Introduction:
In the recent case Ashish v. State (CRL.A. 677/2025), the Delhi High Court, through Justice Ravinder Dudeja, delivered a crucial ruling that clarifies the evidentiary standards in narcotics cases, particularly in the context of the evolving technological framework of criminal investigations. The judgment underscored that while the use of technology—such as CCTV recordings or videography—enhances the transparency and fairness of seizure operations, the absence of such recordings cannot, by itself, invalidate the seizure of contraband if other pieces of evidence sufficiently corroborate the prosecution’s case. The decision came in an appeal filed by a convict seeking suspension of sentence after being sentenced to ten years of rigorous imprisonment for possession of 25.086 kg of ganja. The Court held that the lack of CCTV footage or videography in this case, which involved a chance recovery at 3 AM, did not amount to a procedural defect capable of nullifying the seizure.
Arguments of the Petitioner:
The petitioner, through counsel Mr. Karan Verma, Ms. Nayan Maggo, Mr. Yash Arora, and Mr. Yuvraj Singh, argued that the conviction rested solely on the testimonies of police officials and lacked the support of any independent or public witness, despite the alleged recovery having taken place in a public area. The defense contended that this omission raised serious doubts regarding the genuineness of the prosecution’s case. It was further argued that no photographs, videography, or CCTV footage were presented by the investigating agency, although cameras were installed in the vicinity. This omission, according to the petitioner, was a significant lapse in the investigation that undermined the credibility of the recovery proceedings. The defense counsel emphasized that with the advent of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), videography during search and seizure operations had been made mandatory under Section 105. They also referred to the earlier Delhi High Court judgment in Bantu v. State of NCT of Delhi (2024), where the Court held that recording search and seizure through audio-video electronic means was a mandatory requirement. Thus, the defense asserted that the investigating team’s failure to adhere to this procedural safeguard violated the spirit of transparency envisioned in the BNSS and cast a shadow on the fairness of the entire process. Moreover, the petitioner contended that the prosecution’s failure to associate independent witnesses, despite the seizure occurring in a public area, demonstrated a lack of bona fides. The defense maintained that when independent corroboration is available but deliberately withheld, it invites an adverse inference against the prosecution. Finally, it was urged that the petitioner’s continued incarceration during the pendency of the appeal was unjustified, as the evidentiary weaknesses rendered the conviction unsustainable. Hence, suspension of sentence was sought.
Arguments of the State:
On behalf of the State, Additional Public Prosecutor Mr. Yudhvir Singh Chauhan, assisted by SI Anil from PS Seemapuri, defended the conviction and opposed the plea for suspension of sentence. The prosecution contended that the recovery of 25.086 kg of ganja was clearly established through consistent testimonies of the police officers involved in the seizure, the seizure memos, the Forensic Science Laboratory (FSL) report confirming the substance as ganja, and the proper chain of custody maintained throughout the proceedings. The State argued that the credibility of official witnesses cannot be doubted merely on the ground that no independent witnesses were examined, particularly when there was no evidence or suggestion that the officers had any motive to falsely implicate the accused. The prosecution further explained that the recovery in question was a “chance recovery” that occurred at approximately 3 AM, when it was neither feasible nor practical to arrange for videography or independent witnesses. It was submitted that the non-availability of CCTV footage did not indicate fabrication, especially considering that the search was not a pre-planned operation but a spontaneous action based on the circumstances at that time. The prosecution emphasized that the NDPS Act, 1985, does not contain any statutory requirement mandating videography of seizures, and hence, the absence of such recording does not constitute a legal infirmity. While acknowledging that Section 105 of the BNSS introduces a new requirement for recording seizures through electronic means, the State argued that this provision was not applicable retrospectively and could not be used to invalidate a recovery conducted prior to its enforcement or in circumstances where it was not feasible. The State also cited judicial precedents affirming that the testimony of police officers, if found credible and trustworthy, is sufficient to sustain a conviction under the NDPS Act.
Court’s Judgment and Reasoning:
After examining the submissions and evidence on record, Justice Ravinder Dudeja upheld the principle that while technological tools such as videography enhance the fairness and reliability of search and seizure operations, the absence of such evidence does not, by itself, render the recovery invalid. The Court clarified that the Narcotic Drugs and Psychotropic Substances Act, 1985, does not mandate video recording of seizure procedures. Although the Bharatiya Nagarik Suraksha Sanhita, 2023, through Section 105, now makes video recording of searches mandatory, this provision is prospective in nature and cannot retrospectively apply to seizures conducted prior to its coming into effect. Justice Dudeja noted that even the earlier Delhi High Court ruling in Bantu v. State of NCT of Delhi (2024) had emphasized the mandatory nature of Section 105 BNSS, but the present case involved an entirely different factual context—namely, a chance recovery at an unearthly hour. The Court observed that “non-collection of CCTV footage or lack of videography may constitute a deficiency; however, such omission cannot by itself vitiate seizure proceedings.” The judge further reasoned that certain factual circumstances, such as chance recoveries occurring at odd hours or in remote areas, make videography impracticable. Therefore, to insist on videography in all circumstances, without considering practicality, would be unreasonable.
Justice Dudeja underscored that the law does not treat official witnesses as inherently unreliable merely because they belong to the police force. The Court reiterated that “police officers are not to be disbelieved merely because they are official witnesses, unless motive to falsely implicate is demonstrated.” In this case, the testimonies of the police officers were found consistent and were corroborated by documentary evidence including the seizure memos, the FSL report confirming the nature of the substance, and the chain of custody records. The defense could not establish any material contradiction or mala fide motive to discredit these witnesses. Accordingly, the Court held that the recovery of contraband was sufficiently proved.
Regarding the petitioner’s reliance on Section 105 of the BNSS, the Court noted that while the legislative intent behind mandating video-recorded seizures is to ensure greater transparency and accountability in the criminal justice process, the provision cannot be retroactively imposed on investigations conducted before its commencement. Furthermore, Justice Dudeja reasoned that even if the provision were applicable, its breach would not automatically nullify a seizure if other reliable evidence exists. The Court acknowledged that in future cases, compliance with Section 105 BNSS would be imperative, and failure to record seizures may be viewed more seriously, particularly when feasible. However, in the present instance, the Court found the omission justifiable given the time and nature of the recovery.
The Court also addressed the argument concerning the absence of independent witnesses. It observed that while associating independent witnesses is a desirable practice to add transparency, the law does not mandate it as an indispensable requirement. The credibility of official witnesses, if found trustworthy, is sufficient to sustain a conviction. The Court referred to established precedents where it was held that the evidence of police officers cannot be discarded solely due to the absence of independent corroboration. Hence, the non-joining of public witnesses in this case did not vitiate the prosecution’s case.
Justice Dudeja concluded that the conviction was based on sufficient and credible evidence, and the plea for suspension of sentence was devoid of merit. The Court dismissed the plea, reiterating that procedural lapses or technological deficiencies, unless shown to cause prejudice or to conceal falsehood, cannot outweigh the substantive evidence establishing guilt. The judgment reaffirmed the balance between advancing technological accountability and preserving the practicality of field investigations in criminal law.