Sunil @ Sunil Sharma vs Directorate Of Revenue Intelligence on 7 May, 2026

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    Delhi High Court

    Sunil @ Sunil Sharma vs Directorate Of Revenue Intelligence on 7 May, 2026

                              *      IN THE HIGH COURT OF DELHI AT NEW DELHI
                              %                                     Judgment reserved on: 28.04.2026
                                                                    Judgment pronounced on: 07.05.2026
    
                              +      CRL.A. 356/2016
                                     SUNIL @ SUNIL SHARMA                                 .....Appellant
                                                           Through:      Mr. Adarsh Priyadarshi, Mr. Amit
                                                                         Dwivedi, Mr. Syed Miran, Mr. Suchit
                                                                         and Ms. Sandhya, Advocates
    
                                                           versus
    
                                     DIRECTORATE OF REVENUE INTELLIGENCE.....Respondent
                                                           Through:      Mr. Satish Aggarwala, Senior
                                                                         Standing Counsel with Ms. Mala
                                                                         Sharma and Mr. Gagan Vaswani,
                                                                         Advocates.
    
                              CORAM:
                              HON'BLE MS. JUSTICE CHANDRASEKHARAN SUDHA
                                                           JUDGMENT
    

    CHANDRASEKHARAN SUDHA, J.

    1. In this appeal filed under Section 374(2) of the Code of

    SPONSORED

    Criminal Procedure, 1973 (the Cr.P.C.), the sole accused in

    Sessions Case No.38A/2012 on the file of the ASJ, Special Judge-

    NDPS, South District, Saket Courts, New Delhi, challenges the

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    judgement dated 27.02.2016 and order on sentence dated

    10.03.2016, as per which he has been convicted and sentenced for

    the offence punishable under Section 21(c) of the Narcotic Drugs

    and Psychotropic Substances Act, 1985 (the NDPS Act).

    2. The prosecution case is that on 18.05.2012 at about

    01.30 PM, the accused was found in possession of 1 kilogram of

    heroin while he was coming into Delhi crossing the Singhu Border

    in car bearing registration no. DL-4C AH 1455.

    3. On appearance of the accused before the trial court,

    copies of all the prosecution documents were supplied to him in

    compliance with Section 207 Cr.P.C. On 21.12.2012, Charge

    under Section 21(c) of the NDPS Act was framed against the

    accused, which was read over and explained to the accused, to

    which he pleaded not guilty.

    4. In order to prove its case, the prosecution examined

    PWs. 1 to 15 and marked Exts. PQ1/A-F, PW2/A- I, PW4/A-F,

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    PW4/D1-D4, PW5/A, PW6/A, PW7/A, PW8/A, PW9/A-H,

    PW10/A, PW12/A-E, PW14/A-K, Mark A, Mark B, P2, P4-2, P9,

    P12 and P11.

    5. After the close of the prosecution evidence, the accused

    was questioned under Section 313(1)(b) Cr.P.C. with regard to the

    incriminating circumstances appearing against him in the

    prosecution evidence. The accused submitted that he had been

    falsely implicated. No contraband had been recovered from him or

    at his instance. The vehicle bearing registration no. DL 4CAH

    1455 does not belong to him and the car was never in his

    possession. On 18.05.2012, he was taken away by some persons in

    plain clothes from near his house to an office. After reaching the

    office, he came to know that they were officials of the Directorate

    of Revenue Intelligence (DRI). He was illegally detained in their

    office, and was questioned about the vehicle in question. The

    officials told him that some contraband had been recovered from

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    the said vehicle. He denied any connection with the said vehicle

    and stated that the vehicle was never in his possession and that he

    had never purchased it. He was beaten and threatened, and during

    prolonged custody, his family history was obtained. Thereafter, he

    was made to write a statement, which was dictated to him. No

    sealing or seizure proceedings were carried out in his presence. His

    signatures were obtained on various blank papers, small blank

    slips, semi-written papers, and written papers. He was also forced

    to write certain endorsements on some documents without reading

    their contents. All the documents, reports, and records had been

    fabricated and manipulated by the officials of the DRI. The panch

    witness is a stock witness of the DRI. He had retracted his earlier

    statement to the DRI. He had handed over his application for

    retraction in the Legal Cell of the Central Jail to be forwarded to

    the Court about two to three days after his arrest.

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    6. The accused offered himself as a witness and hence

    was examined as DW1. Ext.DW1/A and Mark X were marked.

    7. The trial court, after hearing both sides and on a

    consideration of the oral and documentary evidence, vide judgment

    dated 27.02.2016 convicted the accused for the offence punishable

    under Section 21(c) of the NDPC Act and vide order on sentence

    dated 10.03.2016 sentenced him to undergo rigorous imprisonment

    for 10 years and to pay a fine of ₹1,00,000/-, and in default of

    payment of fine, to undergo simple imprisonment for one year.

    Aggrieved, the accused has preferred this appeal.

    8. After the arguments of both sides were heard on

    21.04.2026, the appeal was reserved for judgment. On going

    through the materials on record, it was found that proceedings

    were initiated by the trial court on the basis of a complaint filed by

    PW2, Intelligence Officer (IO), DRI, Headquarters (HQ), New

    Delhi. Therefore, doubts arose in the mind of this Court as to the

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    procedure that was to be followed for the trial of the case. Hence,

    the matter was reopened and detailed arguments were heard on

    27.04.2026 and 28.04.2026. The learned counsel for the

    appellant/accused relied on the dictums in State of Tamil Nadu

    vs. V. Krishnaswami Naidu (1979) 4 SCC 5 and Pashupati

    Prasad Shukla vs. The Union of India, Criminal Petition No.

    922/2025 dated 05.08.2025 (Gauhati High Court) and canvassed

    for the point that as it was a complaint filed, the procedure

    contemplated in Part B of Chapter XIX should have been

    followed.

    9. On the other hand, the learned Senior Standing Counsel

    (SSC) for the respondent/DRI submitted that the procedure

    contemplated under Chapter XVIII Cr.P.C. dealing with trial

    before Sessions Court is applicable and relied on the dictum in

    Nafe Singh v. NCB 2022 SCC OnLine Del 3290.

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    10. The Apex Court in Tofan Singh vs The State Of

    Tamil Nadu , 6 KHC 111 : AIR 2020 SC 5592 : (2021) 4 SCC 1

    held thus –

    “What is clear, therefore, is that the designated officer under
    S.53, invested with the powers of an officer in charge of a
    police station, is to forward a police report stating the
    particulars that are mentioned in S.173(2) CrPC. Because of
    the special provision contained in S.36A(1) of the NDPS Act,
    this police report is not forwarded to a Magistrate, but only
    to a Special Court under S.36A(1)(d). Raj Kumar Karwal
    (supra), when it states that the designated officer cannot
    submit a police report under S.36A(1)(d), but would have to
    submit a “complaint” under S.190 of the CrPC misses the
    importance of the non obstante clause contained in S.36A(1),
    which makes it clear that the drill of S.36A is to be followed
    notwithstanding anything contained in S.2(d) of the CrPC. It
    is obvious that S.36A(1)(d) is inconsistent with S.2(d) and
    S.190 of the CrPC and therefore, any complaint that has to
    be made can only be made under S.36A(1)(d) to a Special
    Court, and not to a Magistrate under S.190. Shri Lekhi’s
    argument, that the procedure under S.190 has been replaced
    only in part, the police report and complaint procedure under
    S.190 not being displaced by S.36A(1)(d), cannot be

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    accepted. S.36A(1)(d) specifies a scheme which is completely
    different from that contained in the CrPC. Whereas under

    S.190 of the CrPC it is the Magistrate who takes cognizance
    of an offence, under S.36A(1)(d) it is only a Special Court
    that takes cognizance of an offence under the NDPS Act.
    Secondly, the “complaint” referred to in S.36A(1)(d) is not a
    private complaint that is referred to in S.190(1)(a) of the
    CrPC, but can only be by an authorised officer. Thirdly,
    S.190(1)(c) of the CrPC is conspicuous by its absence in
    S.36A(1)(d) of the NDPS Act – the Special Court cannot,
    upon information received from any person other than a
    police officer, or upon its own knowledge, take cognizance of
    an offence under the NDPS Act. Further, a Special Court
    under S.36A is deemed to be a Court of Session, for the
    applicability of the CrPC, under S.36C of the NDPS Act. A
    Court of Session under S.193 of the CrPC cannot take
    cognizance as a Court of original jurisdiction unless the case
    has been committed to it by a Magistrate. However, under
    S.36A(1)(d) of the NDPS Act, a Special Court may take
    cognizance of an offence under the NDPS Act without the
    accused being committed to it for trial. It is obvious,
    therefore, that in view of S.36A(1)(d), nothing contained in
    S.190 of the CrPC can be said to apply to a Special Court
    taking cognizance of an offence under the NDPS Act.”

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    (Emphasis Supplied)

    11. In the light of the aforesaid dictum, the complaint filed

    by PW2 is not a complaint under Section 2(d) Cr.P.C. and so there

    cannot be any doubt regarding the procedure to be followed and it

    can only be under Chapter XVIII Cr.P.C.

    12. Now coming to the merits of the case. The learned

    counsel for the appellant/accused submitted that the prosecution

    case suffers from serious procedural lapses and violation of

    mandatory provisions of law, which go to the root of the matter.

    On 18.05.2012, two samples of 05 grams each were drawn by the

    officer at the office of the DRI. The prosecution has failed to

    explain why the samples were not drawn before the Magistrate, as

    mandated under Section 52A(2) of the NDPS Act.

    12.1. It was submitted that the samples were not deposited in

    the malkhana immediately after the seizure, but only deposited on

    21.05.2012, after a delay of about three days. There is complete

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    absence of explanation regarding where the samples remained for

    the period of three days before being sent to the FSL. The

    application under Section 52A of the NDPS Act was also made

    after an inordinate delay of about six months. Such delay is in

    violation of Clause 3.3 of Standing Order No. 1/89 dated

    13.06.1989 of the Department of Revenue, Ministry of Finance,

    Government of India (S.O. 1/89). It was further submitted that the

    sample seal was not deposited in the malkhana. The seizure memo

    was also not deposited, the facsimile of the seal is not reflected in

    the malkhana register, and the test memo reference is not

    mentioned. The seal remained throughout with the raiding team, an

    interested party. These omissions amount to violation of Clauses

    3.4 and 3.5 of the S.O. 1/89.

    12.2. It was submitted that there is a clear discrepancy in the

    quantity of the contraband, which has not been explained. From

    the alleged recovery of 1kg of heroin, three samples totalling 15

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    grams was admittedly drawn. However, the malkhana register

    reflects the quantity as 1 kg, and even at the time of disposal, the

    quantity is recorded as 1 kg. Further, the entire search and seizure

    proceedings were not conducted at the place from where the

    accused was apprehended but in the office of the DRI. This

    violates Section 50 of the NDPS Act, which requires that such

    proceedings be conducted either at the place of seizure or before a

    Magistrate or Gazetted Officer, and not at a third place.

    12.3. The learned counsel submitted that neither the source

    nor the destination of the alleged contraband has been established.

    No efforts were made by the DRI to trace the person, namely,

    Raju, whose name appears in the disclosure statement, despite the

    availability of his mobile number. In view of the above serious

    lapses and violations, the prosecution has failed to establish its

    case beyond reasonable doubt, and so the accused is entitled to the

    benefit of doubt. In support of the arguments, reference has been

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    made to the dictums in Mohammed Khalid &Anr. vs State of

    Telangana (2024) 5 SCC 39, Ratan Lal vs State of Rajasthan

    (2018 SCC Online Raj 1490, para 33) Raj Roop Singh vs State

    of Haryana (2011 SCC Online P&H 16725), Simranjeet Singh

    Vs State of Punjab 2024) 14 SCC 222, Yusuf Vs State (2024) 14

    SCC 217, Bothilal Vs NCB 2023 SCC Online SC 498, Nicholas

    Nzube Vs NCB (BA no 2708/2022), Sunil Vs State of NCT of

    Delhi (BA 1688/2022) and Noor Aga vs State Of Punjab & Anr

    2008 AIR SCW 5964.

    13. The learned SSC for the DRI submitted that the

    samples were taken on 18.05.2012, that is, on the day of the

    incident itself, which was a Friday. Saturday and Sunday are

    holidays for the DRI and hence the material objects/case property

    was deposited in the malkhana on the next working day, that is, on

    21.05.2012, which was a Monday. There was no delay in

    depositing the samples, as they were deposited immediately on the

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    next working day. The seized packet was duly sealed with the seal

    of the DRI over paper slips bearing the signatures of the accused

    and the panch witnesses. It was submitted that, so long as the seals

    were found intact, any delay in depositing the case property was

    immaterial, as there was no possibility of fabrication or tampering

    with the case property. The learned SSC further took the Court

    through the records to demonstrate that at no stage was there any

    possibility of tampering with the case property, and that the seals

    remained intact throughout. While placing reliance on the dictum

    in Bharat Aambale v. State of Chhattisgarh, (2025) 8 SCC 452,

    it was submitted that mere non-compliance with the procedural

    requirements of Section 52A of the NDPS Act does not

    automatically vitiate the entire trial or lead to an acquittal. There is

    no infirmity in the impugned judgment calling for an interference

    by this Court, argued the learned SSC for the DRI.

    14. Heard both sides and perused the record.

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    15. The law was set in motion by PW1 on the receipt of

    secret information by PW3. PW1, Assistant Director, DRI HQ,

    New Delhi deposed that on 18.05.2012, PW3 placed before him

    secret information from a reliable source that a person of Punjabi

    origin, aged about 25-26 years, 5 feet 8 inches, of stout build and

    wheatish complexion, driving a white Honda Civic bearing

    registration number DL-4C AH 1455, would be entering Delhi

    through the Singhu Border between 01:00 PM and 02:00 PM and

    that he would be carrying heroin concealed in the car. On receipt

    of the intelligence report, he directed J.P. Raju (PW9) to take

    necessary action. PW1 identified the secret information marked as

    Ext. PW1/A in which he identified his signature as well as the

    signature of PW3 and PW9.

    16. PW3, Appraiser, DRI Headquarters (HQ), deposed that

    upon receiving the aforesaid secret information, he immediately

    reduced the same into writing, that is, Ext. PW1/A and put up the

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    same before J.S. Kandhari (PW1), to whom he was

    administratively subordinate. PW1 instructed J.P. Raju,

    Intelligence Officer (PW9), DRI, HQ, New Delhi to take necessary

    action. At the request of PW9, he joined the raiding team, which

    also consisted of two independent witnesses. The team proceeded

    to the Singhu Border and took positions on the Delhi side. The

    vehicle was intercepted at around 01:30 PM when it was entering

    Delhi from the Haryana side. Sunil Sharma (the accused) was

    found driving the car. The members of the raiding team introduced

    themselves as officers of the DRI. The accused was told about the

    information received and was asked if he was carrying narcotic

    drug, that is, heroin, on his person or in his car, to which he replied

    in negative. PW9 also showed the search authorisation to the

    accused as well as the witnesses. A notice under Section 50 of the

    NDPS Act was served upon the accused, apprising him of his right

    to be searched in the presence of a Magistrate or Gazetted Officer.

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    The accused opted for a search to be conducted in the presence of

    a Gazetted Officer of the DRI. This was endorsed by the accused

    on the body of the notice issued under Section 50. After initial

    hesitation, the accused admitted that he was carrying narcotic drug

    concealed in the vehicle and requested that the search be

    conducted at the office of the DRI. The accused and the vehicle

    were taken to the DRI office, IP Bhawan. In the parking area of the

    building where the office of the DRI is located, in the presence of

    Gazetted Officer B.K. Bannerjee (PW12), the search of the vehicle

    was conducted. A non-woven fabric bag containing polythene

    packets with off-white powder was found under the bonnet of the

    car, over the engine. PW9 also seized some documents from the

    car, namely, photocopy of the RC; one delivery receipt of the car

    dealer association and motor vehicle insurance proposal. PW9 took

    the documents, the aforesaid bag taken from under the bonnet,

    along with the accused, to the seventh floor of the building where

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    the office of the DRI is situated. The bag on examination was

    found to contain heroin. PW3 further deposed that thereafter he

    left the office for some other official work.

    16.1. PW3 in his cross-examination deposed that he received

    the secret information at about 10:00-10:15 AM on 18.05.2012,

    which he immediately reduced into writing. The information so

    recorded, that is, Ext. PW1/A was submitted to PW1, his

    immediate superior at about 10:20-10:25 AM. PW1 did not direct

    him to take any action on the information received. According to

    PW3, PW9, who was junior to him, requested him to join the

    raiding team by about 11:00 AM. The notice under Section 50 of

    the NDPS Act was prepared at the spot. PW3 admitted that he had

    not signed the notice or panchnama or any documents and his

    presence is not reflected in any of the documents prepared. The

    search authorisation was not shown to him, but it was shown to the

    accused. He had orally told the accused that he was a Gazetted

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    Officer and if the latter desired the search could be done in his

    presence. PW3 admitted that in his presence neither the accused

    nor the vehicle had been searched at the spot. The bonnet of the car

    was not opened at the spot.

    17. PW4, the panch witness, deposed that on 18.05.2012,

    while he was standing at the bus stop near ITO waiting for his

    friend, some officials approached him and told him that they had

    received some information relating to transportation of illicit

    article (nasheela padarth) and so he was asked to accompany

    them as a witness, to which he agreed. He accompanied the

    officials to their office situated at ITO, but he was unable recall the

    name of the building. From the office, he was taken by the officials

    to the Singhu Border. Apart from the officials, there was another

    person also with them whose name he was unable to recall. At the

    Singhu Border, they were informed that a vehicle was entering

    Delhi from the Haryana side and the said person carrying nasheela

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    padarth was in the vehicle. The officials intercepted a white-

    coloured vehicle coming from the Haryana side when it entered

    Delhi. PW4 was unable to recall the registration number of the

    vehicle. At the time of interception, there was only the driver

    inside the vehicle. The officials disclosed their identity to the

    occupant of the intercepted vehicle and informed him that they

    wanted to conduct a search. The officials also prepared certain

    documents at the spot and handed them over to the occupant of the

    vehicle. PW3 could not recall the nature of the documents, though

    he had signed them. The officials further conducted inquiries with

    the occupant of the vehicle, who disclosed his name as Sunil (the

    accused). The officials informed Sunil (the accused) that they had

    received information that illicit articles (nasheela padarth) was

    being concealed and transported in the vehicle to Delhi. Sunil (the

    accused) responded by saying that if a search was to be conducted,

    the same could be carried out at the office of the DRI. PW4

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    identified the accused before the trial court. The officials escorted

    the accused from the spot to their office situated at ITO along with

    the vehicle, at which time he also accompanied them. Upon

    reaching the parking area of the building where the office of the

    officials was situated, a search of the vehicle was conducted.

    During the search, a cloth packet was recovered from the engine of

    the car. Certain documents were also recovered from the vehicle.

    The officials then took the cloth packet, the documents, and the

    accused to their office on the seventh floor of the building. He also

    accompanied them. The officials examined the cloth packet and

    found a light-coloured white powder concealed therein, from

    which a pungent smell (tikhi gandh) was emanating. The officials

    conducted some testing of the powder and informed him that it

    was nasheela padarth. The officials took samples from the

    contraband, but he was unable to recall how many samples had

    been taken. The officials sealed the remaining contraband

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    substance as well as the samples. They also affixed a seal (mohar)

    on the sealed contraband. The officials prepared certain documents

    recording the proceedings in which he signed. Apart from him,

    there was another witness during the proceedings who had also

    signed the documents prepared. PW3 identified his signature in

    Ext. PW4/A search authorisation; Ext. PW4/B notice under

    Section 50 of the NDPS Act; Ext. PW4/C panchnama dated

    18.05.2012; Ext. PW4/D1 to PW4/D4 annexures of the

    panchnama and Ex. PW4/E and PW4/F test memos. The contents

    of the panchnama were read over to him, after which he affixed

    his signature on them. On a request made on behalf of the DRI to

    put some leading questions, the trial court allowed the same. On

    further examination by the prosecutor, PW3 admitted that on

    18.05.2012, two samples had been drawn by the officials from the

    seized contraband, which were sealed separately. He also admitted

    that the registration number of the vehicle intercepted is DL-4C

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    AH 1455. PW4 more or less stood by his version in the cross

    examination.

    18. PW9, IO, DRI Headquarters, New Delhi, deposed that

    on 18.05.2012, J.S. Kandhari (PW1) informed him about the secret

    information received. PW1 gave him written directions to take

    necessary action. Pursuant to the same, he discussed the matter

    with B.K. Bannerjee, the then Senior Intelligence Officer (SIO)

    (PW12), constituted a raiding team comprising PW3; Rajpal

    Singh, IO and Ashok Kumar, Tax Assistant. Two independent

    witnesses, namely, Deepak (PW4) and Manoj, were also included

    in the team. After the team was constituted, he collected the seal

    with the impression “Directorate of Revenue Intelligence 10”

    (DRI-10) from B.K. Bannerjee (PW12) after making entry in the

    seal movement register. He also collected the search authorisation

    for the search of the vehicle from PW12, that is, Ext. PW4/A. At

    about 11:30 AM, the raiding team, including the independent

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    witnesses, left the office and reached the Singhu Border at around

    12:30 PM. At about 1:30 PM, the vehicle was spotted and

    intercepted. The driver who matched the description in the

    information received, disclosed his name as Sunil Sharma (the

    accused). They also disclosed their identity to the driver. In the

    presence of the independent witnesses, he asked the accused

    whether he was carrying any narcotic drugs on his person or in his

    vehicle, to which the latter answered in the negative. He informed

    the accused about the secret information and showed the latter Ext.

    PW4/A search authorisation. He then prepared and served notice

    under Section 50 on the accused, informing the latter of his legal

    right to get his personal search or the search of his vehicle

    conducted before a Magistrate or a Gazetted Officer. The accused

    replied that the search of his person or the search of his vehicle

    should be conducted in the presence of a Gazetted Officer of DRI.

    The said reply was given by the accused in writing, and an

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    Signed By:KOMAL
    DHAWAN
    Signing Date:07.05.2026
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    endorsement to the said effect was made in Ext. PW4/B notice in

    the presence of the witnesses. After some hesitation, the accused

    admitted that a packet of heroin had been concealed inside the

    bonnet of the car and requested that the search be conducted at the

    DRI office. Therefore, he escorted the accused and the vehicle to

    the office.

    18.1. In the parking area of the office of the DRI, he called

    PW12, a Gazetted Officer, and informed the latter about the

    interception of the accused and the reply/willingness given by the

    accused on the notice under Section 50 of the NDPS Act. He

    conducted the search of the vehicle of the accused in the presence

    of PW12 and both the witnesses. On search of the said vehicle, a

    bag/packet of ‘matiala colour’, which contained a polythene

    packet, was recovered from under the bonnet. He also recovered

    some documents from inside the car relating to the vehicle, the

    details of which were recorded by him in the panchnama prepared

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    Signature Not Verified
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    DHAWAN
    Signing Date:07.05.2026
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    by him. After the recovery of the documents and the packet, they

    proceeded to their office along with the accused. He conducted a

    personal search of the accused in the office of the DRI, but nothing

    incriminating was recovered. He then conducted a detailed

    examination of the seized packet. Upon examination of the bag, he

    found a heat-sealed transparent polythene packet containing a cloth

    bag bearing certain rubber stamp markings. On opening the cloth

    bag, he found another heat-sealed transparent polythene packet.

    Upon further examination, it was found to contain an off-white

    granular/powdery substance emitting a pungent smell. A pinch of

    the powdered substance was taken and tested with the help of a

    Narcotic Drug Detection Kit, which gave a positive result for

    heroin. The contraband on weighing was found to have a net

    weight of 1 kg. He seized the contraband along with the non-

    woven bag and the vehicle used for transportation. He drew two

    samples of 5 grams each from the seized substance, which were

    CRL.A. 356/2016 Page 25 of 67

    Signature Not Verified
    Signed By:KOMAL
    DHAWAN
    Signing Date:07.05.2026
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    kept separately in zip-lock polythene packets and then placed in

    separate yellow paper envelopes bearing corresponding markings

    and the seal of DRI-10, along with paper slips bearing signatures

    of the accused, witnesses, and himself. After drawing the samples,

    the remaining contraband was repacked in its original packaging

    and placed in an off-white cloth bag, which was stitched and

    sealed with the DRI-10 seal over paper slips bearing signatures of

    all concerned. The sealed packet and bag were then kept in an

    airtight plastic container, wrapped in cloth, stitched, and sealed in

    a similar manner. During the proceedings, he prepared test memos

    affixed with facsimile impressions of the seal, which was signed

    by him, the accused, and both the witnesses. He also prepared a

    panchnama recording the search and seizure proceedings,

    appended with the facsimile of the seal. The contents were read

    over in vernacular to the accused and witnesses, after which it was

    signed by all concerned. After completion of the panchnama

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    proceedings, he handed over the sealed case property, samples and

    test memos to K.K. Sood (PW10) for safe custody. On the same

    day, he served summons under Section 67 of the NDPS Act to the

    accused. In response to the summons, the accused tendered his

    voluntary statement under Section 67 of the NDPS Act in his own

    handwriting. After recording the statement, he arrested the accused

    and intimation of his arrest was given to the wife of the latter. On

    19.05.2012, he submitted his report under Section 57 of the NDPS

    Act to PW12.

    18.2. PW9 in his cross-examination, deposed that the initial

    investigation into the case was conducted by him and upon his

    transfer, the investigation was taken over by PW2, IO, DRI, HQ,

    New Delhi. According to PW9, the accused himself had requested

    that, since the place of interception was a busy public area and not

    safe for him, he be taken to the office of the DRI for the search. As

    far as he can recollect, the accused made an endorsement to the

    CRL.A. 356/2016 Page 27 of 67

    Signature Not Verified
    Signed By:KOMAL
    DHAWAN
    Signing Date:07.05.2026
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    said effect on the Section 50 notice. PW9 further deposed that after

    the accused was arrested at about 11:30 PM on 18.05.2012, the

    latter was examined at the RML hospital and thereafter kept in

    ‘rahadari’ at the Daryaganj police station. The custody of the

    accused was again taken on 19.05.2012, and again he was

    examined at the RML hospital. Thereafter, the accused was

    produced before the Court, pursuant to which he was remanded to

    judicial custody.

    19. PW12, the then Senior Intelligence Officer (SIO), DRI,

    HQ, New Delhi, deposed that on 18.05.2012 PW9 had shown him

    Ext. PW1/A secret information and that he had a discussion with

    the latter. He also saw the directions given by PW1 to PW9. On

    the request of PW9, he issued Ext. PW4/A search authorisation for

    the search of the vehicle bearing no. DL-4C AH 1455. As

    requested by PW9, he had also handed over the seal of the DRI,

    having the impression of DRI-10 to the former. While issuing the

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    seal, he made an entry at serial no. 38 in the seal movement

    register and had signed in the register along with PW9. PW12

    supported the version of PW9 regarding the search and seizure.

    PW12 further deposed that PW9 had returned the seal of the DRI

    on the very same date, which has been recorded at serial no. 38 of

    Ext. PW12/A seal movement register. On 21.05.2012, he issued

    the seal of the DRI to Ajay Bhasin (PW2) for the purpose of

    appending the facsimile of the same on the deposit memo for

    depositing the case property in the godown. The seal of the DRI

    was returned by PW2 on the same day. Entries to this aspect were

    made in the seal movement register, which was signed by him as

    well as PW2.

    20. PW10, then Deputy Director, DRI, HQ, New Delhi

    deposed that on 18.05.2012 at about 06:00-06:15 PM, J. P. Raju

    (PW9) handed over one sealed packet containing the remaining

    case property seized by the latter as well as one sealed sample in

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    Signature Not Verified
    Signed By:KOMAL
    DHAWAN
    Signing Date:07.05.2026
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    duplicate (total two in number) to him for keeping in safe custody

    along with test memo in duplicate. On 21.05.2012, he had handed

    over one sealed sample along with test memo to S. K. Bhalla

    (PW8) for producing it before the CRCL for chemical analysis. He

    had also given PW8 Ext. PW8/A authorization letter dated

    21.05.2012 addressed to the Chemical Examiner, CRCL, after

    attesting the latter’s signature. He was informed that the sample

    was deposited by PW8 in the CRCL on the same day, and on his

    directions, the receipt of the same was kept on the investigation

    file. On 21.05.2012, on his directions, PW2 prepared Ext. PW2/A

    inventory memo/deposit memo for depositing the sealed case

    property which was in his possession at the Valuable Godown,

    New Custom House, near IGI Airport, New Delhi. Ext. PW10/A

    letter dated 21.05.2012 addressed to Deputy Commissioner

    (Disposal), New Custom House was also issued by him in this

    regard. PW2 deposited the same at the godown and the receipt of

    CRL.A. 356/2016 Page 30 of 67

    Signature Not Verified
    Signed By:KOMAL
    DHAWAN
    Signing Date:07.05.2026
    15:03:56
    the godown-in-charge is Ext. PW2/A. This receipt bears his

    signature as well as the signature of PW2. The case property and

    the samples were intact when it remained in his custody. After

    depositing one sample packet in CRCL, he handed over the

    duplicate sample to PW9 in sealed condition.

    20.1. PW10 in his cross-examination, admitted that he had

    not maintained any register regarding the deposit of case property,

    sample and test memo and their further submission with the CRCL

    and with New Custom House Godown. He denied the suggestion

    that the samples and case property had not deposited with him or

    that he was not empowered to receive the case property. He denied

    the suggestion that the sample had not been sent on 21.05.2012 to

    the CRCL or that the seal on the same was not intact or that his

    signature in all the documents had been obtained in a routine

    manner or that they had been manipulated or fabricated at later

    stage.

    CRL.A. 356/2016 Page 31 of 67

    Signature Not Verified
    Signed By:KOMAL
    DHAWAN
    Signing Date:07.05.2026
    15:03:56

    21. PW2 IO, DRI, HQ, New Delhi deposed that on

    21.05.2012, he was directed by K.K.Sood, Deputy Director, DRI

    (PW10) to deposit the sealed case property in the Valuable

    Godown, New Custom House, IGI Airport, New Delhi. On the

    directions of PW10, he prepared Ext. PW2/A deposit memo.

    Accordingly, he had taken the sealed case property to the godown

    and the same was deposited with the in-charge of the godown and

    the acknowledgement of the latter received in Ext. PW2/A deposit

    memo. After completion of investigation in the case, he had filed

    the complaint before the Court.

    22. I shall also make a brief reference to the testimony of

    the accused who offered himself as a witness and hence was

    examined as DW1. DW1 deposed that on 18.05.2012, he was

    returning home situated at Sant Nagar and when he reached near

    his residence on the main road, a Qualis car stopped near him, and

    about 5 to 6 persons alighted from it. They enquired his name and

    CRL.A. 356/2016 Page 32 of 67

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    Signed By:KOMAL
    DHAWAN
    Signing Date:07.05.2026
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    other family details. He was made to sit in their vehicle and taken

    to an office at ITO on the seventh floor, where he was informed

    that they were officials of the DRI. They asked him whether he

    owned a vehicle bearing registration No. DL-4CAH-1455, which

    he denied. However, they told him that drugs had been recovered

    from the said vehicle. He denied having any connection with the

    said vehicle. He was made to sign several papers. He was tortured

    and forced to sign the documents. He wrote a statement which was

    dictated to him by the officers. DW1 asserted that no seizure or

    sealing proceedings had been conducted in his presence. On

    19.05.2012, he was produced before the Court, from where he was

    sent to jail. The officials of the DRI did not allow him to speak in

    Court. On 21.05.2012, while lodged in jail no. 4, he retracted the

    statement he was made to write by the officials and submitted the

    original to the Legal Cell, retaining a photocopy. The said

    retraction has been marked as Ext. DW1/A, which, according to

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    DHAWAN
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    DW1, is in his handwriting, and he identified his signature in the

    same.

    22.1. DW1, in his cross-examination, admitted that his

    family was residing on rent in House No. 6, Gali No. 7, near Sant

    Hospital, Sant Nagar, New Delhi. Earlier, he had resided at 231/9,

    Chandan Vihar, Nehru Gali, Sant Nagar, which was also a rented

    premise. He denied that the said property stands in the name of his

    mother. DW1 was unable to say whether his sister Pooja and her

    husband Vijay were residing at the said address on 18.05.2012 or

    whether any search had been conducted in the said residence by

    the officials of the DRI. He also was unable to say whether any

    incriminating material had been seized from the said premises.

    DW1 when shown document Ex. PW4/D-2 (insurance of Honda

    Civic car No. DL 4 CAH 1455), acknowledged that it bore the

    name Sunil Sharma and the address 231, Gali No. 9, Chandan

    Vihar, Sant Nagar, Burari, New Delhi, and that it was dated

    CRL.A. 356/2016 Page 34 of 67

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    Signed By:KOMAL
    DHAWAN
    Signing Date:07.05.2026
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    15.05.2012. However, he stated that he was not aware as to who

    had filled the form and that it did not belong to him. He admitted

    his name and details on the carbon copy of the delivery receipt

    marked as Ext. PW4/D-1 and that it bore his signature, but

    maintained that the same was obtained under pressure. He denied

    having purchased the vehicle or that it was registered in his name.

    He also denied the suggestion that he had been intercepted at the

    Singhu Border while driving the said vehicle or that he had been

    found in possession of contraband. He further denied having been

    served with any notice under Section 50 of the NDPS Act.

    However, upon being shown Ext. PW4/B Section 50 notice, he

    admitted that the reply portion was in his handwriting and bore his

    signature. He also admitted his signature on Ext. PW4/A search

    authorisation. He denied the suggestion that any contraband had

    been recovered from the engine of the vehicle, or that any search

    had been conducted in his presence, or that any panchnama

    CRL.A. 356/2016 Page 35 of 67

    Signature Not Verified
    Signed By:KOMAL
    DHAWAN
    Signing Date:07.05.2026
    15:03:56
    proceedings were carried out before him. However, when shown

    Ext. PW4/C panchnama and annexures, he admitted his signature

    in the same but maintained that the proceedings were not

    conducted in his presence. He denied the entire prosecution case of

    interception, search and recovery. DW1 admitted that when he was

    produced before the Court for the purpose of remand, he had not

    made any complaint of torture or false implication.

    23. The primary question for determination is whether the

    prosecution has proved that the contraband was recovered from the

    conscious possession of the appellant and whether the mandatory

    procedural safeguards were complied with. The appellant stands

    convicted for the offence punishable under Section 21(c) of the

    NDPS Act. To bring home a conviction under the said provision,

    the prosecution is required to establish (i) recovery of a narcotic

    drug or psychotropic substance; (ii) that such recovery was from

    the conscious possession of the accused; and (iii) that the quantity

    CRL.A. 356/2016 Page 36 of 67

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    Signed By:KOMAL
    DHAWAN
    Signing Date:07.05.2026
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    involved constitutes commercial quantity. Upon proof of

    possession, the statutory presumption under Sections 35 and 54 of

    the NDPS Act operates, unless rebutted by the accused. In the case

    on hand, the recovery alleged is of one kilogram of heroin, which

    is apparently commercial quantity.

    24. According to the learned counsel for the

    appellant/accused, there has been gross violation of the provisions

    of Section 52A of the NDPS Act and the various clauses of S.O.

    1/89 causing great prejudice to the accused. On the other hand, it

    was submitted by the learned SSC for the respondent/DRI that

    there has been substantial compliance of the provisions and that

    the materials on record would show that no tampering of the

    material objects/case property had taken place at any point of time.

    The case property was always in the custody of officers

    empowered under the Act and that there has been substantial

    compliance of all the provisions of the Act, Rules and the Standing

    CRL.A. 356/2016 Page 37 of 67

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    DHAWAN
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    Orders.

    25. Section 52A of the NDPS Act lays down a

    comprehensive procedure for the disposal of seized narcotic drugs

    and psychotropic substances. Sub-section (1) empowers the

    Central Government to prescribe the manner in which such

    substances are to be disposed of. Sub-section (2) provides that the

    officer in charge of the police station or the officer authorised

    under Section 53, who has seized the substances, shall prepare an

    inventory of the seized material. The inventory must include

    details such as the description, quantity, mode of packing

    (including the mode of conveyance being used such as any

    vehicle), identifiable marks or numbers, country of origin and

    other particulars as necessary of the substances so seized. This

    inventory is to be forwarded to the Magistrate having jurisdiction

    over the case by way of an application. Under sub-section (3), the

    Magistrate, upon receiving the application, is required to certify

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    DHAWAN
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    the correctness of the inventory so prepared. The certification

    process involves taking photographs of the original seized

    substances (including the mode of conveyance being used such as

    any vehicle), verifying the correctness of the inventory prepared

    against the same, and thereafter drawing representative samples in

    the presence of the Magistrate, which are then sealed and its details

    are entered into a list which is certified by the Magistrate. These

    certified samples, along with the inventory and photographs, are

    admissible as evidence during trial under sub-section (4) and are to

    be treated as primary evidence.

    26. In Bharat Aambale (supra), the Apex court after

    referring to the several precedents on the point including Union of

    India v. Mohanlal, 2016 ICO 558, held that mere non-compliance

    of the procedure under Section 52A of the NDPS Act or the

    standing order(s)/rules thereunder will not be fatal to the

    prosecution case unless there are discrepancies in the physical

    CRL.A. 356/2016 Page 39 of 67

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    Signed By:KOMAL
    DHAWAN
    Signing Date:07.05.2026
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    evidence rendering the prosecution’s case doubtful, which may not

    have been there, had such compliance been done. Courts must take

    a holistic and cumulative view of the discrepancies that exist in the

    evidence adduced by the prosecution and appreciate the same more

    carefully keeping mind the procedural lapses. If the remaining

    materials on record adduced by the prosecution, oral or

    documentary inspire confidence and satisfy the court as regards the

    recovery as well as conscious possession of the contraband from

    the accused persons, then even in such cases, the courts can

    without hesitation proceed to hold the accused guilty

    notwithstanding any procedural defect in terms of Section 52A of

    the NDPS Act. Non-compliance or delayed compliance of the said

    provision or rules there under may lead the court to draw an

    adverse inference against the prosecution. However, no hard and

    fast rule can be laid down as to when such inference may be

    drawn, and it would all depend on the peculiar facts and

    CRL.A. 356/2016 Page 40 of 67

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    DHAWAN
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    circumstances of each case. Where there has been lapse on the part

    of the police in either following the procedure laid down in Section

    52A of the Act or the prosecution in proving the same, it will not

    be appropriate for the court to resort to the statutory presumption

    of commission of an offence from the possession of illicit material

    under Section 54 of the Act, unless the court is otherwise satisfied

    as regards the seizure or recovery of such material from the

    accused persons from the other material on record.

    27. In Surepally Srinivas vs The State Of Andhra

    Pradesh arising out of SLP (Crl.) No. 14265 OF 2024 dated

    25.03.2025, it has been held that what is to be seen is whether

    there has been substantial compliance with the mandate of Section

    52-A and if not, the prosecution must satisfy the court that such

    non-compliance does not affect its case against the accused.

    28. In the case on hand, an application under Section 52A

    of the NDPS Act is seen moved before the trial court on

    CRL.A. 356/2016 Page 41 of 67

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    Signed By:KOMAL
    DHAWAN
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    16.10.2012. The order of the trial court dated 17.12.2012 in the

    application reads thus:-

    ” The present proceeding are being held pursuant to an
    application moved under section 52 (A) of NDPS Act, which
    was assigned to the undersigned vide order of Ld. ACMM
    dated 16.10.2012.

    Today the IO is present with the case property and the
    accused has been produced from JC. The IO has produced
    before me a round shape box sealed in a white cloth which is
    wrapped on the said box. The seal with which this round
    shape box is sealed are of Directorate of Revenue
    Intelligence 10. The seals have been affixed on the stitching
    portion of the cloth with which this box was wrapped with.
    There are 7 seals in total affixed on the pullanda. All seals of
    Directorate of Revenue Intelligence 10 are intact and there is
    one paper slip affixed under the three lakh seals of
    Directorate of Revenue Intelligence 10. The contents of the
    same cannot be taken out without breaking open the seals
    and the stitching of the cloth. The white cloth with which this
    box is wrapped contain particulars i.e. DRI. F.
    No.338/XVIII/40/2012, seizure of 1 Kg of heroin on

    CRL.A. 356/2016 Page 42 of 67

    Signature Not Verified
    Signed By:KOMAL
    DHAWAN
    Signing Date:07.05.2026
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    18.05.2012 in Delhi by DRI (Hqrs.), SO Sh. J.P. Raju, V.G.E.
    No./04(01)12-13.

    The pullanda has been photographed today. Four
    photographs have been taken by Sh. Ajay Bhasin, IO in my
    presence. The photographs have been taken from 3 angles,
    one from the front, one each from two sides. One more
    photograph has been taken of paper slip containing some
    signatures. IO is directed to place the copy of photographs
    today itself during the course of day.

    Now the intact seals are broken in the court to take out the
    box and the paper slip containing some signatures is taken
    out and the same has been exhibited as Ex. P1. It has been
    counter signed by me today at this stage. On opening the
    pullanda a plastic round shape box with green cover and
    transparent lower box is revealed. The box is containing one
    non-woven empty bag which has alphabet “A” written on it.
    Same is now photographed by the IO. The box is further
    found containing one sealed pullanda bearing numerical “1”.

    the pullanda has been photographed by the IO. Two
    photographs have been taken, one where numerical “1” is
    appeared and other at the place where the mouth of the
    pullanda is sealed. The pullanda is sealed with three seals of
    Directorate of Revenue Intelligence 10. Underneath the seal

    CRL.A. 356/2016 Page 43 of 67

    Signature Not Verified
    Signed By:KOMAL
    DHAWAN
    Signing Date:07.05.2026
    15:03:56
    there is a paper slip. The said pullanda is now open by
    breaking the seals. The paper slip containing some signatures
    which is now revealed on opening the seal is hereby Ex. P2.
    Same has now been countersigned by me. The pullanda so
    opened contain a transparent plastic envelope/polythene
    bearing the numerical “1”, same has now been photographed
    by the IO. Inside the plastic envelope/polythene is a white
    cloth bag containing numerical “1” and rubber stamp
    markings. Same has now been photographed by the IO. Three
    photographs have been taken. Inside the cloth bag there is a
    plastic envelope/polythene containing off white powder/
    granules substance and the said polythene/envelope is
    already cut open from one side. The said envelope/polythene
    also contain numerical “1”. Same has now been
    photographed by the IO.

    At this stage IO has drawn 5 gram of the off white powder/
    granules from the said polythene/ envelope by measuring the
    same in a electronic weighing scale and kept it in a zip lock,
    transparent polythene pouch which has now been kept in
    yellow paper envelope. The paper envelope has been now
    sealed with the court seal having initial “GR” and the case
    particulars have been mentioned on the same by the
    undersigned along with date.

    CRL.A. 356/2016 Page 44 of 67

    Signature Not Verified
    Signed By:KOMAL
    DHAWAN
    Signing Date:07.05.2026
    15:03:56
    At this stage the material has been put back/repacked in the
    same manner by the IO. The box has been kept in the same
    pullanda and has been sealed with the seal of “GR”.

    The proceedings stand concluded.

    Photocopy of the panchnama proceedings conducted today is
    compared with the description mentioned in the photocopy of
    the panchnama annexed with the application u/s 52A NDPS
    Act. The said description of the case property is mentioned at
    page no. 3 and 4 of panchnama, which it is certified by the
    undersigned.

    Ahlmad is directed to send the proceedings in sealed cover
    through ld. ACMM to the concerned court immediately.”

    (Emphasis supplied)

    29. No inventory as contemplated under Section 52A(2) of

    the NDPS Act is seen submitted by the authorized officer, that is,

    PW10, when the case property/material object was produced

    before the magistrate concerned. In the order of the magistrate, a

    panchnama annexed to the application under Section 52A as well

    as a panchnama prepared on 17.12.2012 have been referred to. But

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    neither the application under Section 52A nor the panchnama are

    before this Court. What was the quantity that was produced before

    the Magistrate is unclear. The order also does not refer to quantity

    produced or the quantity that remained after the sample was

    drawn. The materials also do not show as to what happened to the

    third sample that was drawn in the presence of the Magistrate

    concerned. Going by the provisions of Section 52A, an application

    under the Section has to be moved at the earliest possible

    opportunity. The seizure in this case took place on 18.05.2012.

    However, the application under Section 52A was moved before the

    Magistrate concerned on 16.10.2012, after delay of about five

    months, for which no explanation has been given. Therefore, it is

    clear that the provisions of Section 52A have not been strictly

    complied with. However, as held by the Apex Court in Bharat

    Aambale (supra), mere non-compliance of the provisions of

    Section 52A does not automatically lead to the acquittal of the

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    accused. Therefore, I will consider whether the remaining

    materials on record are satisfactory to find the guilt of the accused

    beyond reasonable doubt.

    30. The seizure is stated to have been effected on

    18.05.2012 between 01:00 – 02:00 PM, which was a Friday. The

    learned SSC for the respondent/DRI submitted that as 19.05.2012

    and 20.05.2012 were holidays for the DRI being Saturday and

    Sunday, the deposit of the material objects/case property was made

    on the next working day, that is, on 21.05.2012, Monday. But on

    18.05.2012 itself, PW9 had handed over the seized articles,

    samples and test memos to PW10. This is disputed by the learned

    counsel for the appellant/accused, who contended that there was a

    delay of 03 days in depositing the seized materials in the

    malkhana, which delay has not been explained. There are no

    materials on record to show in whose custody the samples drawn

    remained for 03 days till it was sent to the FSL. The samples, the

    CRL.A. 356/2016 Page 47 of 67

    Signature Not Verified
    Signed By:KOMAL
    DHAWAN
    Signing Date:07.05.2026
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    seal, the seizure memo, the facsimile seal etc. were never

    deposited in the malkhana. The seal at all times continued to

    remain with the raiding team. These aspects are in gross violation

    of S.O. 1/89. In support of the arguments, reference was made to

    the dictums in Noor Aga (supra) and Raj Roop Singh (supra).

    31. Section 52(3) of the NDPS Act mandates that every

    article seized shall be forwarded without unnecessary delay either

    to (a) the officer-in-charge of the nearest police station, or (b) to an

    officer empowered under Section 53. Admittedly, the first option

    was never exercised. The question that arises for consideration is

    whether PW10 to whom PW9 is stated to have handed over the

    material objects/case property was an officer duly empowered

    under Section 53 of the NDPS Act. As per Section 53 of the NDPS

    Act, the Central Government, in consultation with the State

    Government, may issue a notification in the Official Gazette

    authorising officers from departments such as central excise,

    CRL.A. 356/2016 Page 48 of 67

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    narcotics, customs, revenue intelligence, or other Central

    Government agencies, including paramilitary or armed forces, to

    exercise the powers of an officer-in-charge of a police station for

    the purpose of investigating offences under the NDPS Act. The

    State Government can issue a notification in the Official Gazette

    investing any officer of the department of drugs control, revenue

    or excise or any other department or any class of such officers with

    the powers of an officer-in-charge of a police station for the

    investigation of offences.

    32. PW10 admittedly is an officer of the DRI. Notification

    S.O. 822(E) dated 14.11.1985 issued by the Ministry of Finance

    (Department of Revenue) reads thus:

    “S.O. 822(E).-

    In exercise of the powers conferred by sub- section (1) of
    section 42 and section 67 of the Narcotic Drugs and
    Psychotropic Substances Act, 1985 (61 of 1985), the
    Central Government hereby empowers the officers of and
    above the rank of Sub-Inspector in the department of

    CRL.A. 356/2016 Page 49 of 67

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    Narcotics and of and above the rank of Inspector in the
    departments of Central Excise, Customs and Revenue
    Intelligence and in Central Economic Intelligence Bureau
    and Narcotics Control Bureau to exercise of the powers
    and perform the duties specified in section 42 within the
    area of their respective jurisdiction and also authorises
    the said officers to exercise the powers conferred upon
    them under section 67.”

    (Emphasis Supplied)
    32.1. Notification S.O.823(E), also dated 14.11.1985, issued

    by the Ministry of Finance (Department of Revenue) reads thus:

    “S.O. 823(E).-

    In exercise of the powers conferred by sub- section (1) of
    section 53 of the Narcotic Drugs and Psychotropic
    Substances Act, 1985 (61 of 1985), the Central
    Government, after consultation with all the State
    Governments hereby invests the officers of and above the
    rank of Inspector in the Departments of Central Excise,
    Narcotics, Customs and Revenue Intelligence and in
    Central Economic Intelligence Bureau and Narcotics
    Control Bureau with the powers specified in sub-section
    (1) of that section.”

    (Emphasis Supplied)

    CRL.A. 356/2016 Page 50 of 67

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    32.2. The aforesaid notifications dated 14.11.1985 were

    superseded by the following notifications issued by the Ministry of

    Finance (Department of Revenue) on 30.10.2019:

    “S.O. 3901(E).–

    In exercise of the powers conferred by sub-section (1) of
    section 42 and section 67 of the Narcotic Drugs and
    Psychotropic Substances Act, 1985 (61 of 1985), and in
    supersession of the notification of the Government of
    India in the Ministry of Finance, Department of Revenue
    number S.O. 822(E), dated the 14th November, 1985,
    published in the Gazette of India, Extraordinary, Part II,
    Section 3, Sub-section (ii), except as respects things done
    or omitted to be done before such supersession the
    Central Government hereby empowers the officers of and
    above the rank of sub-inspector in Central Bureau of
    Narcotics and Junior Intelligence Officer in Narcotics
    Control Bureau and of and above the rank of inspectors
    in the Central Board of Indirect Taxes and Customs,
    Directorate of Revenue Intelligence, Central Economic
    Intelligence Bureau to exercise the powers and perform
    the duties specified in section 42 within the area of their
    respective jurisdiction and also authorise the said officers

    CRL.A. 356/2016 Page 51 of 67

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    to exercise the powers conferred upon them under section

    67.”

    ***
    “S.O. 3899(E).–

    In exercise of the powers conferred by sub-section (1) of
    section 53 of the Narcotic Drugs and Psychotropic
    Substances Act, 1985 (61 of 1985) and in supersession of
    the notification of the Government of India in the
    Ministry of Finance, Department of Revenue number S.O.
    823(E), dated the 14th November, 1985, published in the
    Gazette of India, Extraordinary, Part II, Section 3, Sub-
    section (ii), except as respects things done or omitted to
    be done before such supersession, the Central
    Government after consultation with all the State
    Governments hereby invests the officers of and above the
    rank of inspectors in the Central Board of Indirect Taxes
    and Customs, Central Bureau of Narcotics, Directorate
    of Revenue Intelligence, Central Economic Intelligence
    Bureau and of and above the rank of Junior Intelligence
    Officer in Narcotics Control Bureau with the powers
    specified in sub-section (1) of that section.”

    (Emphasis Supplied)

    CRL.A. 356/2016 Page 52 of 67

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    33. The aforementioned notifications indicate that the

    powers under Section 53 of the NDPS Act has been vested in

    officers of and above the rank of inspectors in the DRI. Nobody

    has a case that PW10 is not an officer above the rank of Inspector

    in the DRI. Thus, PW10 is an officer empowered under Section 53

    of the NDPS Act and hence, he had the authority under Section

    52(3) to receive the case property/material objects from PW9.

    34. According to PW9, after the seizure of 1 kg of heroin,

    two samples of 5 grams each were taken and the packets

    containing the samples were sealed. The packet containing the

    remaining contraband was also packed and sealed and handed over

    to PW10 on 18.05.2012 itself. PW10 also asserted that the case

    property/material objects had been handed over to him by PW9 on

    18.05.2012 at about 06:00-06:15 p.m.

    35. The learned SSC for the respondent drew my attention

    to Ext. PW11/A letter dated 21.05.2012 given by PW10 to the

    CRL.A. 356/2016 Page 53 of 67

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    Deputy Commissioner (Disposal), New Custom House, New Delhi

    and Ext. PW2/A inventory of goods seized and the endorsements

    made therein regarding the receipt of the case property by the

    custodian of custom house, to canvass the point that there has been

    timely deposit of the case property and therefore, there is nothing

    to disbelieve the prosecution case as there was never a scope for

    any tampering.

    36. By virtue of the aforesaid notification, PW10 is

    apparently an officer empowered under Section 53 and hence, an

    officer to whom the contraband after its seizure could have been

    handed over by virtue of Section 52(3)(b). However, there are no

    materials on record to show that PW9 on 18.05.2012 itself had

    handed over the case property/material objects to PW10 apart from

    the oral assertions made by both of them in the box. When the

    learned SSC for respondent/DRI was asked about the same, it was

    submitted that as PW9 and PW10 are officers of the same

    CRL.A. 356/2016 Page 54 of 67

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    department, issuing a receipt or acknowledgment or making

    endorsements regarding receipt of the property by PW10 was quite

    unnecessary or uncalled for.

    36.1. Section 52(3)(b) clearly says that the article seized shall

    be forwarded without unnecessary delay to the officer empowered

    under Section 53. Therefore, it was incumbent on PW9 to hand

    over the case property/material objects without any delay to PW10,

    the officer empowered under Section 53. However, there are no

    materials to show that it was in fact handed over by PW9 to PW10

    on 18.05.2012 itself. I will assume for a moment that oral

    assertions of PW9 and PW10 is sufficient to prove deposit under

    Section 52(3)(b) and then consider the remaining materials also on

    record.

    37. Ext. PW11/A the authorization letter given by PW10 to

    PW2 reads thus –

    “DRI.F.No.338/XVIII/40/2012-GI Dated: 21.05.2012

    CRL.A. 356/2016 Page 55 of 67

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    To

    The Deputy Commissioner (Disposal),
    New Custom House,
    New Delhi.

    Sir,

    Subject: Seizure of 1.000 kg. of Heroin on 18.05.2012 in
    Delhi – deposit of Case Property- reg.

    This Directorate has effected a seizure of off white
    coloured powdery/granular substance weighing 1.000 Kgs (net
    weight) suspected to be Heroin on 18.05.2012. As the DRI is
    not having its valuable godown, you are requested to deposit
    the case property duly sealed in the Customs Valuable
    godown.

    2. The Case Property along with the Deposit Memo are
    being forwarded through Shri Ajay Bhasin, Intelligence
    Officer, DRI (Hqrs.), New Delhi for the same.

    
                                   Yours faithfully,
    
                                   Encl.: As above.                                (K.K. Sood)
                                                                         Deputy Director (G.I.)"
    
    

    37.1. PW2/A the inventory of goods seized/detained reads

    thus –

    
    
    
    
                              CRL.A. 356/2016                                                     Page 56 of 67
    
    
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    Signed By:KOMAL
    DHAWAN
    Signing Date:07.05.2026
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                                      "Inventory of goods seized/detained
    
                                     1 Name and                   Sunil @ Sunil Sharma, R/o H.No. 6,
                                     address of the               Gali No. 7, Near Sant Hospital, Ist
                                     owner                        Floor, Sant Nagar, Delhi.
    
                                                                  Directorate of Revenue Intelligence,
                                     2. By whom seized
                                                                  'D' Block, I.P. Bhavan, I.P. Estate,
                                     (or detained)
                                                                  New Delhi-110002.
    
                                                            Directorate of Revenue Intelligence, 'D'
                              3. Place and date of
                                                            Block, I.P. Bhavan, I.P. Estate, New Delhi-
                              seizure (or detention)
                                                            110002 on 18.05.2012
    
                              4. DRI Case F. No.            338/XVIII/40/2012-GI
    
    
                                            No.                    Detailed description            Estimated
                                S.                      Details
                                             Of                     of goods (package       Qty.   ex-duty /
                                No.                    of goods
                                            pkgs.                         wise)                      value
    
    
                                                                Off white coloured
                                                                powdery/      granular
                                                      Off White substance suspected to
                                                       powdery be Heroin weighing
                                                          /     1.000 kgs. approx. net
                                                                                                    Rs.3.25
                                                      granular weight).One air tight 1.000
                                 1          One                                                      Lac.
                                                      substance plastic      container Kgs
                                                                                                   (approx.)
                                                      suspected wrapped and stitched
                                                        to be   with     off     white
                                                       Heroin. coloured cloth and
                                                                sealed with DRI seal
                                                                No. 10 over and above
    
    
    
                              CRL.A. 356/2016                                                      Page 57 of 67
    
    
    Signature Not Verified
    Signed By:KOMAL
    DHAWAN
    Signing Date:07.05.2026
    15:03:56
                                                               a paper slip bearing
                                                              dated signatures of
                                                              Shri      Sunil,    the
                                                              panchas, and DRI
                                                              Officer, containing 1
                                                              packet of off white
                                                              coloured       powdery/
                                                              granular      substance
                                                              suspected      to    be
                                                              Heroin and repacked
                                                              in the original packing
                                                              and further kept in off
                                                              white coloured cloth
                                                              bags which are duly
                                                              stitched and sealed
                                                              with DRI seal No. 10
                                                              over a paper slip
                                                              bearing           dated
                                                              signatures of Shri
                                                              Sunil, the panchas,
                                                              and DRI Officer. This
                                                              sealed cloths packet
                                                              marked as 1 was kept
                                                              in the said plastic
                                                              container.
    
                                                                                          (Ajay Bhasin)
                                                                                    Intelligence Officer
                                                                                 DRI ( Hqrs.), NewDelhi
    
                              K.K. Sood
    
                              Signature of Deputy Director with date:
    
    
    
    
                              CRL.A. 356/2016                                                 Page 58 of 67
    
    
    Signature Not Verified
    Signed By:KOMAL
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    Signing Date:07.05.2026
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    Received one packages with seals in intact condition as per description
    above.

    V.G. Entry no. OA(01)12-13 Dated 21/05/2012.

    Signature of the Custodian

    Note. The packages should be sealed with seal of the seizing/detaining
    officer and seal of the owner or his authorized representative or that of the
    Gazetted Officer.”

    (Emphasis Supplied)

    38. Ext. PW2/A inventory shows that only one item, that is,

    one packet containing 1 kg of powdery substance suspected to be

    heroin that was handed over by PW10 to PW2 to be deposited at

    the New Custom house, New Delhi. There is no reference to the

    sample packets in the inventory prepared. If PW9 is to be believed

    on 18.05.2012 itself, two samples of 05 grams each had been

    drawn from the one kilogram of the substance seized from the

    appellant/accused. He also speaks about the detailed procedure

    followed by him for drawing the samples, its packing and sealing.

    CRL.A. 356/2016 Page 59 of 67

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    Signed By:KOMAL
    DHAWAN
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    Therefore, after the samples were drawn, there must have been

    total three packets, that is, one packet containing the remaining

    contraband, that is, 990 grams of heroin, and two packets, each

    containing 05 grams each of the sample drawn. These two sample

    packets do not find any mention in the inventory prepared.

    Therefore, the inventory prepared is not in accordance with Sub

    section (2) of Section 52A of the NDPS Act.

    39. According to PW10, on 18.05.2012 at about 06:00-

    06:15 PM, PW9 handed over one sealed packet containing the

    remaining case property seized as well as one sealed sample in

    duplicate (total two in number) along with test memo in duplicate.

    On 21.05.2012, he handed over one of the sealed samples along

    with the test memo in duplicate to PW8 for depositing in the

    CRCL for chemical analysis. After PW8 had deposited one sample

    packet before the CRCL, the remaining sample packet in sealed

    condition, according to PW10 was handed over in sealed condition

    CRL.A. 356/2016 Page 60 of 67

    Signature Not Verified
    Signed By:KOMAL
    DHAWAN
    Signing Date:07.05.2026
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    to PW9. How could PW10 have returned one of the sample

    packets to PW9, when the former was the officer who was the

    officer authorized under Section 52(3)(b) to keep safe custody of

    the contraband including the sample packet. This is yet another

    anomaly seen.

    40. Further, according to PW9, after he seized the

    contraband from the accused, he had drawn two samples of 05

    grams each from the seized substance, which were packed and

    sealed. After drawing the samples, the remaining contraband was

    kept in its original packing and the said packet was put in an off-

    white coloured cloth bag which was stitched and sealed with the

    seal of DRI-10, over and above a paper slip which was signed by

    him, the accused and the two independent witnesses. The sealed

    packet of the remaining contraband and the bag from which it was

    recovered were kept in an air tight plastic container, was wrapped

    with a cloth and the same was then stitched and sealed with the

    CRL.A. 356/2016 Page 61 of 67

    Signature Not Verified
    Signed By:KOMAL
    DHAWAN
    Signing Date:07.05.2026
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    seal of DRI-10, and the seal was also affixed over and above a

    paper slip signed by him, the witnesses and the accused. The

    version of PW9 regarding the seizure and sampling is corroborated

    by the testimony of PW3 and PW4. If that be so, the packet

    containing the remaining contraband after samples were drawn,

    could only have been 990 grams of the contraband seized. But as

    per Ext. PW2/A inventory prepared by PW2 on the directions of

    PW10, the packet containing the residue is stated to contain 1 kg

    of heroin. According to the learned SSC for the respondent, this is

    only an inadvertent mistake on the part of the officer concerned

    who prepared Ext. PW2/A. This aspect was never clarified when

    PW9 and PW10 were in the box. Therefore, this is yet another

    major anomaly seen.

    41. The materials on record show that no proper inventory

    was prepared by PW10 either on 18.05.2012 or on 21.05.2012

    giving the details of the quantity before and after sampling. The

    CRL.A. 356/2016 Page 62 of 67

    Signature Not Verified
    Signed By:KOMAL
    DHAWAN
    Signing Date:07.05.2026
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    packet containing the residue could never have contained 1 kg

    heroin going by version of PW3, PW4 and PW9, as 10 grams had

    already been taken as samples. Even thereafter, when the

    remaining contraband was produced before the magistrate under

    Section 52A of the NDPS Act, no inventory is seen prepared.

    Therefore, it is not clear as to what was the quantity that was

    produced before the magistrate.

    42. An application under Section 451 Cr.P.C. seeking

    permission to destroy the case property was filed by the DRI

    before the trial court. The trial court vide order on sentence dated

    10.03.3016 directed the case property to be confiscated and

    disposed of after the expiry of the period of limitation for filing the

    appeal or subject to the outcome of such appeal or the orders of

    Appellate Court. After the appeal was filed, before this Court, the

    DRI filed CRL.M.A.2167/2017, application under Section 482

    Cr.P.C. seeking permission to destroy the case property,

    CRL.A. 356/2016 Page 63 of 67

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    Signed By:KOMAL
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    representative samples and dispose the vehicle in which it was

    transported. The application was allowed on 23.07.2017 with a

    direction to file a detailed compliance report thereof indicating the

    procedure followed for disposing off the narcotics. As the case

    property has already been destroyed, it is not possible for this

    Court at this stage to call for the same and verify it.

    43. The trial court relied on the confession statement made

    of the accused recorded under Section 67 of the NDPS Act.

    However, in the light of the dictum in Tofan Singh (supra), the

    said statement is inadmissible in evidence and hence, cannot be

    relied on.

    44. The provisions of the NDPS Act and the punishments

    prescribed therein are stringent, the extent of burden to prove the

    foundational facts cast on the prosecution, is more onerous. The

    courts would have to undertake a heightened scrutiny test and

    satisfy itself of “proof beyond all reasonable doubt”. It is a well –

    CRL.A. 356/2016 Page 64 of 67

    Signature Not Verified
    Signed By:KOMAL
    DHAWAN
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    settled principle of criminal jurisprudence that more serious the

    offence, the stricter would be the degree of proof and a higher

    degree of assurance would be necessary to convict an accused.

    (See Balvinder Singh (Binda) v. The NCB, 2023 KHC 6866:

    AIR 2023SC4684; State of Punjab v. Baldev Singh, 1999 (6)

    SCC 172, Ritesh Chakarvarti v. State of M.P., 2006 (12) SCC

    321 and Bhola Singh v. State of Punjab, 2011 (11) SCC 653).

    45. In the light of such unsatisfactory evidence, the benefit

    of doubt will have to be given to the accused and this Court is

    constrained to acquit the accused. As per the present schedule, 250

    grams of heroin is commercial quantity. The seizure in the case on

    hand is stated to be one kilogram of heroin. Heroin is quite a

    dangerous drug and such large quantities of it can destroy entire

    generations. However, it appears that the officials of the DRI have

    not assigned the importance that this case so greatly deserved. It

    also appears that it was only because of such lackadaisical

    CRL.A. 356/2016 Page 65 of 67

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    Signed By:KOMAL
    DHAWAN
    Signing Date:07.05.2026
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    approach and extreme carelessness on the part of the officers

    concerned that the benefit has gone to the appellant/accused. There

    certainly is a strong/grave suspicion against the accused. But

    suspicion, however, strong cannot take the place of proof. Strict

    compliance of the formalities is necessary because of the stringent

    punishment that is provided under the NDPS Act. Whether the

    mistake was intentional or unintentional, the result is disastrous.

    Despite the seizure being a commercial quantity, which is

    supposed to have a value of more than ₹3,00,000/- in the year

    2012, (certainly not a small amount), the culprit goes scot free only

    because of the defects/anomalies committed by the officials

    concerned of the DRI.

    46. It is absolutely necessary that such callous or laidback

    attitude should not be repeated in future. Therefore, a copy of this

    judgment shall be sent to the Chief Secretary, Government of

    N.C.T of Delhi to give necessary instructions to all the officers of

    CRL.A. 356/2016 Page 66 of 67

    Signature Not Verified
    Signed By:KOMAL
    DHAWAN
    Signing Date:07.05.2026
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    the departments concerned to be more careful in the future and to

    strictly comply with the formalities contemplated under the NDPS

    Act to prevent such miscarriage of justice.

    47. In the result, the appeal is allowed. The impugned

    judgment convicting the accused for the offence punishable under

    Section 21(c) of the NDPS Act is set aside. The appellant is

    acquitted under Section 238(1) Cr.P.C. of the offence charged

    against him. He shall be set at liberty and his bail bond shall stand

    cancelled.

    48. Application(s), if any, pending, shall stand closed.

    CHANDRASEKHARAN SUDHA
    (JUDGE)

    MAY 07, 2026
    rs/p’ma/kd/mj

    CRL.A. 356/2016 Page 67 of 67

    Signature Not Verified
    Signed By:KOMAL
    DHAWAN
    Signing Date:07.05.2026
    15:03:56

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