Recovery of Contraband Without Proof of Possession or Independent Witnesses Not Attributable to Accused: Delhi High Court
Isabella Mariam
The High Court of Delhi, Single Bench of Justice Neena Bansal Krishna ruled that recovery of a contraband cannot be attributed to an accused under the NDPS Act without proof of possession or the support of independent witnesses. Upholding the acquittal of three individuals charged under Sections 21(c), 25(A), and 29 of the Narcotic Drugs and Psychotropic Substances Act, the Court dismissed the State’s appeal against their exoneration. The case pertained to alleged heroin recovery and conspiracy to traffic narcotics. The Court found that inconsistencies in police evidence, absence of neutral witnesses, procedural lapses, and inadmissible electronic records undermined the prosecution’s case, concluding that the trial court had rightly granted the accused the benefit of doubt.
The case arose from an incident in July 2012 when the Special Cell of Delhi Police claimed to have received secret information that one of the accused would deliver heroin near Ghazipur T-Point. A police team conducted a raid and apprehended one of the suspects from the location, allegedly recovering two kilograms of heroin from his possession. Based on his disclosure, the police stated that another kilogram of heroin was recovered from a house in Khoda Colony, said to be rented by a co-accused. Subsequent interceptions and surveillance reportedly led to the arrest of the second accused near Jama Masjid, from whom no contraband was found, but certain chemicals and another kilogram of heroin were later recovered from a car and two houses linked to him. A third individual was arrested two days later near NH-24, where the police claimed to have seized 500 grams of heroin.
The prosecution alleged that the three accused were part of a network involved in processing and distributing heroin. It relied on the recovery memos, disclosure statements, call detail records, voice samples, and forensic reports. Thirty witnesses, mainly police personnel, were examined to support the recoveries and linkages between the accused. The prosecution invoked Sections 21(c), 25(A), and 29 of the Narcotic Drugs and Psychotropic Substances Act, which deal with possession of commercial quantities, use of premises for illegal activities, and criminal conspiracy.
The defence disputed the authenticity of the recoveries and interceptions, contending that there was no proof of actual possession, that the alleged recoveries were made without public witnesses, and that the electronic records lacked certification under Section 65B of the Evidence Act. The property owners of the premises from where recoveries were claimed denied any connection with the accused. The trial court examined these contradictions, procedural lapses, and evidentiary gaps while assessing the reliability of the prosecution’s version.
Justice Krishna, after examining the record, observed that the appellate court must be cautious while interfering with an acquittal, and should only do so if the findings are perverse or based on misapplication of law. The Court recorded that “the presumption of innocence is further strengthened by an acquittal, which should not be easily interfered unless there are cogent reasons.”
The Court noted that the prosecution’s case began with the alleged receipt of secret information, yet the officers’ accounts of how and when such information was received and conveyed to superiors were inconsistent. “This is a direct and inexplicable contradiction. It is not a minor slip of memory, but a fundamental contradiction on the manner of compliance of this mandatory procedural safeguard,” the judgment stated. The Court found that compliance with Section 42 of the NDPS Act, which requires recording and forwarding of information, was not demonstrated.
Justice Krishna noted that “lack of independent witnesses in some circumstances casts a shadow over the case of the prosecution.” The Court also stated that no credible explanation was provided for the absence of public witnesses despite recoveries in populated areas.
On the alleged call interceptions, the Court found the electronic evidence inadmissible under Section 65B of the Indian Evidence Act, as the prosecution failed to produce the mandatory certificate. “As the primary electronic evidence i.e. the CDs were inadmissible, the FSL Report comparing the voices on those CDs was rendered inconsequential,” the Court recorded. It also noted that the intercepted conversations relied upon by the prosecution were improbable, as one of the accused was already in police custody at the time of the alleged calls.
Regarding the alleged recoveries, the Court noted inconsistencies in the police version about the discovery of contraband from multiple premises. Property owners PW11 and PW23 turned hostile, denying the accused’s possession of the properties from where the narcotics were said to have been seized. “A recovery from a place where the possession of the accused is not proved cannot be attributed to be a recovery from him,” the Court stated.
The Bench also observed that the procedural lapses in sealing, handling, and documenting seized substances created significant doubt. In one instance, the seal used bore different initials from the investigating officer’s, with no explanation. “This unexplained discrepancy in a crucial procedural safeguard like sealing the case property makes the recovery process highly suspect,” the Court recorded.
Justice Krishna stated that “the learned Trial Judge did not decide on conjectures. The Court first correctly applied the law to find the primary evidence of interception inadmissible. Secondly, it rightly concluded that even if the narrative were to be considered, it was so contrary to the natural conduct of individuals involved in a criminal activity that it could not be believed.”
The Court accepted the trial court’s findings that the prosecution failed to prove foundational facts necessary to invoke statutory presumptions under Sections 35 and 54 of the NDPS Act. “These presumptions do not absolve the prosecution of its primary and initial duty to first establish the foundational facts of the case beyond all reasonable doubt,” the Court observed, citing the Supreme Court’s judgement in Madan Lal v. State of H.P.
“The Prosecution has failed to establish a case beyond reasonable doubt against the Respondents. Accordingly, the impugned judgment of acquittal dated 27.11.2020, is upheld and the Appeal is hereby dismissed.”
All pending applications were disposed of accordingly.
Case Title: State (NCT of Delhi) v. Tauhid Khan @ Shahid @ Lamba & Ors.
Neutral Citation: 2025: DHC:9334
Case Number: CRL.L.P. 202/2021 (appeal decided as CRL.A. _____/2025)
Bench: Justice Neena Bansal Krishna
