AMIR KHAN @ NAHARU  Vs STATE OF NCT OF DELHI

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IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 27.01 .2021

+ CRL. A. 919/2017 & CRL.M. (BAIL) 1601/2019

MOHD. SHAHID @ MOHD. SAHID …..Appellant

versus

THE STATE OF N.C.T. OF DELHI ….. Respondent
AND
+ CRL. A. 924/2017

AMIR KHAN @ NAHARU …..Appellant

versus

THE STATE OF N.C.T. OF DELHI ….. Respondent

Advocates who appeared in th ese cases:

For the Appellant s : Mr. Sumit Sharma , Advocate .
For the Respondent : Ms. Meenakshi Chauhan, APP for State.

CORAM
HON’BLE MR JUSTICE VIBHU BAKHRU
JUDGMENT
VIBHU BAKHRU, J
1. The appellants have filed the present appeals impugning a
judgment dated 19.07.2017 passed by the Special Judge (NDPS),
South District , Saket Courts, whereby the appellants were convicted
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for the offence punishable under Section 21(c) of the Narcotics, Drugs
and Psychotropic Substances Act, 1985 ( hereafter the ‘ NDPS Act ’).
The Trial C ourt found that the prosecution had established that the
appellants were f ound in possession of commercial quantity of Heroin ,
without any permission or license under the NDPS Act.
2. The appellants also impugn an order on sentence dated
09.08.2017, whereby they were sentenced to ten years of rigorous
imprisonment for the offence punishable under Section 21(c) of the
NDPS Act along with a fine of ₹1 lakh and in default of payment of
fine, to undergo six months of simple imprisonment.
3. The prosecution’s case i s that on 09.06.2011 at about 09:30 am,
SI Rajbir Singh received secret information that two persons namely
Amir Khan (a resident of Madhya Pradesh) and Mohd. S hahid (a
resident of Rajasthan) are engaged in supplying Heroin and they will
supply Heroin to s omeone between 11:30 am and 12:30 pm on the
pavement of I.P. park gate, near bus stop Sarai Kale Khan, Delhi . If a
raid is conducted, the said two persons could be apprehended along
with the contraband. SI Rajbir Singh produced the informant before
Insp Kuldeep Singh, Narcotic Cell at about 09:45 am .After being
satisfied about the information, Insp Kuldeep Singh telephonically
informed ACP Bir Singh, Narcotic Cell who directed further
proceedings. On the directions of Insp Kuldeep Singh, SI Rajbir Si ngh
formed a raiding party consisting of himself, HC Parminder Singh,
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Ct.Kheta Ram, Ct . Jai Prakash and Ct . Sandeep. At about 10:20 am –
after making an entry as DD no. 14 – they all left the office for the
spot in two cars -one government vehicle bearing registration number
DL-1CH-5839 driven by Ct. Jai Prakash, and a private vehicle bearing
registration number DL 7CL 1342 driven by Ct Sandeep. The secret
informer, SI Rajbir Singh, HC Parmender and Ct Kheta Ram travelled
in the government vehicle. They pro ceeded to the spot via Pushta
road, Vikas Marg and reached the gate of I.P. park at about 11:00 am.
Near Ramesh Park bus stop, they asked five public persons to join the
police proceedings, but none agreed, and they all left the spot without
disclosing the ir names and addresses on one or other genuine grounds.
The raiding party parked their vehicles fifty meters ahead of IP park
on the service road towards ITO.
4. SI Rajbir Singh, Ct Kheta Ram and the secret informer took
their positions outside the gate of IP park. At about 11:50 am, two
persons came on foot from the direction of Sarai Kale Khan . They
were carrying bags on their right shoulders. The secret informer
identified the person wearing a cream -coloured shirt, black trousers ,
and, holding a greenish coloured bag as Amir Khan and , the other
person in a white shirt, blue jeans , and holding a black bag , as Mohd.
Sahid. At about 12:00 noon, the said two persons (appellants herein)
were apprehended by the raiding party.
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5. SI Rajbir Singh introduced himself to the apprehended persons
and disclose d that he had information that they were in possession of
Heroin and told them that their search was to be conducted . He also
informed them that if they required, they could be searc hed in the
presence of a Gazetted Officer or a Magistrate . The accused were
informed that they could search the police party and their vehicles as
well. Thereafter, notices under Section 50 of the NDPS Act (Ex.
PW6/A and Ex. PW6/C) were served on the accus ed. The accused
refused to exercise their right to be search ed before a Gazetted Officer
or a Magistrate and wrote their replies (Ex. PW6/B and Ex. PW6/D).
Many persons from the general public had gathered at the spot ,
however, none joined the proceedings despite SI Rajbir Singh
requesting them to do so . SI Rajbir Singh checked the bag of the
accused Mohd. Sahid, which had 3 -4 compartments. The main
compartment had one transparent polythene containing a light brown
(matiala ) coloured substance tied with a rubber band. The rubber band
was removed and some of the substance was removed for checking.
The said material tested positive for Heroin on using the field testing
kit. The recovered polythene bag was weighed and it was fo und to be
2 kg and 200 grams. Two samples of 5 grams each were taken out and
kept in small plastic pouches and were converted into separate cloth
pullandas sealed with the seal of 2BPS NB Delhi . The remaining
Heroin was put back and sealed with the seal of 2BPS NB Delhi.
Accused Amir Khan’s bag was also searched and one transparent
polythene containing a brown ( matiala ) coloured substance was
found, which tested positive for Heroin upon being tested using the
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field testing kit. The said polythene bag weighe d 2 kg. Two samples of
5 grams each were taken out . They were kept in small plastic pouches
and were converted into separate cloth pullandas , each sealed with the
seal of 2BPS NB Delhi . The remaining Heroin was put back and
sealed with the seal of 2BPS NB Delhi.
6. Thereafter, SI Rajbir Singh prepared the rukka (Ex. PW7/B) and
handed over the same along with the pullandas , FSL forms and carbon
copies of the documents , to Ct Kheta Ram at around 3:30 pm with
directions to register an FIR. At about 05:00 pm, ASI Mahender Singh
came to the spot as the investigation was assigned to him. SI Rajbir
Singh handed the custody of the accused persons to him, along with
seizure mem os and notices under Section 50 of the NDPS Act. ASI
Mahender Singh prepared the site plan at the instance of SI Rajbir
Singh (Ex. PW7/A). The appellants were arrested vide arrest memos
(Ex. PW6/H and PW6/K). SI Rajbir Singh prepared the information
under Section 57 of the NDPS Act (Ex. PW4/D) and forwarded the
same to the ACP. The case property, samples, FSL form s with cop ies
of seizure memo were deposited by ASI Mahender Singh in the
malkhan na under entry nos. 1084 and 1085 in Register no. 19. On
21.06.20 11, sample parcels with FSL form s were sent to the FSL,
Rohini . The FSL report (Ex. PW7/E) dated 0 5.08.2011, indicate s that
the exhibits were found to contain Diacetylmorphine.
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7. The accused (the appellants) were charged with the offence
punishable under Section 21(c) of the NDPS Act. The y pleaded not
guilty and the matter was set down for trial. In order to prove its case,
the prosecution examined ten witnesses. Amir Khan and Mohd.
Shahid examined one witnes s each in their defence.
Evidence
8. WHC Rojalia, PS Chanakya Puri, deposed as PW1. She stated
that on 09.06.2011, she was posted at PS Crime Branch, Nehru Place.
On that day and at about 4:10 PM, one rukka was brought by Ct.
Kheta Ram , which was sent by SI Rajbir Singh. On the basis of the
same, she registered an FIR No. 156/11 under Sections 21/29 of the
NDPS Act through computer operator Ct. Gaurav. In her cross –
examination, she denied receiving written instructions to direct the
person who came with the rukka , for registration of the case.
9. HC Parminder, Security, Vinay Marg , Chanakyapuri, deposed
as PW6. He stated that on 09.06.2011, he was present in the office of
the Narcotic Cell and on that day, SI Rajbir Singh under his
supervision had constituted a raiding party consisting of himself , Ct
Kheta Ram, Ct Sandeep and Driver Ct Jai Prakash. He told them that
two persons who are residents of Rajasthan and Madhya Pradesh (the
accused herein) would be coming to IP Park, Sarai Kale Khan after
getting down at Nizamuddin Railway Station between 1 1:30 am to
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12:30 pm to supply Heroin to someone at IP Park. The raiding party
and the secret informer proceeded to the spot in a government vehicle
bearing no. DL -7CL-1342 driven by Ct Sandeep. They left their office
at about 10:20 am and reached IP Marg at about 11:00 am. SI Rajbir
Singh requested 4 -5 public persons standing at Ramesh Park Bus
Stand as well as Sarai Kale Khan Bus Stand to join them however,
none agreed to do so. The raiding party parked their vehicle about 50
meters ahead of IP Park Gate towards ITO side road. At about 11:50
am, two persons came from Sarai Kale Khan side with bags on their
right shoulders. The secret informer informed the raiding party that the
person wearing a cream -coloured shirt and black coloured pants was
Amir Khan an d, the person wearing a white shirt and blue coloured
jeans is Mohd. S hahid. Both accused came and stood in front of the
gate on the pavement and were waiting for someone ( chori chori se
kisi ka intezaar kar rahe the ). They waited for 3 -4 minutes and after
that, they tried to leave the spot but were overpowered by the raiding
party. SI Rajbir Singh thereafter , introduced himself to the accused
persons and told them that their search would be conducted and if they
desired , a Gazetted Officer or a Magistrate could be called and the
search could be conducted in their presence. They were also informed
that they could take a search of the police party and their vehicles.
Separate notices under Section 50 of the NDPS Act were served upon
the accused. It was clearl y stated in the notices that the accused had a
right to be searched in the presence of a Magistrate or a Gazetted
Officer. Both refused their search under the supervision of a Gazetted
Officer or a Magistrate. Since many people had come to the spot, the
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IO requested four-five public persons to join the investigation, but,
none of them agreed and left the spot. SI Rajbir Singh checked the bag
of the accused Mohd. S hahid, which had three -four compartments.
The main compartment had one transparent polythene co ntaining a
light brown ( matiala ) coloured substance tied with a rubber band. The
rubber band was removed and some of the substance was removed for
checking. The said material tested positive for Heroin using the field
testing kit. He stated that when they had left their office, the IO had
taken his bag which contained a field testing kit, electronic weighing
machine and sealing material. Upon being weighed, the said polythene
bag was found to weigh 2 kg and 200 g rams. The IO took two samples
of 5 grams each, stored them in small plastic pouches and converted
them into cloth pullandas sealed with 2BPS NB Delhi and were
marked Sl. No. A and B. The remaining Heroin was put back into the
bag and sealed with the same seal . The FSL form was also filled up by
the IO at the spot and the pullandas were seized vide memo Ex.
PW6/E.
10. He further testified that thereafter, the accused Amir Khan’s
light green coloured bag was also checked. The bag had three zips and
two strings hangi ng from it. One polythene containing a light brown
(matiala ) coloured substance was found tied with a rubber band. The
same was found to be Heroin on being tested by the field testing kit. It
weighed 2 kg , on being weighed on the electronic weighing machin e.
The IO took two samples of 5 grams each and these were kept in small
plastic pouches, sealed with the seal of 2 BPS NB Delhi and converted
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into cloth pullandas seized vide memo Ex. PW6/F. The IO prepared a
rukka and handed over the same along with all pullandas , FSL forms
as well as a carbon copy of the seizure memos to Ct .Kheta Ram at
about 3:30 pm in order toget a n FIR registered . The investigation was
assigned to ASI Mahender. At about 05:00 pm, ASI Mahender came
to the spot along with HC Rajesh and d river C t. Jai Prakash in
government vehicle no. DL -1CH -5839. SI Rajbir handed over the
custody of the apprehended persons to him along with all other
documents. ASI Mahender Singh prepared the site plan at the instance
of SI Rajbir. Accused Mohd . Shahid was arrested vide memo Ex.
PW6/G and his personal search vide memo Ex. PW6/Hwas conducted .
One notice under Section 50 of NDPS Act, currency of ₹940 and one
ticket from Bhopal to Nizamuddin in his name was found on hi m. His
disclosure statement (Ex. PW6/J) was recorded. The a ccused Amir
Khan was arrested vide arrest memo Ex. PW6/K and his personal
search was conducted (Ex. PW6/L) . His search yielded a notice under
Section 50 of the NDPS Act, a purse containing ₹370 in currency,
some visiting cards and a rai lway ticket from Bhopal to Nizamuddin
in his name. His disclosure statement was recorded as Ex. PW6/M.
PW6 stated that they left the spot at about 8:30 pm and reached PS
Crime Branch, Nehru Place at about 09:00 pm, where the accused
were produced before In sp Kuldeep. All recovered articles were
deposited in the malkhana by the IO. In his cross -examination, he
stated that on 08.06.2011 he could not recall the time at which he
came to , or left from the office. He denied that a register was
maintained with reg ard to his arrival and departure time at the office.
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No entry or exit register was maintained in their PS with regard to any
person in their PS. He deposed that apart from stopping at two places
where the IO requested some public persons to join the procee dings,
they had not stopped anywhere on their way to the spot. The y were in
two vehicles . Ct. Sandeep was driving the privately owned vehicle
bearing no. DL 7CL 1342. No other person accompanied him in that
vehicle. A ll other members of the raiding party w ere in the other car.
PW6 denied ever sitting in that car. At the spot, Ct Kheta Ram, SI
Rajbir Singh and the informer stood on one side of the gate , and he,
himself stood on the other side while , Ct Sandeep and Ct Jai Prakash
were in their respective vehicles parked about 50 metres away. During
this period, he did not make any effort to join any public person and
nor did the IO do so. After apprehending the accused, the writing
work commenced aft er about fifteen minutes. The first document to be
prepared were the notices under Section 50 of the NDPS Act to the
accused persons, prepared by the IO. Since both vehicles were parked
near the spot, they were called to the spot and all proceedings took
place at the spot itself. He affirmed that the accused had written their
refusal in their own handwriting in Hindi language. He affirmed that
all document such as the notices, seizure memos, rukka and FSL form
were prepared by the IO in his own handwriting. He stated that he
could not tell as to who was the nearest Gazetted Officer or
Magistrate . The persons (five to seven in number) who had gathered at
the spot were requested to join the proceedings by the IO , but none
agreed. He affirmed that till the time he was present at the spot, no
other police official had joined them. PW6 could not tell the number
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of the gate at which the raiding team had taken their positions. He
affirmed that the raiding party had reached PS Crime Branch at about
10:00 pm and their office at Shakurpur at about 11:00 pm. He denied
the suggestion that the IO had made a written document with regard to
receiving or handling of the seal by PW6.
11. ASI Mahender Singh, PS Kashmere Gate, deposed as PW7. He
stated that on 09.06.2011, he was pos ted at Narcotic Cell, Shakarpur.
At about 05:00pm, Ct Jai Prakash came in a government vehicle and
took him to the spot where they reached at about 05:20 pm. There, SI
Rajbir Singh met them along with the accused persons. SI Rajbir
Singh handed over custod y of the accused persons, two original copies
of the seizure memos and two original notices under Section 50 of the
NDPS Act. PW7 stated that he prepared the site plan (Ex. PW7/A) at
the instance of SI Rajbir Singh. PW7 stated that he recorded the
statemen t of HC Parminder Singh. Upon reaching PS Nehru Place at
about 09:00 pm, he deposited the personal search items in the
malkhana and recorded the statement of SHO, Crime Branch and the
statement of the MHC(M). Thereafter, they reached Narcotic Cell,
Shakurp ur at about 10:50 pm. PW7 stated that he had made DD entry
no. 34 viz. the accused being produced and questioned by Insp
Kuldeep Singh . He stated that he recorded the statement of Insp
Kuldeep Singh and Ct Kheta Ram and, the supplementary statement of
HC P arminder Singh. In his cross -examination, PW7 affirmed that he
had filed the chargesheet after carefully examining all the annexures.
He affirmed that before filing the chargesheet, all the documents were
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with him. He denied that signatures of the accused were taken on the
site plan. He stated that the site plan was prepared by him while
standing next to the official vehicle Maruti 800 and the rest were
prepared while he was sitting inside the said car. The other vehicle
used in the raid was a Hyundai i10 b rought by SI Rajbir Singh, but
PW7 denied knowing who it belonged to. He denied asking SI Rajbir
Singh the specific location at which the members of the raiding team
had positioned themselves and nor did he mention the gate number of
the IP park where the accused were apprehended. However, he stated
that he had mentioned that the accused were apprehended outside the
gate having the board of Rajiv Gandhi Smriti Park, which is present
outside gate no. 1 only. He stated that he remained at the spot from
5:20 p m till 08:30 pm. He denied having tried to join public persons
from the nearby bus -stop where there were 10 -15 people already
present.
12. He further denied the suggestion that accused Amir Khan had
disclosed the name of the buyer and neither the buyer’s mobil e
number. No source of supply was found from accused Amir Khan
even after five days of police custody remand. He denied trying to join
any public person in the investigation even though the area sees heavy
traffic. On him inquiring, SI Rajbir told him that the private car
belongs to his friend. He could not recall the name of the person from
who he made inquiries about the railway tickets found on the accused
persons. He denied having recorded his statement. He could not say as
to why he had not sent the sa mple parcels to the FSL before
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21.06.2011. He stated that he remained at the spot for about three
hours and in this period, no public person collected at the spot. No
PCR or any other police official from the area visited them either.
13. SI Rajbir Singh, PS Jamia Nagar, deposed as PW8. He stated
that on 09.06.2011, he was posted at Narcotic Cell, Shakarpur, Delhi.
On that date, a secret informer came to his office at about 09:30 am
and told him that two persons namely Amir Khan and Mohd . Sahid
will supply Her oin in Delhi in huge quantity and will come to HN Din
Railway Station by train and will hand over the said contraband to
some person near the gate of IP Park. PW8 produced the said secret
informer before Insp Kuldeep Singh who informed ACP Bir Singh,
who t hen directed them to conduct further proceedings. On Insp
Kuldeep Singh’s instructions, he formed a raiding party (consisting of
himself, HC Parminder Singh, Ct Kheta Ram, Ct Jai Prakash and Ct
Sandeep) and recorded the said information vide DD no. 13A (Ex .
PW4/A). PW8 took his field bag containing field testing kit and
electronic weighing scale with him. The raiding party left the office in
two government vehicles (DL1CF5839 driven by Ct Jai Prakash and
DL7CL1342 driven by Ct Sandeep). They left their offi ce at about
10:20 am vide DD no. 14. And, they reached the gate of IP Park at
about 11:00 am. Near Ramesh Park bus stop, they asked 4 public
persons to join the proceedings after apprising them about the secret
information. They also asked 5 public persons near Nizamuddin
Flyover, however, none agreed. PW8 along with Ct Kheta Ram and
the secret informer took their position on the south side of the IP park
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gate and HC Parminder Singh on the North side. At about 11:55 pm
two persons came who were pointed out by the secret informer. At
about 12:00 pm, they were apprehended by the raiding party.
Thereafter, PW8 stated that he informed the accused persons about the
secret information and informed them of their legal right to be
searched before a Gazetted Officer or Magistrate and the right to
search the search party. He prepared notices under Section 50 of the
NDPS Act. Even at this point, he asked 5 -6 persons to join the
proceedings, but none agreed. PW8 stated that in Mohd . Sahid’s bag,
he found a brownish subst ance packed in a transparent polythene. A
small portion of the same was tested and it was found to be Heroin. It
weighed 2.2 kg. He took 2 samples of 5 grams each and kept them in
separate parcels. He conducted the same procedure with the material
found in Amir Khan’s bag, which also tested positive for Heroin and it
weighed 2 kg. After marking the samples taken by him, and
converting them to pullandas , he prepared the rukka (Ex. PW7/B). He
handed all the pullandas to Ct Kheta Ram with directions to go to t he
PS and get an FIR registered, who left the spot in the vehicle driven by
Ct Jai Prakash. At about 05:20 pm, ASI Mahender Singh (second IO
of the case) came at the spot in the vehicle driven by Ct Jai Prakash.
PW8 handed over the custody of the apprehend ed persons to ASI
Mahender Singh along with all documents. PW8, thereafter, identified
all the case property showed to him by MHC(M) during his
examination in chief.
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14. In his cross -examination, PW8 affirmed that he had written
down the entire contents of the secret information in DD no. 13 (Ex.
PW4/A). However, the said information did not contain information as
to which gate number the accused persons were expected to come
from . He denied any knowledge of the number of gates to the IP park.
He stated that the length of IP Park must be about 1 -1½ km from one
end to another. He could not recall at which gate the accused were
apprehended. He stated that there was a bus stop a t a distance of about
20 metres from the spot. He stated that the accused were apprehended
on the footpath outside the park. He affirmed that vehicle no. DL 7C L
1342 belong s to him and is make Hyundai i10. He could not recall if
he had told ASI Mahender Singh regarding the position of the raiding
party at the IP pa rk gate. He stated that the nearest Magistrate was
available at the Patiala House Courts and the nearest Gazetted Officer
would be the ACP available at the PHQ, Delhi Police, ITO. He
affirmed that the first document prepared by him were the notices
under S ection 50 of the NDPS Act. He could not recall if any security
guard had been deputed near the gate or not, however, on the said
date, no guard was present.
15. Insp CR Meena, SHO, PS Seemapuri deposed as PW9. He
stated that on 09.06.2011, he was posted as SHO , PS Crime Branch,
Nehru Place. At about 04:15 pm, Ct Kheta Ram came to his office and
produced about six pullandas (sealed with seal of 2 BPS NB Delhi)
marked A, B, C, D, E and F, two FSL forms and two copies of seizure
memos before him. WHC Roja Alia inf ormed him about the FIR
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number (156/11) and he put the same on all the documents. At about
04:35 he called MHC(M) Jag Narain in his office and handed over all
the aforesaid to him and he made entries in Register no. 19 regarding
deposit of the said article s in the malkhana . In his cross -examination
by the APP, he affirmed that of the four samples taken from the
accused, only two were sent by him to the FSL for testing. In his
cross -examination, he stated that only Ct Kheta Ram had come to his
office and spe nt around half an hour over there. He denied having
handed over his seal to anyone after its use in this case and the same
remained with him from 09.06.2011 to 22.06.2011. He denied having
mentioned the time of deposit of the above articles along with his
signature in register no. 19.
16. Ct Kheta Ram, Security, Vinay Marg deposed as PW10. He
stated that on 09.06.2011, he was posted at Narcotics Cell, Shakurpur,
Delhi. He was a part of the raiding party formed by SI Rajbir Singh
which consisted of himself, HC P arminder Singh, Ct Jai Prakash and
Ct Sandeep. He stated that the IO arranged a vehicle bearing
DL1CH5839, and the same was being driven by Ct Jai Prakash. And,
a private vehicle was being driven by Ct Sandeep. On their way to the
spot, the asked five to s ix persons to join the raiding team however,
none agreed and left without disclosing their names or addresses.
Their vehicles were parked around 50 metres from the main gate of IP
Park towards ITO. PW10 and SI Rajbir Singh took their positions on
the south ern side of the gate and HC Parminder Singh took his
position on the northern side. Thereafter, two persons were pointed out
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by the secret informer. At about 12:00 am, the two persons were
apprehended by the raiding party and the IO introduced himself and
they also introduced themselves to the raiding party. Thereafter, the IO
apprised the two persons about their legal rights that they could get
searched by a Gazetted Officer or a Magistrate and that they could
search the raiding p arty before the latter conducted his search.
Separate notices under Section 50 of the NDPS Act were also given to
the accused and its contents were read over to them. In the meanwhile,
some public persons had gathered at the spot, however, none agreed to
the IO’s request to join the proceedings. In accused Mohd. Shahid’s
bag, they found one white coloured transparent polythene containing a
brown coloured (earth like colour) powdery substance, which tested
positive for Heroin on the field testing kit. The sa me weighed 2.2 kg.
The IO prepared 2 small polythene packets of the said contraband and
the same were converted into pullandas . Accused Amir’s search also
produced a similar substance , which tested positive for Heroin. The
same process was followed and the IO prepared pullandas of the
material seized from accused Amir. Thereafter, the IO prepared one
tehrir and handed over the same along with the pullandas to PW10
with directions to register the case and deliver the parcels and
documents to the SHO for proc eedings under Section 55 of the NDPS
Act. He left the spot at about 3:30 pm in the official vehicle driven by
Ct Jai Prakash. At the PS, he handed over the tehrir to the DO of the
PS and then met the SHO at about 04:15 pm and handed him all the
material he was instructed to. The SHO affixed his seal on the parcels
and took note of the FIR no. 156/11 and wrote the same on all the
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parcels. He called the MHC(M) and instructed him to deposit all the
material in the malkhana . The MHC(M) made an entry in register no
19 regarding the same.
17. In his cross -examination, he denied using any mobile phone on
09.06.2011. He affirmed having worked with SI Rajbir Singh and ASI
Mahinder Singh in the Narcotics Cell for about one/one and a half
years between 2011 -2012. He affir med that a case was registered
against him (FIR No. 200/12) in the Anti -Corruption branch of the
Delhi Government on the basis of a complaint made by one accused
Riazuddin, who was arrested in a NDPS case. He stated that the said
person had made a false ac cusation against him and that he was not
involved in any other case. He stated that the private vehicle used in
the raid was arranged by the IO but he could not tell who the said
vehicle belonged to. He could not recall the gate number of the park
where th e raid was conducted. He stated that whenever they left their
office for official work, they would normally record a DD entry.
However, he could not recall recording anything in the DD in his
handwriting and stated that the same may be recorded by the duty
officer. He denied having recorded the DD entry in the present case in
his handwriting. He affirmed that he was at the spot for about 4½
hours, however, no one (except the secret informer) left or came to the
spot. He stated that the persona l search of th e accused persons was not
conducted in his presence. He denied being aware of where a Gazetted
Officer or Magistrate could be found . He affirmed that the MHC(M) at
the PS had made entries in Register no. 19 before the SHO.
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Thereafter, he denied that SI Rajbir Singh told the accused as to who
was the nearest Gazetted Officer or Magistrate. He denied that a senior
officer had visited the spot.
18. In his statement under Section 313 of the Cr.PC, accused Mohd
Shahid denied the allegations against him and stated that he was
apprehended in the morning hours of 09.06.2011 when he had gone to
Hazrat Nizamuddin to pay obeisance along with his family members.
He denied that the police officials had explained to him the meaning
of Gazetted Officer or Magistrate or that he was apprehended from the
spot. He stated that his signatures were forcibly taken on many blank
papers. He denied any illicit material was seized from him. He stated
that he had been falsely implicated in the case.
19. In his statement under Section 313 of the Cr.PC, accused Amir
Khan denied the allegations against him and stated that no contraband
was recovered from him. He denied that a notice under Section 50 of
the NDPS Act was served to him. He stated that he was apprehended
from the Nizamuddin Dargah a nd that all documents were prepared at
the PS. He stated that the case against him is false and fabricated.
20. Mohd Salam was examined as DW1 for the accused Mohd.
Shahid . He stated that he knew the accused Mohd Shahid for the last
20/25 years as he is his br other in law. He stated that on 08.06.2011,
he along with the accused had started from Kota, Rajasthan to visit
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Hazrat Nizamuddin Dargah. At about 07:30/08:00 am, when they
were buying a chadar for the dargah, 4 -5 people in civil clothes
approached them and asked them if they knew anything about a
smuggler in Kota, Rajasthan. Thereafter, the said persons took DW1
and the accused to the PS where they were kept separately . He stated
that while DW1 was released, the accused was not. In his cross –
examination, he stated that accused Mohd Shahid worked as an
electrician. He could not recall if he had been in jail for an offence
under the NDPS Act prior to this occasion . He denied knowing Amir
Khan. He denied that tickets in the name of the accused were seized
from them.
21. Sameer Khan was examined as DW 1 in defence of Amir Khan .
He stated that on 07.06.2011, he along with his father (accused Amir
Khan) had come to Delhi to attend the Umra functio n on 08.06.201 1at
the house of one Salim, who was going for Umra to Saudi Arabia. On
09.06.2011, he and the accused had gone to Hazrat Nizamuddin
Dargah to offer chadar and when they came out, four persons
approached them and asked the accused his name. Th ereafter, they
took them to PS Shakurpur and DW1 kept waiting outside. The next
day, he was informed that a case under the NDPS Act was registered
against his father. In his cross -examination, he stated that he and his
father had come to Hazrat Nizamuddin Station from Bhopal at 06:30
am on 07.06.2011. He could not recall the number of the flat where
they had to attend the Umra function. He stated that his father had
earlier been in custody but he did not know the details of that case. He
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denied that at the time of apprehension of his father, a ticket from
Bhopal to Hazrat Nizamuddin was recovered from him. He denied that
Heroin was recovered from his father.
Submissions
22. Mr. Sumit Sharma, learned counsel appearing for the appellants
assailed the impugned judgment on several fronts. First, he contended
that the provisions of Section 50 of the NDPS Act were not complied
with, inasmuch as , the appellants were not searched in the presence of
a Gazetted Officer or a Magistrate. He also referred to the cross –
examination of PW6 (HC Parminder) wherein he had admitted that he
did not know who was the nearest Gazetted Officer or a Magistrate
from the spot where the appellants were apprehended. And, neither
was PW10 (Ct. Kheta Ram) aware of the location of t he nearest
Gazetted Officer or Magistrate. Mr Sharma contended that it was
evident that the police officials had no intention of taking the
appellants to a Magistrate or a Gazetted Officer for searching them in
their presence. He submitted that the notice s under Section 50 of the
NDPS Act were just a formality and the evidence on record
established that the appellants were given no real opportunity to be
searched in presence of a Gazetted Officer or a Magistrate. He relied
upon the decision of the Supreme Court in Vijaysinh Chandubha
Jadeja v. State of Gujarat: AIR 2011 SC 77; Narcotics Central
Bureau v. Sukh Dev Raj Sodhi: AIR 2011 SC 1939 ; and Arif Khan
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@ Agha Khan v. State of Uttarakhand: (2018) 18 SCC 380 in support
of his contention that a search conducted in violation of Section 50 of
the NDPS Act was invalid and the alleged recovery of contraband
without compliance of Section 50 of the NDPS Act, c ould not be
proved.
23. Second, he contended that the provis ions of Section 41 of the
NDPS Act were not complied with. He referred to the provisions of
Section 41 of the NDPS Act as in the present case, no warrants from
the Magistrate were obtained for searching the appellants. He referred
to the decision of a Coor dinate Bench of this Court in Directorate of
Revenue Intelligence v. Manjinder Singh: (2014) 2 DLT (Cri) 99 in
support of his contention.
24. Third, he contended that the possibility of the samples being
tampered with was not ruled out , as there was an inordinate delay of
twelve days in sending the samples to the FSL. He submitted that , in
addition , the weight of the samples drawn and the weight of the
samples received at the FSL was also different. He also contended that
the prosecution had failed to establish that the seal used for sealing the
samples and the case property was handed over to an ind ependent
witness. He contended that since the seal in question remained with
police officials, the samples could have been tempered with. He
submitted that this apprehension was also not unfounded as the
substance when produced in Court was not in powdery form but was
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in hard and lumpy form. The substance was light brown in colour but
when the samples were drawn, the colour of the substance was
described as matiala .
25. Fourth, Mr Sumit Sharma contended that there was a doubt as
to the vehicles used by the po lice officials to take them to the spot.
According to the prosecution, two vehicles were used; one was a
Government vehicle bearing No. DL -1CH -5839 and the other was a
private vehicle bearing no. DL -7CL-1342. However, no documents
were produced to show the use of the said vehicles. Although a
Government vehicle was used, no logbook was produced regarding the
same. Further, PW8 had in his examination -in-chief stated that two
Government vehicles were used. However, in his cross -examination,
he admitted that the vehicle bearing registration no. DL -7CL-1342
was his personal vehicle. PW7 (ASI Mahender Singh) stated in his
cross -examination that he had inquired from SI Rajbir Singh (PW8)
regarding the private vehicle and was informed by him that the said
vehicle belonged to his friend, but his name was not disclosed. Thus,
he did not know who was the owner of the said vehicle.
26. Fifth, he submitted that no independent witnesses had been
examined and this itself raised doubts as to the prosecution’s case. He
relied upon the decision of a Coordinate Bench of this Court in
Gunesh Kumar v. State: Crl. A. 1696/2015 decided on 18.07.2016 in
support of his contention.
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27. Sixth, he submitted that HC Rajesh was not examined although
he was a relevant witness. He further s ubmitted that the evidence of
Ct. Kheta Ram (PW10) could also not be relied upon as an FIR (FIR
No. 200/2012) was registered against him with the Anti-Corruption
Branch of the Delhi Government on the basis of a c omplaint made by
one Riyazuddin; he submitted that the evidence of a police official
who was already under a cloud was liable to be rejected.
28. In addition to the above, Mr Sharma also submitted that there
were other aspects which raised doubts as to the case set up by the
prosecution. H e submitted that (i) no chemical expert had been
examined; (ii) there was a discrepancy in the description of the spot as
PW7 and PW10 had deposed that there was one bus stop but PW8 had
stated that there were two or three; (iii) each one of the said witne sses
also gave varying descriptions as to the distance of the spot from the
bus stop , as PW7 stated that it was twenty to twenty five meters but
PW8 stated that it was twenty meters and PW10 stated that it was fifty
to sixty meters; (iv) none of the witnes ses had deposed as to the
number of the gate of IP Park; and (vi) although a ticket had allegedly
been recovered from the appellant, no investigation was conducted
regarding the said railway ticket.

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Reasons and Conclusion
29. The first and foremost issue to be examined is whether any of
the provisions of the NDPS Act have been violated warranting
rejection of the case set up by the prosecution.
30. The contention that the provisions of Section 50 of the NDPS
Act were not complied with is clearly unpersuasive. There is no
requirement that a person suspected of carrying narcotic drugs and
other banned substances must be searched only in the presence o f a
Magistrate or a Gazetted Officer , even if he declines to be searched.
Indisputably, in terms of Section 50 of the NDPS Act, a suspect has a
right to be searched i n the presence of a Magistrate or a Gazetted
Officer. He is also required to be informed o f his right to be search ed
in the presence a Magistrate or Gazetted Officer. Undeniably, in the
event the suspect exercises the said right, then he would necessarily
have to be searched before a Magistrate or a Gazetted Officer.
However, if he declines to be so searched , there is no requirement for
him to be searc hed in presence of a Magistrate or a Gazetted O fficer.
31. In the present case, PW6 had testified that both the accused
(appellants herein) were informed that if they wanted, they could be
searched i n presence of a Gazetted Officer or a Magistrate. PW6
testified that separate written notices under Section 50 of the NDPS
Act were also served on the appellants and he identified his signatures
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on the notices (Ex.PW6/A and Ex.PW6/C). He testified that aft er
going through the notices, accused Mohd. Shahid declined to be
searched before the said officers or to search the police party or their
vehicles and wrote the same in his reply (Ex.PW6/B). Similarly,
accused Amir Khan also refused to be searched before the said
officers. He also replied to the aforesaid effect (Ex.PW6/D). PW6
further testified that the accused Amir Khan signed in English while
Mohd. Shahid signed in Hindi.
32. The testimony of PW8 is also consistent with the testimony of
PW6. PW8 (SI Rajb ir Singh) testified that he had prepared the notices
under Section 50 of the NDPS Act and had served the same to the
accused. He also identified his signatures on the said notices. He
further testified that he had informed the accused of their legal rights
to be searched before a Gazetted Officer or a Magistrate but both of
them had refused to be so searched. Ct. Kheta Ram (PW10) also
testified that separate notices under Section 50 of the NDPS Act were
served on the accused. He also deposed that the IO ha d informed
them that they had a right to be searched in presence of a Gazetted
Officer or a Magistrate. Although PW6, PW8 and PW10 were
extensively cross -examined, there is nothing in their responses which
would lead this Court to doubt their testimony in regard to informing
the appellants of their rights under Section 50 of the NDPS Act or
their refusal to be searched in the presence of a Magistrate or a
Gazetted Officer.
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33. The next question to be addressed is whether the provisions of
Section 41 of the NDPS Act were complied with. Mr Sharma had
earnestly contended that the provisions of Section 41(1) of the NDPS
Act were applicable and it was necessary for the concerned offi cers to
secure an authorization from a Magistrate.
34. Ms Meenakshi Chauhan, learned APP, on the other hand had
contended that there was no requirement to comply with Section s 41
or 42 of the NDPS Act as the appellants were searched and
apprehended at a publ ic place. She contended that in the given
circumstances, Section 43 of the NDPS Act was applicable and not
Section s 41 or 42 of the NDPS Act.
35. At this stage, it would be relevant to refer to Sections 41, 42 and
43 of the NDPS Act, which are reproduced belo w:
“41. Power to issue warrant and authorisation. —(l)
A Metropolitan Magistrate or a Magistrate of the first
class or any Magistrate of the second class specially
empowered by the State Government in this behalf,
may issue a warrant for the arrest of any p erson whom
he has reason to believe to have committed day or by
night, of any building, conveyance or place in which he
has reason to believe any narcotic drug or psychotropic
substance or controlled substance in respect of which
an offence punishable unde r this Act has been
committed or any document or other article which may
furnish evidence of the commission of such offence or
any illegally acquired property or any document or
other article which may furnish evidence of holding
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any illegally acquired pro perty which is liable for
seizure or freezing or forfeiture under Chapter VA of
this Act is kept or concealed:
(2) Any such officer of gazetted rank of the
departments of central excise, narcotics, customs,
revenue intelligence or any other department of the
Central Government including the para -military forces
or the armed forces as is empowered in this behalf by
general or special order by the Central Government, or
any such officer of the revenue, drugs control, excise,
police or any other department of a State Government
as is empowered in this behalf by general or special
order of the State Government if he has reason to
believe from personal knowledge or information given
by any person and taken in writing that any person has
committed an offence puni shable under this Act or that
any narcotic drug or psychotropic substance or
controlled substance in respect of which any offence
under this Act has been committed or any document or
other article which may furnish evidence of the
commission of such offenc e or any illegally acquired
property or any document or other article which may
furnish evidence of holding any illegally acquired
property which is liable for seizure or freezing or
forfeiture under Chapter VA of this Act is kept or
concealed in any build ing, conveyance or place, may
authorise any officer subordinate to him but superior in
rank to a peon, sepoy or a constable to arrest such a
person or search a building, conveyance or place
whether by day or by night or himself arrest such a
person or sear ch a building, conveyance or place.
(3) The officer to whom a warrant under sub –
section (1) is addressed and the officer who authorized
the arrest or search or the officer who is so authorised
under sub -section (2) shall have all the powers of an
officer acting under section 42.
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42. Power of entry, search, seizure and arrest
without warrant or authorisation .—(l) Any such
officer (being an officer superior in rank to a peon,
sepoy or constable) of the departments of central
excise, narcotics, customs, reve nue intelligence or any
other department of the Central Government including
para-military forces or armed forces as is empowered
in this behalf by general or special order by the Central
Government, or any such officer (being an officer
superior in rank t o a peon, sepoy or constable) of the
revenue, drugs control, excise, police or any other
department of a State Government as is empowered in
this behalf by general or special order of the State
Government, if he has reason to believe from personal
knowledg e or information given by any person and
taken down in writing that any narcotic drug, or
psychotropic substance, or controlled substance in
respect of which an offence punishable under this Act
has been committed or any document or other article
which may furnish evidence of the commission of such
offence or any illegally acquired property or any
document or other article which may furnish evidence
of holding any illegally acquired property which is
liable for seizure or freezing or forfeiture under
Chapte r VA of this Act is kept or concealed in any
building, conveyance or enclosed place, may between
sunrise and sunset, —
(a) enter into and search any such building,
conveyance or place;
(b) in case of resistance, break open any
door and remove any obstacle to such entry;
(c) seize such drug or substance and all
materials used in the manufacture thereof and any
other article and any animal or conveyance which
he has reason to believe to be liable to
confiscation under this Act and any document or
other article which he has reason to believe may
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furnish evidence of the commission of any
offence punishable under this Act or furnish
evidence of holding any illegally acquired
property which is liable for seizure or freezing or
forfeiture under Chapter VA of this Act; and
(d) detain and search, and, if he thinks
proper, arrest any person whom he has reason to
believe to have committed any offence
punishable under this Act:
Provided that in respect of holder of a
licence for manufacture of manufactured dr ugs or
psychotropic substances or controlled substances
granted under this Act or any rule or order made
thereunder, such power shall be exercised by an
officer not below the rank of sub -inspector:
Provided further that if such officer has
reason to belie ve that a search warrant or
authorization cannot be obtained without
affording opportunity for the concealment of
evidence or facility for the escape of an offender,
he may enter and search such building,
conveyance or enclosed place at any time
between su nset and sunrise after recording the
grounds of his belief.
(2) Where an officer takes down any information
in writing under sub -section (1) or records grounds for
his belief under the proviso thereto, he shall within
seventy -two hours send a copy thereo f to his
immediate official superior.
43. Power of seizure and arrest in public
place .—Any officer of any of the departments
mentioned in section 42 may —
(a) seize in any public place or in transit,
any narcotic drug or psychotropic substance or
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controll ed substance in respect of which he has
reason to believe an offence punishable under this
Act has been committed, and, along with such
drug or substance, any animal or conveyance or
article liable to confiscation under this Act, any
document or other arti cle which he has reason to
believe may furnish evidence of the commission
of an offence punishable under this Act or any
document or other article which may furnish
evidence of holding any illegally acquired
property which is liable for seizure or freezing or
forfeiture under Chapter VA of this Act;
(b) detain and search any person whom he
has reason to believe to have committed an
offence punishable under this Act, and if such
person has any narcotic drug or psychotropic
substance or controlled substance in his
possession and such possession appears to him to
be unlawful, arrest him and any other person in
his company.
Explanation .—For the purposes of this
section, the expression “public place” includes
any public conveyance, hotel, shop, or other
place i ntended for use by, or accessible to, the
public.”
36. In State of Punjab v. Balbir Singh: (1994) 3 SCC 299 , the
Supreme Court had explained as under:
“10. It is thus clear that by a combined reading of
Sections 41, 42, 43 and 51 of the NDPS Act and
Section 4 CrPC regarding arrest and search under
Sections 41, 42 and 43, the provisions of CrPC
namely Sections 100 and 165 would be
applicable to such arrest an d search.
Consequently the principles laid down by various
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courts as discussed above regarding the
irregularities and illegalities in respect of arrest
and search would equally be applicable to the
arrest and search under the NDPS Act also
depending upon t he facts and circumstances of
each case.
11. But there are certain other embargoes
envisaged under Sections 41 and 42 of the NDPS
Act. Only a Magistrate so empowered under
Section 41 can issue a warrant for arrest and
search where he has reason to believe that an
offence under Chapter IV has been committed so
on and so forth as mentioned therein. Under sub –
section (2) only a Gazetted Officer or other
officers mentioned and empowered therein can
give an authorization to a subordinate to arrest
and search if such officer has reason to believe
about the commission of an offence and after
reducing the information, if any, into writing.
Under Section 42 only officers mentioned therein
and so empowered can make the arrest or search
as provided if they have reason to believe from
personal knowledge or information. In both these
provisions there are two important requirements.
One is that the Magistrate or the officers
mentioned therein firstly be empowered and they
must have reason to believe that an offence under
Chapter IV has been committed or that such
arrest or search was necessary for other purposes
mentioned in the provision. So far as the first
requirement is concerned, it can be seen that the
Legislature intended that only certain Magistrates
and certain off icers of higher rank and
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empowered can act to effect the arrest or search.
This is a safeguard provided having regard to the
deterrent sentences contemplated and with a view
that innocent persons are not harassed. Therefore
if an arrest or search contempla ted under these
provisions of NDPS Act has to be carried out, the
same can be done only by competent and
empowered Magistrates or officers mentioned
thereunder.”
37. Under Section 43 of the NDPS Act, the concerned officer may
detain a person. However, he can do so only where he has reason to
believe that the said person has committed an offence punishable
under the NDPS Act. And, if he is in possession of any n arcotic drug
or psychotrop ic substance and his possession appears to be unlawful.
38. In Directorate of Revenue and Anr. v. Mohd. Nisar Holia:
(2008) 2 SCC 370 , the Supreme Court had emphasized that a
distinction must be drawn in cases where action is taken on the basis
of prior information received and a case where an authority accidently
or by chance comes across a case of commission of an offence under
the NDPS Act. The relevant extract of the said decision is set out
below: –
“11. Power to make search and seizure as also to
arrest an accused is founded upon and subject to
satisfaction of th e officer as the term “reason to
believe” has been used. Such belief may be
founded upon secret information that may be
orally conveyed by the informant. Draconian
provision which may lead to a harsh sentence
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having regard to the doctrine of “due process” as
adumbrated under Article 21 of the Constitution
of India requires striking of balance between the
need of law and enforcement thereof, on the one
hand, and protection of citizen from oppression
and injustice on the other.
12. This Court in Balbir Singh [(1994) 3 SCC
299 : 1994 SCC (Cri) 634 : AIR 1994 SC 1872]
referring to Miranda v. State of Arizona [16 L Ed
2d 694 : 384 US 436 (1966)] while interpreting
the provisions of the Act held that not only the
provisions of Section 165 of the Code of
Criminal Procedure would be attracted in the
matter of search and seizure but the same must
comply with right of the accused to be informed
about the requirement to comply with the
statutory provisions.
13. Requirements of Section 42 was read into
Section 43 of the NDPS Act. A somewhat
different view, however, was taken subsequently.
Decisions were rendered opining that in
conducting search and seiz ure in public place or a
moving vehicle, provisions appended to sub –
section (1) of Section 42 would not be attracted.
Decisions were also rendered that in such a case
even sub -section (2) of Section 42 need not be
complied with.
14. Section 43, on plain re ading of the Act, may
not attract the rigours of Section 42 thereof. That
means that even subjective satisfaction on the
part of the authority, as is required under sub –
section (1) of Section 42, need not be complied
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with, only because the place whereat se arch is to
be made is a public place. If Section 43 is to be
treated as an exception to Section 42, it is
required to be strictly complied with. An
interpretation which strikes a balance between the
enforcement of law and protection of the valuable
human r ight of an accused must be resorted to. A
declaration to the effect that the minimum
requirement, namely, compliance with Section
165 of the Code of Criminal Procedure would
serve the purpose may not suffice as non –
compliance with the said provision would not
render the search a nullity. A distinction therefore
must be borne in mind between a search
conducted on the basis of a prior information and
a case where the authority comes across a case of
commission of an offence under the Act
accidentally or per c hance. It is also possible to
hold that rigours of the law need not be complied
with in a case where the purpose for making
search and seizure would be defeated, if strict
compliance therewith is insisted upon. It is also
possible to contend that where a s earch is
required to be made at a public place which is
open to the general public, Section 42 would have
no application but it may be another thing to
contend that search is being made on prior
information and there would be enough time for
compliance of reducing the information to
writing, informing the same to the superior
officer and obtain his permission as also
recording the reasons therefor coupled with the
fact that the place which is required to be
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searched is not open to public although situated
in a public place as, for example, room of a hotel,
whereas hotel is a public place, a room occupied
by a guest may not be. He is entitled to his right
of privacy. Nobody, even the staff of the hotel,
can walk into his room without his permission.
Subject t o the ordinary activities in regard to
maintenance and/or housekeeping of the room,
the guest is entitled to maintain his privacy. The
very fact that the Act contemplated different
measures to be taken in respect of search to be
conducted between sunrise a nd sunset, between
sunset and sunrise as also the private place and
public place is of some significance. An authority
cannot be given an untrammeled power to
infringe the right of privacy of any person. Even
if a statute confers such power upon an authori ty
to make search and seizure of a person at all
hours and at all places, the same may be held to
be ultra vires unless the restrictions imposed are
reasonable ones. What would be reasonable
restrictions would depend upon the nature of the
statute and the extent of the right sought to be
protected. Although a statutory power to make a
search and seizure by itself may not offend the
right of privacy but in a case of this nature, the
least that a court can do is to see that such a right
is not unnecessarily i nfringed. Right to privacy
deals with persons and not places.”
39. In the present case, SI Rajbir Singh (PW8) had reduced the
secret information into writing and had entered the same as DD No.
13A. A copy of the same was handed over to Inspector Kuldeep
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Singh . The Trial Court found that this was in due compliance with
provisions of Section 42(1) of the NDPS Act. The said information
was transmitted to Sh. Bir Singh, ACP, Narcotic , telephonically who
directed that further proceedings be taken up. The Trial Cour t found
that this was also in compliance with provisions of Section 42(1) of
the NDPS Act.
40. ACP Bir Singh was examined as PW4. He testified that on
09.06.2011 at about 09:50/09:55 am, he had received a telephonic call
from Inspector Kuldeep Singh informin g him that two persons named
Mohd. Shahid and Amir Khan , who were residents of Madhya Pradesh
and Rajasthan respectively, would come by train to Nizamu ddin
Railway Station to supply H eroin to some person on the footpath ,
outside IP Park. He testified that he directed Insp Kuldeep Singh to
take further action on the above information and to conduct a raid. He
also testified that on the same day, he received DD No. 13 which
recorded the aforesaid information in writing.
41. Plainly, there was no requirement of a n expressed authorization
from a Magistrate under Section 41(1) of the Act as contended on
behalf of the appellants. This Court finds no infirmity with the
aforesaid view.
42. The contention that tampering of the samples could not be
overruled is also unper suasive. Undeniably there was an inordinate
delay in sending the samples to the FSL. However, that by itself is not
sufficient to conclude that the samples could have been tampered with.
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Indisputably, the seals on the samples were intact. The FSL report
(Ex.PW7/E) also records that the parcels were received with the seal
of “2BP.S./N.B. Delhi” and “CRM” and the said seals were intact.
43. The contention that since the weight of the samples was in
excess of 5 grams, the same indicated that the samples had been
tampered with, is also unmerited. It is noticed that there was only a
small difference in the weight of the samples as drawn and the
samples as received at the FSL. The samples drawn were weighed 5
grams each. But the exhibits received by the FSL indicated the weigh t
of the samples drawn as 5.15 grams and 5.87 grams. However, it is
relevant to note that the said weight included the weight of the
polythene in which the samples had been tied. Further, a minor
variation in the weight is expected due to the unc ontrolled conditions
in which the samples are drawn and the accuracy of the machines on
which the same are weighed. This C ourt is of the view that the
difference in the weight of the samples is not material.
44. This C ourt also does not find any merit in the contention that
the delay in sending the samples to the FSL is fatal to the case of the
prosecution. In Hardip Singh v. State of Punjab: (2008) 8 SCC 557 ,
there was a delay of forty days in sending the samples to the chemical
examiner. However, the Sup reme Court held that the said delay did
not establish that the samples had been tampered with since the seals
were intact. The relevant extract of the said judgement is reproduced
below:
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Crl. A. Nos. 919/2017 & 924/2017 Page 39 of 40
“It has also come on evidence that till the date the
parcels of sam ple were received by the Chemical
Examiner, the seal put on the said parcels was intact.
That itself proves and establishes that there was no
tampering with the aforesaid seal in the sample at any
stage and the sample received by the analyst for
chemical e xamination contained the same opium which
was recovered from the possession of the appellant. In
that view of the matter, delay of about 40 days in
sending the samples did not and could not have caused
any prejudice to the appellant. The aforesaid
contenti on, therefore, also stands rejected.”
45. In Jarnail Singh v. State of Punjab: AIR 2011 SC 964 , the
Supreme Court had rejected the contention that a delay of twelve days
in sending the samples to the chemical examiner was sufficient to
conclude that the sample s were tampered with. The Supreme Court
also referred to an earlier case in Balbir Kaur v. State of Punjab:
(2009) 15 SCC 795, wherein it had expressed a similar view.
46. The contention that since no independent witness had been
joined in the proceedings, the evidence of the police officials ought to
be rejected is also unpersuasive. In the case of Kalpnath Rai v. State:
AIR 1998 SC 201 , the Supreme Court had observed as under: –
“There can be no legal proposition that evidence
of police officers, unless supp orted by
independent witnesses, is unworthy of
acceptance. Non -examination of independent
witness or even presence of such witness during
the raid would cast an added duty on the court to
adopt greater care while scrutinizing the evidence
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Crl. A. Nos. 919/2017 & 924/2017 Page 40 of 40
of the police off icers. If the evidence of the police
officer is found acceptable, it would be an
erroneous proposition that court must reject the
prosecution version solely on the ground that no
independent witness was examined.”
47. In the present case, the testimony of the official wi tnesses is
consistent and this C ourt finds no reason to doubt the same.
48. Merely because the seal had not been handed over to the
independent witnesses also does not , in any manner , raise any doubts
that the samples were tampered. The possession of the seal was
accounted for.
49. The contention that the witnesses did not know that one of the
vehicles used by them belonged to SI Rajbir Singh is also insufficient
to doubt the case set up b y the prosecution. The discrepancies in the
estimated distances between the bus stop and the spot are also not
significant. The other contentions advanced are also unsubstantial.
50. In view of the above, this Court finds no infirmity with the
conclusion of the Trial Court. The appeals are, accordingly, dismissed.
The pending application is also disposed of.

VIBHU BAKHRU, J
JANUARY 27 , 202 1
RK
2021:DHC:302