Full Text
HIGH COURT OF DELHI
JUDGMENT
STATE .....Petitioner
For the Petitioner : Mr. Ajay Vikram Singh, APP for the
State alongwith SI Sanjeev Kumar, P.S. ANTF/Crime Branch
For the Respondent : Mr. Satyam Thareja, Advocate.
1. The present petition is filed under Section 378 of the Code of Criminal Procedure, 1973 (‘CrPC’) challenging the judgement dated 03.01.2019 (hereafter ‘the impugned judgement’), in Sessions Case No. 633/2018 arising out of FIR No. 78/2018, registered at Police Station Crime Branch, whereby the learned Trial Court has acquitted the respondent of the offence under section 21(c) of the Narcotics Drugs and Psychotropic Substances Act, 1985 (‘NDPS Act’).
2. The brief facts of the present case are that on 18.03.2018, a secret informer came to the office of Narcotics Cell with information that the respondent is involved in supply of Heroine and that he would be supplying to someone on that day. On being asked, the secret informer stated that the respondent resides in J.J. Colony, Uttam Nagar, New Delhi.
3. A raiding party was constituted and positioned outside the residence of the respondent. At about 6:00 PM, when the respondent walked out of his residence, carrying a polythene bag, he was apprehended by the raiding party. A transparent polythene bag tied with a rubber band containing 1 kg of Heroine was recovered from the respondent’s possession. Consequently, charges were framed against the respondent for the offence under section 21(c) of the NDPS Act by order dated 27.08.2018.
4. The learned Trial Court, vide the impugned judgement, acquitted the respondent of the charged offence and observed that the compliance under Section 50 of the NDPS Act was not made during the search of the respondent and that despite availability of public in the area, no efforts were made by the IO to join independent persons as public witnesses in the proceeding, and therefore the recovery of contraband from the respondent was not established beyond reasonable doubt by the prosecution. The learned Trial Court further observed that the statements of the prosecution witnesses are contradictory with each other and has revealed that the signatures of the recovery witnesses have been obtained in a mechanical manner and that the raiding party failed to comply with the mandatory provision under Section 42(2) of the NDPS Act.
5. The learned Additional Public Prosecutor for the State submitted that the learned Trial Court failed to appreciate the evidence placed by the prosecution and has drawn conclusions by picking up an isolated portion from the testimonies of the prosecution witnesses, which has resulted in the acquittal of the respondent herein.
6. He submitted that commercial quantity of contraband has been recovered from the respondent in the present case and it is clear from the statement of the witnesses that that the alleged offence was in fact committed by the respondent. He submitted that strict adherence to the compliances under the NDPS Act or absence of independent witnesses are merely procedural irregularities and would not vitiate the trial, given that the witness is a reliable one.
7. He submitted that it is clear from the statement of the Investigating Officer that the accused himself denied availing his legal rights and gave it in writing and therefore, the learned Trial Court has erred in coming to the conclusion that no Gazetted officer or Magistrate was present at the time of search of the respondent.
8. He further submitted that, efforts were made to arrange public witnesses, however, the public was reluctant to join the investigation because of the apprehension of getting trapped in a lengthy litigation process. He submitted that it is trite law that merely because there is no independent witness, it cannot be said that the accused person has been falsely implicated and the case of the prosecution cannot be rejected solely on the said ground. Analysis
9. I have heard the learned counsel and perused the record.
10. It is trite law that this Court must exercise caution and should only interfere in an appeal against acquittal where there are substantial and compelling reasons to do so. At the stage of grant of leave to appeal, the High Court has to see whether a prima facie case is made out in favour of the appellant or if such arguable points have been raised which would merit interference. The Hon’ble Apex Court in the case of State of Maharashtra v. Sujay Mangesh Poyarekar: (2008) 9 SCC 475 held as under:
(Emphasis supplied)
11. Suffice it to say that leave to appeal can be granted only if there is any perversity in the order of the learned trial court or a substantial error in the view taken by the trial court. Hence, an order of acquittal can only be set aside if the approach of the lower court is vitiated with the manifest illegality or the decision is perverse and the trial court has committed a manifest error of law and ignored material evidence on record.
12. After a detailed examination of the case, the evidence presented, and the legal principles governing the NDPS Act, it is evident that the impugned judgment acquitting the respondent is well-founded and does not warrant interference. The prosecution’s case is fraught with procedural lapses, contradictions in witness testimonies, and failure to adhere to the mandatory safeguards enshrined in the NDPS Act, which are essential to ensure a fair trial and prevent abuse of power.
13. The learned Trial Court rightly held that the mandatory requirement of informing the accused of his legal right under Section 50 of the NDPS Act, to have his search conducted in the presence of a Gazetted Officer or Magistrate was not complied with. The importance of this safeguard, as emphasized in State of Punjab v. Balbir Singh: (1999) 6 SCC 172 cannot be overstated. Section 50 of the NDPS Act protects the accused against arbitrary and illegal searches, and its non-compliance vitiates the legality of the seizure. The prosecution’s failure to demonstrate beyond doubt that this statutory requirement was met fatally undermines their case.
14. The Constitutional Bench of the Hon’ble Apex Court in the case of Vijaysinh Chandubha Jadeja v. State of Gujarat: (2011) 1 SCC 609, while explaining the scope of Section 50 of the NDPS Act and taking into account the observations enumerated in another Constitutional Bench judgment in the case of State of Punjab v. Baldev Singh: (1999) 6 SCC 172 held as under: “24. Although the Constitution Bench in Baldev Singh case [(1999) 6 SCC 172: 1999 SCC (Cri) 1080] did not decide in absolute terms the question whether or not Section 50 of the NDPS Act was directory or mandatory yet it was held that provisions of subsection (1) of Section 50 make it imperative for the empowered officer to “inform” the person concerned (suspect) about the existence of his right that if he so requires, he shall be searched before a gazetted officer or a Magistrate; failure to “inform” the suspect about the existence of his said right would cause prejudice to him, and in case he so opts, failure to conduct his search before a gazetted officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from the person during a search conducted in violation of the provisions of Section 50 of the NDPS Act. The Court also noted that it was not necessary that the information required to be given under Section 50 should be in a prescribed form or in writing but it was mandatory that the suspect was made aware of the existence of his right to be searched before a gazetted officer or a Magistrate, if so required by him. We respectfully concur with these conclusions. Any other interpretation of the provision would make the valuable right conferred on the suspect illusory and a farce. xxxx xxxx xxxx
29. In view of the foregoing discussion, we are of the firm opinion that the object with which the right under Section 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect viz. to check the misuse of power, to avoid harm to innocent persons and to minimise the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a Magistrate. We have no hesitation in holding that insofar as the obligation of the authorised officer under subsection (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision.”
15. The Hon’ble Apex Court, upon examining Section 50 of the NDPS Act, held that it is mandatory for an empowered officer to inform the person being searched of their right to have the search conducted before a Gazetted Officer or a Magistrate.
16. In the present case, the learned Trial Court observed, based on the cross-examination of PW-3 (ASI Dushyant Kumar), that there was no genuine effort to comply with these mandatory provisions. When questioned about his awareness of any Gazetted Officer’s address to facilitate the accused’s right under Section 50 of the NDPS Act, PW-3 admitted his ignorance. Furthermore, no steps were taken to involve any ACP/DCP in the raid to ensure compliance with the provision.
17. In the opinion of this Court, the learned Trial Court fairly concluded that this amounted to mere procedural formalities rather than substantive compliance. The respondent was compelled to sign the notice under Section 50 of the NDPS Act in a mechanical manner to superficially meet the statutory requirement without adhering to its essence.
18. The learned Trial Court observed that despite conducting the raid in a residential area where public witnesses could have been easily secured, the raiding party failed to include independent witnesses.
19. It is trite law that the case of the prosecution cannot be rejected merely on account of the case being tethered on the testimonies of official witnesses and non-examination of independent witnesses would thus not be fatal to the prosecution’s case [Dharampal Singh v. State of Punjab: (2010) 9 SCC 608; Raveen Kumar v. State of Himachal Pradesh: 2020 SCC OnLine SC 869].
20. Reliance on the testimonies of official witnesses is sufficient to secure conviction once it is established that the police witnesses have no animosity against the accused person so as to falsely implicate him. The testimonies of the official witnesses cannot be disregarded merely on account of them being police officials. Clearly, there is no principal that demarks that the testimonies of official witnesses cannot be relied upon in the absence of corroboration from independent witnesses. It is open to the prosecution to furnish an explanation to justify the nonjoinder of public witnesses during the course of the trial [Jarnail Singh v. State of Punjab: (2011) 3 SCC 521; Sumit Tomar v. State of Punjab: (2013) 1 SCC 395; Mukesh Singh v. State (NCT of Delhi): (2020) 10 SCC 120].
21. However, it cannot be denied that the lack of independent witnesses in some circumstances casts a shadow over the case of the prosecution [Ref. Kishan Chand v. State of Haryana: (2013) 2 SCC 502].
22. Section 100 of the CrPC delineate the procedure for involving independent witnesses during a search. Section 100(4) of the CrPC mandates that the officer or individual authorized to conduct the search must summon two or more independent and respectable inhabitants from the locality where the search is to be executed. These witnesses are required to be present during the search to observe the proceedings, ensuring transparency and fairness throughout the process.
23. While irregularity and violation of the provisions of Sections 100 and 165 of the CrPC does not vitiate the seizure, the same would make it indispensable for the Court to consider the question as to whether the weight of evidence has been effected in any manner by the non-compliance or if the same has prejudiced the accused person in any manner. The Hon’ble Apex Court in the case of State of Punjab v. Balbir Singh: (1994) 3 SCC 299 had observed as under:
manner affected because of the non-compliance. It is well settled that the testimony of a witness is not to be doubted or discarded merely on the ground that he happens to be an official but as a rule of caution and depending upon the circumstances of the case, the courts look for independent corroboration. This again depends on question whether the official has deliberately failed to comply with these provisions or failure was due to lack of time and opportunity to associate some independent witnesses with the search and strictly comply with these provisions….. It thus emerges that when the police, while acting under the provisions of CrPC as empowered therein and while exercising surveillance or investigating into other offences, had to carry out the arrests or searches they would be acting under the provisions of CrPC. At this stage if there is any non-compliance of the provisions of Section 100 or Section 165 CrPC that by itself cannot be a ground to reject the prosecution case outright. The effect of such noncompliance will have a bearing on the appreciation of evidence of the official witness and other material depending upon the facts and circumstances of each case…..
22. We have also already noted that the searches under the NDPS Act by virtue of Section 51 have to be carried under the provisions of CrPC particularly Sections 100 and 165. The irregularities, if any, committed like independent witnesses not being associated or the witnesses not from the locality, while carrying out the searches etc. under Sections 100 and 165 CrPC would not, as discussed above, vitiate the trial….
25. The questions considered above arise frequently before the trial courts. Therefore we find it necessary to set out our conclusions which are as follows: (4-A) If a police officer, even if he happens to be an “empowered” officer while effecting an arrest or search during normal investigation into offences purely under the provisions of CrPC fails to strictly comply with the provisions of Sections 100 and 165 CrPC including the requirement to record reasons, such failure would only amount to an irregularity. (4-B) If an empowered officer or an authorised officer under Section 41(2) of the Act carries out a search, he would be doing so under the provisions of CrPC namely Sections 100 and 165 CrPC and if there is no strict compliance with the provisions of CrPC then such search would not per se be illegal and would not vitiate the trial. The effect of such failure has to be borne in mind by the courts while appreciating the evidence in the facts and circumstances of each case.”
24. This Court, in Prithvi Pal Singh v. State: 2000 SCC OnLine Del 182 and Thomas Karketta v. State: 2015 SCC OnLine Del 11609, acquitted the accused persons therein after observing that the investigating authority had failed to join witnesses despite sufficient time to procure their presence. It was also observed that there was nothing on record to show that the investigating authority had sought to serve notice under Section 100 of the CrPC which showed that no serious effort was made by the investigating authority to join public persons in the investigation.
25. This Court, in the case of Ram Prakash v. State: 2014 SCC OnLine Del 6936, while acquitting the accused person therein, had taken into account the shoddy investigation conducted by the prosecution on account of lack of videography and found the prosecution case to be unbelievable. The Court had observed as under:
23. Also clearly there are CCTV cameras all over the place outside the Old Delhi Railway Station including its parking lot. There was no effort made to collect the CCTV footage of the relevant time. Not only would it have showed how the Appellant reached the spot with the three bags but also it could have been placed on record to show the raid placed on record to shown the raid as it took place.”
26. Almost a decade later, it is abysmal to note that the practice of such mechanical explanations for non-association of public witnesses being offered in almost all cases involving seizure of contraband by the police has continued.
27. Further, the learned Trial Court rightly pointed out significant contradictions in the testimonies of prosecution witnesses regarding the location, identification, and apprehension of the accused. PW-3 (ASI Dushyant Kumar) stated that he knew the respondent’s house number after questioning the informer, whereas PW-5 (HC Kuldeep) and PW-12 (Ct. Pawan) contradicted this claim, revealing inconsistencies in the chain of events leading to the raid.
28. Such discrepancies create reasonable doubt about the prosecution's narrative, undermining the integrity of their case.
29. This procedural lapse raises serious doubts about the credibility of the seizure and subsequent proceedings. The reliance placed by the Trial Court on Mohd. Masoom v. State of NCT of Delhi: 219 (2015) DLT 271, which criticizes the routine explanation of “passersby refusing to join the raid”, is entirely justified. The absence of independent witnesses in such circumstances further diminishes the reliability of the prosecution’s case.
30. The learned Trial Court also observed that the raiding party did not comply with Section 42 of the NDPS Act in so far as it mandates obtaining prior approval or authorization for a search and seizure. Section 42 of the NDPS Act is set out below: “42. Power of entry, search, seizure and arrest without warrant or authorisation.—(1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of Central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a 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 knowledge 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 Chapter V-A 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 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 V-A 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 if such officer has reason to believe that a search warrant or authorisation 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 sunset and sunrise after recording the grounds of his belief. (2) Where an officer takes down any information in writing under subsection (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior.”
31. Section 42(1) of the NDPS Act provides that any authorised officer can carry out search between sunrise and sunset without warrant or authorisation. However, in the event the search has to be made between sunset and sunrise, it is mandatory to obtain warrant unless the officer has reasons to believe that a search warrant or authorisation cannot be obtained without affording the opportunity for escape of the offender which grounds of his belief have to be recorded. In the present case, the Investigating Officer (PW-3) conducted a house search of the accused after sunset and before sunrise without obtaining mandatory search warrants or authorization from higher officers. The testimony of PW-3 indicates that he did not record any reasons for believing that obtaining a search warrant might lead to the loss, damage, or concealment of contraband. This omission shows a blatant disregard for the statutory requirement of documenting exigencies. During cross-examination, PW-3 admitted that the search was conducted based on personal expectations of recovering additional contraband, rather than following prescribed legal protocols. He also stated that he could not contact the ACP or Inspector of his unit to obtain proper authorization for the search. Such non-compliance strikes at the root of the prosecution’s case and renders the evidence inadmissible.
32. The Hon’ble Apex Court in State of Rajasthan v. Jagraj Singh: (2016) 11 SCC 687, held as under: “26. A Constitution Bench of this Court in State of Punjab v. Baldev Singh [State of Punjab v. Baldev Singh, (1999) 6 SCC 172: 1999 SCC (Cri) 1080] had occasion to consider the provisions of the NDPS Act and several earlier judgments of this Court. The Constitution Bench noticed that the earlier judgments in Balbir Singh case [State of Punjab v. Balbir Singh, (1994) 3 SCC 299: 1994 SCC (Cri) 634] have found approval by a three-Judge Bench in Saiyad Mohd. Saiyad Umar Saiyad v. State of Gujarat [Saiyad Mohd. Saiyad Umar Saiyad v. State of Gujarat, (1995) 3 SCC 610: 1995 SCC (Cri) 564] and a discordant note was struck by two-Judge Bench in State of H.P. v. Pirthi Chand [State of H.P. v. Pirthi Chand, (1996) 2 SCC 37: 1996 SCC (Cri) 210]. The Constitution Bench approved the view of this Court in Balbir Singh case [State of Punjab v. Balbir Singh, (1994) 3 SCC 299: 1994 SCC (Cri) 634] that there is an obligation on authorised officer under Section 50 to inform the suspect that he has right to be informed in the presence of the gazetted officer. It was held by the Constitution Bench that if search is conducted in violation of Section 50 it may not vitiate the trial but that would render the recovery of illicit articles suspect and vitiates the conviction and sentence of the accused. What is said about non-compliance with Section 50 is also true with regard to non-compliance with Section 42 of the Act.”
33. It is a settled principle of law that an appellate court should be slow to interfere with an acquittal unless the findings of the Trial Court are perverse or contrary to the evidence on record. In the present case, the Trial Court’s findings are neither arbitrary nor unreasonable; instead, they are based on a meticulous evaluation of evidence and adherence to established legal principles. The Trial Court’s judgment is consistent with the principle that in cases under the NDPS Act, strict compliance with procedural safeguards is mandatory to prevent miscarriage of justice.
34. For the foregoing reasons, it is evident that the learned Trial Court’s decision to acquit the respondent is sound, reasoned, and based on a correct appreciation of both the facts and the law. The procedural safeguards under the NDPS Act were not followed, creating significant doubt about the legality of the search and seizure. Additionally, the contradictions in the testimonies of the prosecution witnesses and the lack of independent corroboration further weaken the case.
35. In the absence of any compelling reason, this Court finds no reasons to interfere with the impugned judgment and grant leave to appeal in the present case.
36. The leave petition is dismissed in the aforesaid terms. AMIT MAHAJAN, J NOVEMBER 26, 2024