Dharambir Thakur & Anr vs The State (Govt. Of Nct Of Delhi)
2026 Latest Caselaw 1241 Del

Delhi High Court

Dharambir Thakur & Anr vs The State (Govt. Of Nct Of Delhi) on 27 February, 2026

                          *      IN THE HIGH COURT OF DELHI AT NEW DELHI
                          %                                 Judgment Reserved on: 23.02.2026
                                                            Judgment pronounced on: 27.02.2026
                          +      CRL.A. 499/2018
                                 DHARAMBIR THAKUR & ANR.
                                                                                     .....Appellant
                                                   Through: Mr. Sudhansu Palo, Advocate with Mr.
                                                            Surinder Roy, Mr. Rajesh Palo and Mr.
                                                            Mihir Kumar Jena, Advocates

                                                   versus

                                 THE STATE (GOVT. OF NCT OF DELHI)                .....Respondent
                                                   Through: Mr. Utkarsh, APP for the State.

                                                   JUDGMENT

CHANDRASEKHARAN SUDHA, J.

1. In this appeal filed under Section 374(2) Cr.P.C., the

accused persons, two in number, in Sessions Case No.2050/2016

on the file of the Additional Sessions Judge-04 and Special Judge

(NDPS), South-East District, Saket Courts, Delhi, challenge the

judgement dated 27.02.2018 and order on sentence dated

28.02.2018, as per which they have been convicted and sentenced

for the offence punishable under Section 20 of the Narcotic Drugs

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

2. The prosecution case is that on 24.07.2012at 10:30

P.M.,both the accused persons were found in possession of 201

Kilograms of ganja in front of Suraj Apartment, Main Road, Suraj

Kund-Prahladpur Road in a three wheeler bearing no. HR-38-T-

2626, which was driven by accused no.1(A1) and accused no.

2(A2) was sitting in the same with the bags containing ganja.

Hence, as per the chargesheet/final report dated 08.12.2015, the

accused persons are alleged to have committed the offence

punishable under Sections 20, 25 and 29 of the NDPS Act.

3. On appearance of the accused persons before the trial

court, copies of all the prosecution documents were supplied to

them in compliance with Section 207 Cr.P.C. On 13.01.2016,

Charge under Section 20 of the NDPS Act was framed against the

accused persons, which was read over and explained to them, to

which they pleaded not guilty.

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

PWs. 1 to 12 and Exhibits PW1/A, PW2/A-H, PW4/A-B, PW5/A-

C, PW6/A-B, PW7/A, PW8/A, PW9/A-C, PW11/A-C, P1-P4 and

Mark N1, N2 and X were marked.

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

persons was questioned under Section 313(1)(b) Cr.P.C. with

regard to the incriminating circumstances appearing against them

in the prosecution evidence. Both the accused persons denied all

those circumstances and maintained their innocence and stated that

they had been falsely implicated.

6. After questioning the accused persons under Section

313(1)(b) Cr.P.C, compliance of Section 232 Cr.P.C was

mandatory. In the case on hand, no hearing as contemplated under

Section 232 Cr.P.C is seen made by the trial court. However, non-

compliance of the said provision does not, ipso facto vitiate the

proceedings, unless omission to comply with the same is shown to

have resulted in serious and substantial prejudice to the accused

(See Moidu K. vs. State of Kerala, 2009 (3)KHC 89 : 2009 SCC

OnLine Ker 2888). Here, the accused persons have no case that

non-compliance of Section 232 Cr.P.C has caused any prejudice to

them.

7. No oral or documentary evidence were adduced by the

accused persons.

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

consideration of the oral and documentary evidence, vide

judgment dated 27.02.2018 convicted both the accused persons for

the offence punishable under Section 20 of the NDPS Act and vide

order on sentence dated 28.02.2018 sentenced both the accused

persons to undergo rigorous imprisonment for 10 years along with

fine of ₹1,00,000/- each, and in default of payment of fine, to

undergo simple imprisonment for one year each. Aggrieved, the

accused persons have preferred this appeal.

9. It was submitted by learned counsel for the appellants

that the impugned judgment suffered from serious infirmities as

the prosecution case was fraught with material contradictions and

inconsistencies which went to the root of the matter. It was

contended that the testimony of the witnesses regarding receipt of

secret information, constitution of the raiding party, the vehicles

used, the manner of apprehension, and the sequence of events is

not consistent. Particular emphasis was laid on the fact that DD

No. 2 reflected apprehension of only one person, whereas the

prosecution case was that both the appellants/accused persons were

apprehended together. These discrepancies, it was argued,

rendered the prosecution version doubtful and the conviction

unsustainable, especially in a case under the NDPS Act where

strict scrutiny of evidence is required.

9.1. It was further submitted that the prosecution had failed

to associate any independent witness despite availability. The

alleged recovery took place at a public place, yet no public person

was joined in the proceedings and no satisfactory explanation has

been offered for such omission. Even the driver of the Innova

vehicle, who is alleged to have taken the raiding party to the spot,

was never examined. Likewise, although the ownership documents

of the auto rickshaw from which the contraband is alleged to have

been seized were placed on record in the name of one Pawan

Kumar, the said person was not examined. The non-examination of

these material witnesses create serious doubt regarding the fairness

of the investigation and the authenticity of the alleged recovery,

argued the learned counsel.

9.2. The learned counsel also submitted that there has been

non-compliance of the mandatory provisions of Sections 42 and 50

of the NDPS Act. The search was conducted after sunset without

proper recording of reasons demonstrating inability to obtain a

warrant or authorisation, thereby violating Section 42 of the NDPS

Act. Further, the alleged compliance of Section 50 of the NDPS

Act was stated to be mechanical, particularly when the appellants

were said to be illiterate and the refusal was recorded by the

investigating officer himself without independent attestation. It

was argued that it was the bounden duty of the investigating

agency to conduct the search in the presence of a Gazetted Officer

or Magistrate in a fair and transparent manner, and that such

perfunctory compliance defeated the statutory safeguards intended

to protect the accused.

9.3. The learned counsel also contended that the prosecution

had failed to establish complete and reliable link evidence. The

entries relating to sample pullandas, seizure memo, FSL form and

DD entries were alleged to be ante-dated, raising doubt about the

sanctity of the chain of custody. It was specifically pointed out that

the pullandas were allegedly sealed on 05.07.2015, whereas the

samples were sent to the FSL only on 08.07.2015, and no

satisfactory explanation for this delay is forthcoming. This delay, it

was argued, cast serious doubt on the safe custody of the case

property during the intervening period.

9.4. Lastly, it was submitted that even the trial court had

recorded this aspect in paragraph 45 of the impugned judgment,

yet proceeded to convict the appellants without properly

addressing the consequence of the delay on the integrity of the

prosecution case. The defence plea that the appellants were falsely

implicated and apprehended from elsewhere has not been properly

considered by the trial court.

10. Per contra,the learned Additional Public Prosecutor, in

response to the submissions advanced on behalf of the appellants,

supported the impugned judgment and submitted that the

conviction was based on cogent and consistent evidence. Referring

to paragraph 35 of the impugned judgment, it was contended that

due compliance of Section 50 of the NDPS Act stood proved

through the testimonies of PW2, PW3 and PW5. Separate notices

under Section 50 were served upon each accused and they were

informed of their right to be searched before a Gazetted Officer or

Magistrate.But they declined to exercise such right. Their replies

bore their signatures, and the carbon copies (marked N1 and N2)

were recovered during personal search and deposited in the

malkhana. No suggestion disputing recovery or deposit of these

copies was put to PW9 or PW12, thereby establishing proper

compliance.

10.1. It was further submitted that the recovery proceedings

was duly proved and the evidence remained unshaken. The three

seater rickshaw(TSR) was searched, seven plastic bags containing

ganja were recovered, weighed and samples were drawn and

sealed with the seal "OS" at the spot. The rukka, sealed parcels and

FSL form were duly handed over to PW-3, who delivered them at

the police station. The SHO affixed his seal "RK" before deposit in

the malkhana, and the entries were made in Register No. 19. The

witnesses corroborated each other on all material particulars and

no material contradiction was elicited in cross-examination.

10.2. With regard to compliance of Sections 42 and 57 of the

NDPS Act, it was submitted that the reports were duly prepared

and forwarded to the superior officer, which stands corroborated

by the testimony of PW6. It was further argued that, in any event,

the recovery was effected from a public place, namely, a TSR at a

public road, and therefore Section 43 of the NDPS Act would

apply, rendering the objection under Section 42 untenable. As

regards the link evidence, it was submitted that the sealed sample

parcels bearing the seals of "OS" and "RK" were sent to FSL

Rohini through PW3 vide proper road certificate; entries were

made in Register No. 19; the parcels were received at FSL in intact

condition; and PW8 confirmed that the seals tallied and that the

substance tested positive for ganja. There was no suggestion of

tampering at any stage.

10.3. It was also submitted that there was no material

contradiction in the testimony of PW1 regarding the report under

Section 57. The photographs of the TSR were exhibited and not

disputed. The plea that the appellants had been apprehended from

elsewhere was never put to any prosecution witness nor

specifically taken in their statements under Section 313 Cr.P.C.,

and therefore appears to be a mere afterthought. It was accordingly

urged that the prosecution had proved its case beyond reasonable

doubt and the appeal deserves to be dismissed.

11. Heard both sides and perused the records.

12. The only point that arises for consideration in this

appeal is whether there is any infirmity in the impugned

judgement, calling for an interference by this Court

13. Before proceeding further, I shall briefly refer to the

evidence on record. PW5, Sub-Inspector, South-East Region,

Crime Branch Police Station deposed that on 05.07.2015 at about

8:30 PM, he received information that a person named Dharmbir,

resident of Ballabhgarh, Haryana, would be arriving from the side

of Faridabad carrying drugs and could be apprehended near

Surajkund Road, Prahladpur. After making preliminary inquiries

and satisfying himself about the credibility of the information, he

conveyed the information to PW10 (Inspector, South Eastern

Range, Crime Branch, New Delhi), who in turn informed the same

to PW6 (ACP, ISC & SER, Crime Branch New Delhi) over phone,

whereupon directions were received from PW6 to conduct a raid.

PW6 directed him to constitute a raiding party He then reduced the

secret information into writing vide DD No. 8 and handed over a

copy thereof to PW10 in compliance of Section 42 of the NDPS

Act. Thereafter, he constituted a raiding party comprising himself,

PW3; PW2; Head Constables Sunil Gaur and Pradeep, Constables

Rohit and Vinod. The raiding team left the Crime Branch office at

about 9:30 PM in private vehicles after making a departure entry

and reached near Suraj Apartments, Prahladpur at about 10:00 PM.

According to PW5, he requested several persons, enroute, to join

the raiding team, but none agreed.

13.1. PW5 further deposed that after taking positions near

Suraj Apartments, a green coloured TSR bearing registration No.

HR-38T-2626 was noticed coming from Surajkund side after about

15 to 20 minutes, as pointed out by the secret informer. The TSR

stopped on the main road in front of Suraj Apartments, and its

driver and another person alighted and began conversing while

waiting for someone. After waiting for about half an hour, when

no one arrived, the raiding party apprehended both the persons.

PW5 disclosed his identity and informed them that he had

information regarding transportation of drugs in the TSR. He

apprised both accused of their right to be searched in the presence

of a gazetted officer or magistrate. Notice under Section 50 of the

NDPS Act was served on both the persons, vide Exhibit PW2/A

and Exhibit PW2/B. Since they stated that they were illiterate,

PW5 read over the contents of the notice to them. Both of them

declined to avail their rights. Their replies namely, Exhibit PW5/A

and Exhibit PW5/B, were recorded on the notices and the same

signed by them.. The said two persons disclosed their names as

Dharmvir Thakur (A1) and Nizamuddin (A2). PW5 conducted

their personal search, but nothing incriminating was recovered, and

Exhibit PW2/C memo and Exhibit PW2/D memo were prepared.

13.2. PW5 further deposed that thereafter the TSR was

searched and four yellow and three white plastic bags were found

inside. Upon opening, the bags were found to contain dry leaves

and seeds emitting smell of ganja. Each bag was weighed

separately: the first contained 28 kg, the second 31 kg, the third 32

kg, the fourth, fifth and sixth 30 kg each, and the seventh 20 kg,

totalling 201 kg. Two samples of 250 grams each were drawn from

each bag, placed in plastic polythene tied with rubber bands and

converted into cloth parcels. The bags were marked Serial Nos. A

to G, and the samples were marked A1, A2 to G1, G2. All parcels

were sealed with the seal "OS". The case property and samples

were seized vide seizure memo Exhibit PW2/B. He filled up the

FSL form and handed over the seal after use to PW2. He prepared

the rukka and handed it over to PW3 along with the sealed sample

pulindas and carbon copy of the seizure memo for registration of

the FIR and for handing over the case property to the SHO. When

PW9, Sub-Inspector reached the scene along with Prithvi Singh,

Head Constable, he handed over both the accused persons and the

case property to the former for further investigation. The site plan

was prepared at his instance vide Exhibit PW5/C. On the following

day, he prepared the report under Section 57 of the NDPS Act and

forwarded it through Inspector Pankaj Singh to ACP K.P.S.

Malhotra (PW6). PW5 identified the case property, including the

seven sealed sample parcels (Exhibit MO-1 to MO-7) and the

seven plastic bags (Exhibit MO-8 to MO-14) which contained the

contraband articles.

13.3. PW5, in his cross-examination, deposed that the

informer met him for the first time and did not disclose the source

of contraband, the recipient, the mode of transport, or the exact

quantity. He further deposed that the IO kit, including the

weighing machine, was his personal property and not issued by the

department. The distance between his office and the spot was

approximately 10-11 kilometres. He further deposed that private

vehicles were used, including his own Wagon-R bearing

registration No. DL-8CU-3217 and a hired Innova arranged by

PW10, driven by a driver whose name he does not know. PW5

admitted that no photographs of the TSR were taken at the spot.

He confirmed the presence of a CNG station near the scene but he

was unable to say regarding the presence of a guard at the gate of

Suraj Apartments round the clock or the presence of a priest in the

temple situated adjacent to the gate of Suraj Apartments. PW5 was

also unable to say whether there was a small market or an ATM

inside the compound of the apartment complex. PW5 further

deposed that the contraband was partly in loose form and partly in

solid form and was weighed on an electronic machine. No handing

over or taking over memo was prepared regarding his seal, which

was returned to him by PW2 the following day. PW3 left the spot

at about 01:30 AM with the rukka in the Innova car and did not

return. PW5 denied the suggestions that no secret information was

received, or that no raid had been conducted or, that nothing had

been recovered from the accused, or that the case property was

planted, or that the accused were apprehended from M/s Vijay

Spring Limited, Kelly Village, Palwal, Haryana, and falsely

implicated.

14. PW1, Assistant Sub-Inspector, produced Exhibit

PW1/A the report under Section 57 NDPS Act received in the

office of ACP, Crime Branch, New Delhi, sent by PW 5 . PW1, in

his cross examination, deposed that PW5 had come to the office to

deliver Exhibit PW6/A report on 06.07.2015 at about 10A.M. He

denied the suggestion that all the entries and documents produced

by him are ante-time and ante-dated.

15. PW2 and PW3 who were members of the raid party

supported the version of PW5.

16. PW4, Head Constable, Crime Branch, Police Station,

Malviya Nagar deposed that on 06.07.2015, he was on duty as

Duty Officer. At about 02:15 AM, Head Constable Jagpal (PW3)

bought rukka sent by PW5, based on which he registered the

crime, that is, Ext. PW4/B FIR. After registration of the crime, a

copy of the FIR along with the original rukka was given to PW3

for giving it to Sub-Inspector Vishal (PW9) for investigation.

17. PW6, the then ACP (ISC & SER), Crime Branch,

Delhi, deposed that on 05.07.2015, he received telephonic

information from PW10 regarding secret information obtaining

about two persons transporting contraband. He directed PW10 to

conduct a raid in accordance with law. He further deposed that on

the following day, reports under Sections 57 and 42 of the NDPS

Act were received in his office, i.e., Exhibit PW6/A and Exhibit

PW6/B respectively.

17.1. PW6, in his cross-examination, denied the suggestion

that the reports under Sections 42 and 57 of the NDPS Act were

manipulated and that they were not received in his office on

06.07.2015.

18. PW7, the then SHO, Crime Branch Police

Station,Malviya Nagar, New Delhi, deposed that on 06.07.2015 at

about 2:20 AM, PW3 came to his office and produced 21 sealed

parcels duly sealed with the seal "OS", along with a copy of the

seizure memo relating to ganja and the original FSL Form for

proceedings under Section 55 of the NDPS Act. He inquired about

the FIR particulars and mentioned the same on all the parcels, the

FSL Form and the copy of the seizure memo. He affixed his seal

"RK" on all the aforesaid articles and signed the pullandas, the

FSL Form and the seizure memo. Thereafter, he called the

MHC(M), HC Jag Narain (PW12), and handed over the sealed

parcels, FSL Form and seizure memo to the latter for deposit in the

malkhana. Necessary entries were made in Register No. 19, which

were also signed by him. He recorded DD No. 3 at about 2:55 AM

in this regard, the copy of which is Ex. PW7/A. PW7 identified the

case property, that is, Ex. MO-1 to MO-7 and MO-8 to MO-14.

19. PW8, Senior Scientific Officer (Chemistry), FSL,

Rohini, deposed that on 09.07.2015, seven sealed parcels bearing

the seals of "OS" and "RK" were assigned to him for chemical

examination. He conducted the examination between 16.07.2015

and 27.07.2015 through various scientific tests and found that all

the parcels contained ganja (cannabis) vide Exhibit PW8/A FSL

Report. After examination, the parcels were resealed with the seal

of "AY FSL DELHI". The report was placed in a sealed cover and

forwarded to the SHO, Crime Branch, Malviya Nagar. PW8, in his

cross-examination, deposed that the contraband inside the parcels

was in compressed form. He deposed that the parcel bags were

intact, without any holes or tears, and were almost of similar size.

20. PW9, Sub-Inspector, Crime Branch, Police Station,

Sunlight Colony, deposed regarding the formalities that were

conducted during the raid. PW9, in his cross-examination,

admitted that 2 to 3 persons were requested to join the

investigation but none agreed. He did not call any resident or

watchman of Suraj Apartments to join the proceedings. PW9

confirmed the presence of a temple near the spot but could not

state about a priest residing there. PW9 also could not confirm the

existence of a toll tax office nearby and stated that no toll receipt

was recovered from the accused or the TSR. PW9 deposed that the

registered owner of the TSR is one Pawan Kumar, and that when

he went to the address of the said person, one Chander Prakash

informed him that Pawan Kumar had sold the property and had

shifted to some other place. PW9 admitted that he had not recorded

the statement of Chander Prakash or cited him as a witness. He

denied the suggestions that he had not visited the scene or that the

documents had been prepared at the instance of PW5 to falsely

implicate the accused, or that the entries were ante-dated or ante-

timed.

21. PW10 deposed that on 05.07.2015, while he was posted

as Inspector, South Eastern Range, Crime Branch, New Delhi, at

about 9:00 PM, PW5 came to his office along with a secret

informer who shared a confidential information. He made inquiries

from the secret informer and, upon being satisfied about the

credibility of the information received, informed PW6 ACP over

phone and on receiving directions from the ACP, instructed PW5

to conduct a raid in accordance with law. He further deposed that

on the following day, PW9 produced both the accused persons

before him.

21.1. PW10, in his cross-examination, deposed that the

informer had not disclosed the source of contraband, the exact

place from where the accused would bring the ganja, the mode of

transport, the quantity of ganja, or the names and number of

persons to whom the accused had supplied contraband in the past.

22. PW12, the then MHC(M) Crime Branch, Police station,

Malviya Nagar, deposed that on 06.07.2015, the SHO, Crime

Branch handed over to him sealed case property consisting of 14

cloth pullandas and 7 plastic kattas along with the FSL Form and

copy of the seizure memo for deposit in the malkhana. The parcels

were sealed with the seal of "OS" and further bore the seal of

"RK" affixed by the SHO. He made the corresponding entry in

Register No. 19 vide Entry No. 2378, marked as Exhibit PW11/A

(Colly). PW12 further deposed that the SHO had signed the

register. On 08.07.2015, on the directions of PW9, the

Investigating Officer, seven sealed cloth pullandas along with the

FSL Form were sent to FSL Rohini through PW5 vide RC No.

196/21, marked as Exhibit PW11/B. PW12, in his cross-

examination, denied the suggestion that the entries in Register No.

19 were manipulated or ante-dated or that he was deposing falsely.

23. As per the impugned judgment, the appellants stand

convicted for the offence punishable under Section 20 of the

NDPS Act. The contraband seized was 201 kgs of ganja.

Therefore, the conviction is apparently for the offence punishable

under Section 20(b)(ii)(c) of the NDPS Act. To sustain a

conviction under the said provision, the prosecution is required to

establish (i) recovery of cannabis (ganja); (ii) that such recovery

was from the conscious possession of the accused; and (iii) that the

quantity involved attracts the rigours prescribed for 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 present case, the seizure alleged is

of 201 kilograms of ganja from a TSR bearing registration No.

HR-38T-2626, in which both the appellants were present. Exhibit

PW8/A FSL report confirms that the substance examined was

ganja (cannabis). The quantity of 201 kilograms is indisputably

commercial quantity. The first and third ingredients of the offence

thus stand established.

24. The crucial question that falls for determination is

whether the prosecution has proved that the said contraband was

recovered from the conscious possession of both the appellants and

whether the mandatory procedural safeguards under the NDPS Act

were complied with.

25. The testimony of PW5, the detecting officer, finds

material corroboration from PW2 and PW3, who were members of

the raiding party. Their evidence is consistent on material

particulars, namely, receipt of secret information, reduction of the

same into writing vide DD No. 8, formation of the raiding party,

the place and time of apprehension, recovery of seven plastic bags

from the TSR, the quantity seized, drawing of samples, sealing

with the seal "OS", preparation of seizure memo and filling of the

FSL form. Nothing substantial has been elicited in cross-

examination so as to discredit the core of the seizure. Both

appellants were apprehended at the spot; appellant No.1 was

driving the TSR and appellant No.2 was present therein along with

the bags containing ganja. The contraband was recovered from the

vehicle under their joint control. In the facts of the present case,

conscious possession stands established against both the

appellants.

26. As regards compliance of Section 50 of the NDPS Act,

notices were served separately upon both appellants. Their replies,

bearing their signatures, were recorded on the notices. The carbon

copies of the said notices were recovered during personal search

and deposited in the malkhana, as spoken to by PW9 and PW12.

Though the recovery in the present case was effected from the

TSR and not from the personal search of the appellants, the

prosecution has nevertheless established that they were apprised of

their right to be searched before a Gazetted Officer or Magistrate

and that they declined to avail the same. It is well settled that the

provisions of Section 50 of the NDPS Act apply only to personal

search and not to search of a vehicle [See State of Punjab v.

Baljinder Singh, (2019) 10 SCC 473]. In the case on hand, the

contraband was seized from the vehicle and not from the personal

search of the accused and so Section 50 of the NDPS Act does not

come into play.

27. It was submitted by the learned counsel for the

appellants that there is material inconsistencies between the

testimony of PW1 and PW5 regarding Ext. PW1/A report under

Section 57 of the NDPS Act. PW1 has a case that he had produced

the report under Section 57 of the NDPS Act before the ACP

whereas PW5 has a different version. This argument does not

appear correct because it is not the version of PW1 that he had

produced the report before the ACP. On the other hand, his case in

the chief examination is that the report was received in the office

of the ACP which was sent by PW5. PW1 only produced the said

report before the trial court. It is true that in the cross-examination,

PW1 deposed that PW5 had personally come to the office of the

ACP to hand over Ext. PW1/A report under Section 57 of the

NDPS Act. However, PW5 has no such case. PW5 deposed that he

had sent the said report through Inspector Pankaj Singh (PW10) to

be sent to the ACP (PW6). However, this inconsistency regarding

the actual person who handed over the report to PW6 is not fatal in

the light of the remaining materials before the Court.

28. The custody of the case property has also been duly

proved. PW7, the then SHO, deposed that sealed parcels bearing

the seal "OS" were produced before him; he affixed his seal "RK"

on the parcels and the FSL form, mentioned the FIR particulars

and caused the same to be deposited in the malkhana. PW12

proved the relevant entry in Register No. 19. The sealed sample

parcels were sent to FSL Rohini vide proper road certificate.

Exhibit PW8/A FSL report records that the seals were intact and

tallied with the specimen seals. The chain of custody thus stands

proved and there is no material suggesting tampering. Mere delay

in forwarding the samples, in the absence of any evidence of

tampering and when the seals were found intact at the time of

examination, is not fatal to the prosecution. The contention

regarding delay in sending the samples to FSL does not merit

acceptance in the absence of any evidence of tampering, especially

when the seals were found intact at the time of examination.

29. The learned counsel for the appellants laid considerable

emphasis on the absence of independent witnesses. The testimony

of PW5 and PW9 indicate that attempts were made to associate

persons, both enroute and at the spot, though none agreed to join

the proceedings. The mere absence of independent witnesses does

not, in all circumstances, render the prosecution case doubtful. As

observed in Surinder Kumar v. State of Punjab, (2020) 2 SCC

563, the testimony of a witness cannot be discarded merely on the

ground that he is an official witness; what is required is careful

scrutiny of such evidence. In the present case, the official

witnesses have been subjected to extensive cross-examination and

nothing material has been elicited so as to discredit the seizure.

Their version remains consistent on material particulars and

inspires confidence. In such circumstances, the absence of

independent witnesses, by itself, does not dent the prosecution

case.

30. The movement of the raiding party is reflected in

contemporaneous DD entries and has been uniformly spoken to by

the prosecution witnesses. The use of private vehicles or non-

examination of the driver does not create any material

inconsistency as to the place or timing of apprehension. Similarly,

non-examination of the registered owner of the TSR has also not

affected the proof of seizure of the contraband. During the

examination of PW5 before the trial court, it was revealed that the

TSR used for transporting the contraband was not in a running

condition and that it could be brought to the Court only with the

aid of a crane. The photographs of the TSR, namely, Ext. P1 to P4

produced were brought in evidence and marked without any

objection on behalf of the appellants. That being the position, non-

examination of the driver of the TSR is also not fatal to the

prosecution case.

31. Another argument advanced is that despite the trial

court noticing in paragraph 45 of the impugned judgment that there

are contradictions in the testimony of the prosecution witnesses,

the same has been ignored and a finding of guilt arrived at which is

erroneous. I am unable to agree to this argument also advanced by

the learned defence counsel. No case can be proved with

mathematical precision. Inconsistencies are bound to arise in the

testimony of the witnesses. The question to be considered is

whether the inconsistencies are material and whether they have

affected the prosecution case. In the case on hand, no

contradictions as per the procedure contemplated under Section

145 of the Indian Evidence Act, 1872 has been proved. The

inconsistency pointed out is not that material and it has in no way

affected the prosecution case. Nothing was brought out in the

examination of the witnesses to disbelieve their testimony. So I

find no reason(s) to disbelieve them or discard their testimony.

32. The burden is always on the prosecution to establish its

case beyond reasonable doubt. The presumption contemplated

under Sections 35 and 54 of the NDPS Act would come into

operation only when the prosecution establishes the foundational

facts. [See Gorakh Nath Prasad v. State of Bihar, (2018) 2 SCC

305 and Naresh Kumar v. State of H.P., (2017) 15 SCC 684]. In

the case on hand, the prosecution has discharged its initial burden

by proving seizure of 201 kilograms of ganja from the TSR in the

conscious possession of both the appellants and by establishing

compliance with the statutory safeguards.

33. Once possession is established, the onus shifts to the

accused to rebut the presumption, though not beyond reasonable

doubt but on a preponderance of probabilities. (See Harbhajan

Singh v. State of Punjab, AIR 1966 SC 97; V.D. Jhingan v.

State of U.P., AIR 1966 SC 1762; and Munshi Ram v. Delhi

Administration, AIR 1968 SC 702). In the present case, the

appellants have merely denied the incriminating circumstances in

their statements under Section 313(1)(b) Cr.P.C. and have asserted

false implication. No defence evidence has been adduced to

probabilise their version. The plea that they were apprehended

from elsewhere was neither substantiated by evidence nor

probabilised by the materials on record.

34. The reports under Sections 42 and 57 of the NDPS Act

demonstrate communication of information and subsequent

reporting to superior officers. The evidence of PW6 corroborates

receipt and endorsement of such reports. It is also pertinent to note

that the recovery having been effected from a TSR on a public

road, the case would fall within the ambit of Section 43 of the

NDPS Act, and therefore the objection regarding non compliance

of Section 42 does not carry the matter any further. The statutory

safeguards embodied in Chapter V of the NDPS Act have thus

been adhered to. The presumption under Section 54 arises only

after the prosecution establishes, beyond reasonable doubt, that the

contraband was recovered from the conscious possession of the

accused and that mandatory procedural requirements were

complied with. (See Madan Lal v. State of Himachal Pradesh,

AIR 2003 SC 3642). That threshold stands satisfied in the present

case.

35. In the light of the overall re-appreciation of the oral and

documentary evidence, this Court finds that the prosecution has

proved beyond reasonable doubt that the appellants were found in

conscious possession of 201 kilograms of ganja (cannabis), a

commercial quantity, and thereby committed the offence

punishable under Section 20(b)(ii)(c) of the NDPS Act. In the light

of the quantity of contraband seized, the sentence also does not call

for any interference. Thus, I do not find any infirmity in the

findings of the trial court, calling for an interference by this Court.

36. In the result, the appeal sans merit is thus dismissed.

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

CHANDRASEKHARAN SUDHA (JUDGE) FEBRUARY 27, 2026 rs/kd