Recovery From Place Where Possession Of NDPS Accused Is Not Proved Can’t Be Attributed To Be Recovery From Him: Delhi High Court

The Delhi High Court held that a recovery from a place where the possession of accused is not proved under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) cannot be attributed to be a recovery from him.

The Court held thus in a Criminal Leave Petition preferred by the State under Section 378 of the Criminal Procedure Code, 1973 (CrPC), challenging the Order of the Special Judge.

A Single Bench of Justice Neena Bansal Krishna observed, “A recovery from a place where the possession of accused is not proved cannot be attributed to be a recovery from him. Moreover, no independent public witnesses were associated at the time of recovery to corroborate the authenticity of recovery.”

The Bench emphasised that a Court of law, while appreciating evidence, is not expected to act in a vacuum and the evidence must be weighed on the touchstone of probabilities and the ordinary course of human conduct.

Factual Background

As per the prosecution case, in 2012, a secret information was received that the Respondent-accused would be coming on a motorcycle via Ghazipur T-Point, to deliver heroin. A raid was conducted, but the accused did not appear. Thereafter, a similar information was again received and a raiding party was constituted. The accused was intercepted on a motorcycle and upon seeing the police, the accused attempted to flee, but was apprehended. A search of the bag he was carrying, led to the recovery of two packets, each containing 1 kg of a substance which tested positive for Heroin. During interrogation, the accused disclosed that he could get another 1 kg of heroin from a house which was rented by his cousin and subsequently, the raiding team recovered the same.

The packets were duly sealed, samples were taken, and contraband was deposited. The accused’s cousin disclosed that he used to supply heroin to one person through the Respondent. The Special Judge found numerous material contradictions in the testimony of senior police officers regarding the receipt and handling of the secret information, procedural infirmities, and inherent improbabilities in the case of the prosecution, making the very genesis of the raid doubtful. Hence, the accused persons were acquitted and this was under challenge before the High Court.

Reasoning

The High Court in view of the facts and circumstances of the case, said, “The “prudent man” test is fundamental to the evaluation of evidence. If a narrative presented by the prosecution is so inherently improbable that it defies logic and normal human behavior under the circumstances, the court is not only justified but duty-bound to view it with suspicion.”

The Court noted that the prosecution’s entire case of a criminal conspiracy and the subsequent apprehensions is built upon the foundation of intercepted telephone conversations.

“The learned Special Judge has correctly held that these CDs are secondary electronic evidence. For such evidence to be admissible, the mandate of Section 65B of the Indian Evidence Act, 1872, must be strictly complied with. This requires a Certificate from the person in charge of the computer system from which the data was retrieved, authenticating the process. The Trial Court rightly found that no such Certificate under Section 65B was placed on record by the prosecution. In the absence of this Certificate, the CDs are legally inadmissible”, it added.

The Court was of the view that the Trial Court did not “erroneously disbelieve” the chain of events based on phone interceptions; rather, it correctly refused to consider the evidence that was legally inadmissible in the first place.

“In any case, the Trial Court’s finding that the narrative was improbable is a well-reasoned and based on the evidence. The Prosecution’s own case is that upon learning of Tauhid Khan’s arrest on 24.07.2012, accused Ashhab Khan shifted a kilogram of heroin from his house to his car out of fear of being caught”, it further observed.

Conclusion

The Court remarked that it is contrary to natural human conduct that the same person, who is actively trying to conceal evidence because his associate has been arrested, would then, just two days later proceed to a crowded public place like Parade Ground for no established reason, making himself an easy target for the police.

“The Trial Court’s conclusion that this conduct is “quite unlikely” and that the “entire prosecution story is unnatural over the presence of accused at parade ground” is a logical inference based on prudence, not a mere surmise. … The findings of the Trial Court are based on a reasonable appreciation of evidence”, it also said.

The Court, therefore, concluded that the prosecution has failed to establish a case beyond reasonable doubt against the Respondents.

Accordingly, the High Court dismissed the Appeal and upheld the acquittal of the accused persons.

Cause Title- State of NCT of Delhi v. Tauhid Khan @ Shahid @ Lamba & Ors. (Neutral Citation: 2025:DHC:9334)

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