Delhi High Court Upholds Acquittal in High-Profile NDPS Case

Procedural Lapses and Inadmissible Evidence Lead to Acquittal of Tauhid Khan and Others

In a significant decision, the Delhi High Court has upheld the acquittal of Tauhid Khan @ Shahid @ Lamba and others in a high-profile narcotics case under the Narcotic Drugs and Psychotropic Substances (NDPS) Act. The judgment delivered by Justice Neena Bansal Krishna cited multiple procedural lapses and inadmissibility of evidence as critical factors leading to the acquittal.

The case revolved around the alleged possession and distribution of substantial quantities of heroin by the accused, including Tauhid Khan, Ashhab Khan @ Sabbu Khan, and Mohd. Tabrez. The prosecution's case was primarily based on secret information, electronic interceptions, and recoveries linked to the accused. However, the court found significant inconsistencies and procedural errors in the handling of the case.

One of the critical aspects of the judgment was the non-compliance with Section 42 of the NDPS Act, which mandates the recording and communication of secret information to a superior officer. The court noted serious contradictions in the testimonies of police officers regarding the receipt and handling of the secret information, raising doubts about the authenticity of the investigation.

The absence of independent public witnesses during the recoveries and the reliance solely on police witnesses further weakened the prosecution's case. The court highlighted that the lack of independent witnesses cast doubt on the authenticity of the recoveries, especially when procedural lapses were evident.

A major blow to the prosecution was the inadmissibility of electronic evidence due to the absence of a mandatory Section 65B Certificate under the Indian Evidence Act. The court held that the CDs containing intercepted calls were secondary electronic evidence, and without the requisite certification, they could not be admitted as evidence, rendering the voice samples inconsequential.

Moreover, the prosecution failed to establish the possession of the premises from where the narcotics were allegedly recovered, as the property owners turned hostile and did not support the prosecution's claims.

The court also emphasized that the initial burden of proof lies with the prosecution to establish foundational facts beyond reasonable doubt. The failure to prove possession invalidated the statutory presumptions under Sections 35 and 54 of the NDPS Act.

In light of these findings, the Delhi High Court concluded that the prosecution failed to establish the case beyond reasonable doubt and upheld the acquittal of the accused. The judgment highlights the importance of strict adherence to procedural safeguards and the evidentiary standards required under the NDPS Act.

Bottom Line:

NDPS Act - Procedural lapses such as failure to comply with Section 42 NDPS Act, lack of independent public witnesses, and inadmissible electronic evidence under Section 65B of the Indian Evidence Act, 1872, render the prosecution case doubtful, leading to acquittal of accused persons.

Statutory provision(s): NDPS Act Sections 21, 29, 35, 42, 54; Indian Evidence Act, 1872 Section 65B; Code of Criminal Procedure, 1973 Section 378

State of NCT of Delhi v. Tauhid Khan @ Shahid @ Lamba, (Delhi) : Law Finder Doc Id # 2801263