing
more. They accidentally or unexpectedly came across drugs carried by a
passenger. This can only be described as a recovery by chance since they were
neither looking for drugs nor expecting to find drugs carried by anybody.
16. It is not possible to accept the view of the High Court that since the police
officers conducted a random search and had a “positive suspicion” that Sunil
Kumar was carrying contraband, the recovery of charas from his person was not a
chance recovery. The recovery of contraband may not have been unexpected, but
the recovery of charas certainly was unexpected notwithstanding the submission
that drugs are easily available in the Chamba area. The police officers had no
reason to believe that Sunil Kumar was carrying any drugs and indeed that is also
not the case set up in this appeal. It was plainly a chance or accidental or
unexpected recovery of charas-Sunil Kumar could well have been carrying any
other contraband such as, smuggled gold, stolen property or an illegal firearm or
even some other drug.
17. We are not going into the issue whether the personal or body search of Sunil
Kumar (without a warrant) was at all permitted by law under these circumstances.
That was not an issue raised or canvassed before the Trial Court or the High Court
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or even before us, although it has been adverted to in the written submissions by
Learned Counsel assisting us on behalf of Sunil Kumar.
Applicability of Section 50 of the Act:
18. As far as the applicability of Section 50 of the Act in a chance recovery is
concerned, the issue is no longer res integra in view of the decision of the
Constitution Bench in Baldev Singh.
19. It is true that Sunil Kumar behaved in a suspicious manner which resulted in
his personal search being conducted after he disembarked from the bus. However,
there is no evidence to suggest that before he was asked to alight from the bus, the
police officers were aware that he was carrying a narcotic drug, even though the
Chamba area may be one where such drugs are easily available. At best, it could
be said the police officers suspected Sunil Kumar of carrying drugs and nothing
more. Mere suspicion, even if it is ‘positive suspicion’ or grave suspicion cannot
be equated with ‘reason to believe’. Joti Parshad v. State of Haryana 1993 Supp (2)
SCC 497 and Sheo Nath Singh v. Appellate Assistant CIT (1972) 3 SCC 234.
These are two completely different concepts. It is this positive suspicion, and not
any reason to believe, that led to the chance recovery of charas from the person of
Sunil Kumar.
20. Similarly, the positive suspicion entertained by the police officers cannot be
equated with prior information. Bharatbhai Bhagwanjibhai v. State of Gujarat
(2002) 8 SCC 327 The procedure to be followed when there is prior information
of the carrying of contraband drugs is laid down in the Act and it is nobody’s case
that that procedure was followed, let alone contemplated.
21. We are not in agreement with the view of the High Court that since the police
officers had a positive suspicion that Sunil Kumar was carrying some contraband,
therefore, it could be said or assumed that they had reason to believe or prior
information that he was carrying charas or some other narcotic substance and so,
before his personal or body search was conducted, the provisions of Section 50 of
the Act ought to have been complied with. The recovery of charas on the body or
personal search of Sunil Kumar was clearly a chance recovery and, in view of
Baldev Singh, it was not necessary for the police officers to comply with the
provisions of Section 50 of the Act.”
47. The Hon’ble Supreme Court in Karnail Singh Vs. State of
Haryana, (2009) 8 SCC 539 has dealt with this issue and observed as under: –
(a) The officer on receiving the information [of the nature referred to in sub-
section (1) of Section 42] from any person had to record it in writing in
the register concerned and forthwith send a copy to his immediate
official superior, before proceeding to take action in terms of clauses (a)
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to (d) of Section 42(1).
(b) But if the information was received when the officer was not in the police
station, but while he was on the move either on patrol duty or otherwise,
either by mobile phone, or other means, and the information calls for
immediate action and any delay would have resulted in the goods or
evidence being removed or destroyed, it would not be feasible or
practical to take down in writing the information given to him, in such a
situation, he could take action as per clauses (a) to (d) of Section 42(1)
and thereafter, as soon as it is practical, record the information in writing
and forthwith inform the same to the official superior.
(c) In other words, the compliance with the requirements of Sections 42(1)
and 42(2) in regard to writing down the information received and
sending a copy thereof to the superior officer, should normally precede
the entry, search and seizure by the officer. But in special circumstances
involving emergent situations, the recording of the information in
writing and sending a copy thereof to the official superior may get
postponed by a reasonable period, that is, after the search, entry and
seizure. The question is one of urgency and expediency.
(d) While total non-compliance with requirements of sub-sections (1) and (2)
of Section 42 is impermissible, delayed compliance with satisfactory
explanation about the delay will be acceptable compliance with Section
42. To illustrate, if any delay may result in the accused escaping or the
goods or evidence being destroyed or removed, not recording in writing
the information received, before initiating action, or non- sending of a
copy of such information to the official superior forthwith, may not be
treated as violation of Section 42. But if the information was received
when the police officer was in the police station with sufficient time to
take action, and if the police officer fails to record in writing the
information received, or fails to send a copy thereof, to the official
superior, then it will be a suspicious circumstance being a clear violation
of Section 42 of the Act. Similarly, where the police officer does not
record the information at all, and does not inform the official superior at
all, then also it will be a clear violation of Section 42 of the Act.
Whether there is adequate or substantial compliance with Section 42 or
not is a question of fact to be decided in each case.”
48. In the present case, there was no secret information qua possession
of Narcotic Drugs by the accused Shakeel Ahmed, rather the secret information
was qua presence of accused Shakeel Ahmed at H.No. 10236 AB, 4 th Floor,
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Gali No.1, West Gorakh Park, Shahdara, Delhi, who was wanted in FIR No.
256/14, P.S. Jagatpuri, U/s 307/153/186 IPC. When the police apprehended
accused Shakeel one more person (i.e. accused Amit Kumar) also found there.
From both the accused persons one desi katta (country made pistol) each with
live cartridges were recovered. In cursory search of accused Shakeel Ahmed, 40
grams of heroin/ smack (with polythene) was recovered from the right side
pocket of his wearing pant.
49. It is apparent that the present case is of chance recovery/ accidental
recovery of heroin from accused Shakeel Ahmed as he was arrested being
involved in some other case, but on his cursory search heroin was recovered
from him. In such circumstances, compliance of Section 42 NDPS Act is not
required in the present matter.
SI Arun Sindhu being an empowered officer under NDPS Act was
duty bound to conduct further proceedings as per NDPS Act. After
apprehension of the accused persons, SI Arun Sindhu sent rukka, but did not
prepare any report and not even inform to his officials superior orally or in
writing qua recovery of the contraband from the possession of accused Shakeel
Ahmed and apprehension of accused persons.
50. Though, it is stated by all the members of raiding party that they
left the office of Special Staff for apprehension of accused Shakeel Ahmed vide
departure entry no.9, infact copy of that handwritten departure entry no.9 is on
record, however none of the witness has exhibited this departure entry. The
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concerned Duty Officer has not been examined before the Court to prove this
departure entry.
51. The failure to prove departure entry no.9 is detrimental to the case
of prosecution as this was the entry whereby the entire police proceedings had
started and whereby the police officials reached the spot. In absence of due
proof of this departure entry, there remain no documentary evidence to show
that the police officials reached the spot at the time as claimed by them.
52. The legal position in respect to Section 50 NDPS Act has been laid
down by Hon’ble Supreme Court in the case titled as State Vs. Baldev Singh,
AIR 1999 SC 2378 that the compliance of the provisions of Section 50 NDPS
Act is mandatory. It is also held in this case that the compliance of this
provision is not necessary where recovery was effected without prior
information and where it was the case of chance recovery. The relevant para of
this judgment reads as under:-
“12. On its plain reading, Section 50 would come into play only in the case of a
search of a person as distinguished from search of any premises etc. However, if
the empowered officer, without any prior information as contemplated by Section
42 of the Act makes a search or causes arrest of person during the normal course
of investigation into an offence or suspected offence and on completion of that
search, a contraband under the Narcotic Drugs And Psychotropic Substances Act
is also recovered, the requirements of Section 50 of the Act are not attracted.”
(emphasis supplied)
53. In the present matter, initially there was no information qua
possession of contraband by the accused Shakeel Ahmed, thus police officials
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straight away took his search as done in the case of Arms Act or under IPC. In
that cursory search alleged contraband was recovered from possession of
accused Shakeel Ahmed. It is only after recovery, notice U/s 50 NDPS Act was
given to accused Shakeel Ahmed, however even prior to giving that notice
contraband had been recovered. Thus, notice U/s 50 NDPS Act is of no value in
the present case.
54. Section 55 of the NDPS Act was duly complied with in the present
matter as PW-9 ACP Manmohan Kumar, Inspector Investigation, P.S. Welcome
(as SHO, P.S. Welcome was on leave on 29.05.2014 i.e. date of incident) has
also put his seal on the sealed pullandas and FSL form, before depositing the
same in the maalkhana. Entries qua same were also made in register no.19
which are exhibited on record as Ex. PW-2/A and Ex. PW-2/B. He also lodged
DD No.32A dated 29.05.2014 with respect to the fact that the case property was
counter-sealed by him with the seal of MMK which is exhibited on record as
Ex. PW-12/A.
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, after apprehension of the accused persons and
recovery of firearms & heroin investigation of the case was marked to PW-15 SI
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Mohd. Faizan Ghani who had arrested the accused persons. SI Mohd. Faizan
Ghani had sent a special report U/s 57 NDPS Act on 30.05.2014 which is Ex.
PW-4/1 (OSR). The said report was also forwarded by SHO, P.S. Welcome. The
said report was received vide diary no. 1882 dated 30.05.2014 in the office of
ACP concerned. The said report has been duly proved on record. The report was
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 compliance of Section 52A of NDPS
Act.
57. As a matter of fact, in the present case the sampling proceedings
were conducted, but not before the Ld. Magistrate U/s 52A of the NDPS Act,
rather by IO SI Arun Sindhu at the spot.
58. It is contended by Ld. Defence Counsels that the entire recovery
proceedings are vitiated due to non-compliance of Section 52A of the NDPS
Act. However, Hon’ble Apex Court in a recent judgment titled as Bharat Amble
Vs. State, Crl. Appeal No.250/25 of Hon’ble Apex Court has summarized the
law on compliance of Section 52A NDPS Act 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
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context of drug disposal, as it serves a broader purpose of also introducing
procedural safeguards in the treatment of narcotics substance after seizure
inasmuch as it provides for the preparation of inventories, taking of photographs
of the seized substances and drawing samples therefrom in the presence and with
the certification of a magistrate. Mere drawing of samples in presence of a
gazetted officer would not constitute sufficient compliance of the mandate under
Section 52A sub-section (2) of the NDPS Act.
(II) Although, there is no mandate that the drawing of samples from the
seized substance must take place at the time of seizure as held in Mohanlal
(supra), yet we are of the opinion that the process of inventorying, photographing
and drawing samples of the seized substance shall as far as possible, take place in
the presence of the accused, though the same may not be done at the very spot of
seizure.
(III) Any inventory, photographs or samples of seized substance
prepared in substantial compliance of the procedure prescribed under Section 52A
of the NDPS Act and the Rules / Standing Order(s) thereunder would have to be
mandatorily treated as primary evidence as per Section 52A sub-section (4) of the
NDPS Act, irrespective of whether the substance in original is actually
produced before the court or not.
(IV) The procedure prescribed by the Standing Order(s) / Rules in
terms of Section 52A of the NDPS Act is only intended to guide the officers and
to see that a fair procedure is adopted by the officer in-charge of the investigation,
and as such what is required is substantial compliance of the procedure laid
therein.
(V) Mere non-compliance of the procedure under Section 52A or the
Standing Order(s) / Rules thereunder will not be fatal to the trial unless there are
discrepancies in the physical evidence rendering the prosecution’s case doubtful,
which may not have been there had such compliance been done. Courts should
take a holistic and cumulative view of the discrepancies that 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
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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)
59. Though, in the present case, there is no compliance of Section 52A
NDPS Act, as the sampling proceedings were done by the IO, however, in view
of the judgment in Narcotics Control Bureau Vs. Kashif, 2024 INSC 1045,
decided on 20.12.2024 and Bharat Aambale (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 persons,
and the standard of proof required would be beyond a reasonable doubt.
60.(i)(a) In the present case, as per case of prosecution, case property was
sealed at the spot by IO SI Arun Sindhu with the seal of MK and later on, case
property was sealed by Inspector Investigation Manmohan Kumar (PW-9) with
the seal of MMK. However, when the case property was produced before the
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Court, it was not bearing the seal of MMK as it has been observed in the
testimonies of PW-1 and PW-3 that :-
‘MHC(M) has produced one white pullanda wrapped in white cloth
sealed with the seal of MK and the same was opened with the permission of
Court. White plastic taken out from the white cloth and smack
(diacetylmorphine) was shown the witness and witness correctly identified the
same. The same is Ex. P5.’
Thus, the case property was not found in the same condition as it
was sealed. This fact shows that the case property was tempered with. Hence, it
can be safely held that the case property was not kept intact during investigation
prior to its production before the Court.
(b) Furthermore, the seal used by SI Arun Sindhu (PW-3) was not
belonging to him, rather he used the seal of another member of raiding party
namely HC Manoj Kumar (PW-5). It is to be noted that there is no handing over
memo qua handing over of the seal by HC Manoj Kumar to SI Arun Sindhu.
There is no explanation as to why SI Arun Sindhu was not carrying his seal or
why he did not use his seal on the seized property i.e. firearms and Narcotic
Drugs.
(c) The seal after use was given to HC Parveen Kumar (now SI) who
stated that he returned the seal after about 10 days. It is stated by him that he
does not know as to whom the seal of MK belonged, however it is stated by him
that the same was with IO SI Arun Sindhu.
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From the testimony of this witness, it appears that he returned the
seal after 10 days to SI Arun Sindhu as for him the seal was of SI Arun Sindhu
only and he does not know the real owner of that seal.
(d) Per contra, HC Manoj Kumar (now SI) stated that after use the seal
was handed over to HC Parveen Kumar and he (HC Manoj Kumar) had
received the seal after 1-2 days later, while HC Parveen Kumar does not even
know if HC Manoj Kumar was owner of that seal.
(e) It is also interesting to note that HC Parveen Kumar and HC Manoj
Kumar, both were the members of same raiding party, allegedly present at the
time of recovery proceedings, despite that HC Parveen Kumar had no clue if the
seal used to seal recovered firearms and Narcotic Drugs was belonging to HC
Manoj Kumar.
Thus, there is apparent contradiction qua use of seal of MK as well
as when it was returned and to whom it was returned.
61.(a) In the present case, during testimonies of PW-1 and PW-3 one
pistol and one fired cartridge were duly proved before the Court bearing the seal
of FSL. The same were Ex. P1 and P2, respectively.
(b) During testimonies of PW-1 and PW-3, one another sophisticated
pistol wrapped in one yellow colour envelope sealed with seal of ASJ with case
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particulars, was produced. On opening the said envelope, one pistol and two
fired cartridges were taken out which were correctly identified by the witnesses,
the same were Ex. P3 and P4 (for two fire cartridges), respectively.
However, nothing has been brought on record to show how the seal
of ASJ came on the firearm. It is not clear whether it was the seal of some Ld.
Additional Sessions Judge before whom the firearm was produced in some
other case or it was seal of some police officials or FSL official.
62. Hence, the prosecution failed to produce the recovered substance in
its intact form as it was recovered and sealed at the spot and the prosecution has
also failed to prove the foundational fact i.e. recovery of contraband against
accused Shakeel Ahmed and recovery of firearms against both the accused
persons, beyond reasonable doubt.
Discussion on the point of recovery of contraband
63. In the present matter, all the police officials of raiding party have
stated that as per secret information they reached H.No. 10236 AB, 4 th Floor,
Gali No.1, West Gorakh Park, Shahdara, Delhi where they found accused
Shakeel Ahmed as well as accused Amit Kumar. After apprehension of accused
persons, one desi katta (country made pistol) each with live cartridges were
recovered from them. In cursory search of accused Shakeel Ahmed, Narcotic
Drugs were also recovered from him. However, the recovery of the contraband
from the accused is shrouded with doubts due to following reasons :-
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(a) The testimony of HC Manoj Kumar whose seal was used to seal the
case property is inconsistent with the testimony of other members of the raiding
party which raises doubt qua his involvement in the raiding team as PW-1 HC
Parveen Kumar and PW-3 SI Arun Sindhu stated that the vehicles were parked
20-50 meters away from the building from where accused persons were
apprehended, while it is stated by HC Manoj Kumar that they parked the vehicle
at a distance of 150-200 meters away from the said house.
(b) There is also inconsistency qua floor of the building from where
accused persons were apprehended as in his cross-examination it is stated by
PW-1 HC Parveen Kumar that all the written proceedings were done in the
room itself on the third floor, while the other witnesses have stated that accused
persons were apprehended from top floor/ 4th floor.
(c) It is stated by PW-1 HC Parveen Kumar & PW-3 SI Arun Sindhu
i.e. members of raiding party that the rukka was taken by Ct. Saleem (now HC)
at 10:45 pm. It is stated by PW-5 HC Manoj Kumar that the rukka was taken by
Ct. Saleem (now HC) at about 9:45-10:00 pm. It is stated by PW-6 Ct. Saleem
Khan himself that he left the spot alongwith rukka at about 10:45-10:50 pm.
However, it is stated by PW-9 ACP Manmohan Kumar that at
about 8:30-9:00 pm, Ct. Saleem came to his office and remained with him for
about 20-25 minutes.
Thus, there is apparent contradiction qua timings of the
proceedings.
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(d) Accused persons were apprehended at around 7:00 pm from H.No.
10236 AB, top floor/ 4th Floor, Gali No.1, West Gorakh Park, Shahdara, Delhi
which was a residential area. However, police did not join and did not even
sincerely try to join any resident of the building or the locality. It is specifically
stated by PW-3 SI Arun Sindhu that he had asked 4-5 public persons to join the
investigation, but none agreed and left the spot without disclosing their names
and addresses. Thereafter, he tried to contact the residents of first and second
floors, but residents of the above-said floors had not opened the door. Though, it
is a fact that generally public persons do not became part of police proceedings
or investigation, more so in a case of Narcotic Drugs or Arms Act. However,
police officials did not record names, particulars of the neighbours or public
persons, or did not serve any notice to them to join investigation or bother to
record their refusal qua same. This inaction on the part of the police raises doubt
qua time and place of recovery as stated by the police.
Non-joining of public witness during the proceedings, raises
serious doubt as regards the recovery made from the accused persons. In this
regard, reliance can be placed upon judgment titled as Bantu Vs. State Govt. of
NCT of Delhi (Bail Appl. No.2287/22 dtd.08.07.2024 of Hon’ble Delhi High
Court).
Thus, in the present matter, it can be safely held that sincere and
sufficient efforts were not made by the raiding party to join the independent
witness in the investigation. Further, the testimonies of the police officials
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suffer from material contradictions as stated above, which raises serious doubt
qua their version of recovery.
(e) No photography or videography of the search, arrest or recovery
proceedings was made, despite the fact that in the year 2014 almost all the
persons were having mobile phones having cameras with them.
64. Upon reviewing the evidence, particularly the failure of the
Investigating Agency of subjecting the recovered contraband (smack/ heroin) to
sampling proceedings under section 52A NDPS Act and failure of prosecution
to produce the recovered substance in its intact form as it was recovered and
sealed at the spot, the prosecution has failed to prove the foundational facts
against accused Shakeel Ahmed beyond reasonable doubt. The presumption
under Sections 35 and 54 of the NDPS Act cannot be raised in this case against
accused Shakeel Ahmed, as the recovery of contraband could not be established
beyond reasonable doubt, as MHC(M) has produced the case property bearing
seal of MK which was affixed by IO SI Arun Sindhu, however the seal of
Inspector Investigation who had counter-sealed the case property with the seal
of MMK in compliance of Section 55 NDPS Act was not there on the case
property when it was produced before the Court. Further, the departure entry
whereby the police party reached the spot has not been proved on record. There
is no explanation how one of the gun was bearing seal of ASJ.
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Conclusion
65. In the present matter, the prosecution has failed to prove beyond
reasonable doubt the departure entry whereby the police party reached the spot
which is a material lacuna in the case of prosecution. Though in the present
case, due sanction U/s 39 Arms Act was accorded by Sh. Rajender Singh Sagar,
Addl. DCP (PW-18) vide sanction order Ex. PW-18/A, however neither
proceedings U/s 52A NDPS Act were done in the present case, nor the case
property was kept in due custody as one of the firearm was produced in the
Court with the seal of ASJ without any explanation to which this seal belongs.
The contraband which were supposed to be proved in the Court having two
seals of MK and MMK was produced in the Court with the seal of MK. This
improper compliance of Section 52A NDPS Act, raises a doubt in the mind of
the Court as regards the recovery made from the possession of accused persons.
In the opinion of the Court, it cannot be said beyond doubt that there is no
material contradiction in the story of the prosecution and it also cannot be said
beyond reasonable doubt that the case property after seizure was duly sealed
and preserved till the time it was produced before in the Court. Therefore, in the
opinion of the Court, the benefit of doubt would go in favour of the accused
persons.
66. Accordingly, accused Shakeel Ahmed for the offences punishable
under Section 21 NDPS Act & 25 Arms Act and accused Amit Kumar for the
offence punishable under Section 25 Arms Act, are acquitted. Accused persons
are directed to furnish bail bonds in compliance of Section 481 BNSS (earlier
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Section 437-A Cr.P.C.), as per rules.
67. File be consigned to Record Room after due compliance.
Digitally
Announced in the open Court GAJENDER signed by
SINGH GAJENDER
on 17th April, 2026 NAGAR SINGH
NAGAR
(Gajender Singh Nagar)
Special Judge (NDPS Act)
District Shahdara
Karkardooma Courts, Delhi
