Delhi District Court
Fir No 69/2015 , Ps Crime Branch State vs Ali Sher Saifi Page 1 Of 27 on 16 January, 2019
IN THE COURT OF RAMESH KUMAR-1 SPECIAL JUDGE: NDPS
(CENTRAL ) TIS HAZARI COURTS, DELHI
SC No. 52/2015
FIR No. 69/2015
PS: Crime Branch
U/s: 21 NDPS Act.
State
Vs
1. Ali Sher Saifi
S/o Sh Soki Saifi
R/O D-57, Gali No.2,
Jetpur Extension Part-II, Delhi
Date of filing of Charge-sheet : 24.08.2015
Date of arguments : 16.01.2019
Date of judgment : 16.01.2019.
JUDGMENT
1. Formal indictment, against accused, Ali Sher Saifi, is that on 07.05.2015, at about 7.25, a.m., under Ranjit Flyover, DDU Marg towards Minto Road, Delhi within the jurisdiction of PS Crime Branch, accused was found in possession of 300 gms of Heroin, which is a commercial quantity and made himself liable for an offence U/s 21(C) of Narcotic Drugs and Psychotropic Substances Act, 1985 and within the cognizance of Court .
FIR No 69/2015 , PS Crime Branch State Vs Ali Sher Saifi Page 1 of 272. Accordingly, Charge was framed against the accused, to which he pleaded not guilty and claimed trial. Thereafter, case was fixed for prosecution evidence.
3. The prosecution, in order to prove its case, has examined 13 witnesses i.e. PW1 HC Jag Narain, PW-2 ASI Sudhir Kumar, PW-3 W/ASI Geeta, PW-4 C Sonu Tomar, PW-5 Ct Rajiv, PW-6 ASI Ravinder Kumar Tyagi, PW-8 ASI Amar Lal, PW9 Dr. Subhra Kumar Paul, PW-10 ASI Mahesh Kumar, PW-11 Inspector Vivek Pathak, PW-12 SI Karamveer and PW-13 SI Rajveer Singh. After the examination of these witnesses, prosecution evidence was closed and statement of accused was recorded, wherein, accused denied all the evidence put to him, and did not opt for defence evidence.
4. I have heard Ld Addl PP for State and Ld counsel for the accused and have carefully perused the record file and have gone through the material placed on record.
5. In the present matter, PW2 ASI Sudhir Kumar, PW10 HC Mahesh and PW12 SI Karamveer were the members of the raiding team. They have deposed on the same lines regarding the manner in which the investigation was got conducted to the effect that on 07.05.2015, SI Karamveer was present in his office. There he received a secret information through an informer to the effect that one person namely Ali Sher, resident of Jaithpur, would come under the Ranjeet Singh Flyover, DDU marg, to supply heroin in a huge quantity to FIR No 69/2015 , PS Crime Branch State Vs Ali Sher Saifi Page 2 of 27 some one in between 7.15 am-8.00 am. Informer also informed that Ali Sher used to supply the heroin in a huge quantity at Delhi Gate and nearby area. He made some inquiry from the secret informer to ascertain about the secret information. On his satisfaction, he transmitted the above said information to his senior officer Inspector Vivek Pathak. The secret informer was also introduced to Inspector Vivek Pathak. Inspector Vivek Pathak also made some inquiry from secret informer. ACP Ravinder Kr Tyagi, was also intimated about secret information by Inspector Vivek Pathak through telephone. Thereafter, Vivek Pathak, instructed SI Karamveer to constitute a raiding team. He reduced the secret information into writing, in roznamcha against DD no.4, at about 6.30 am, vide the original record of the same, which is Ex.PW5/B. The copy of the above mentioned DD was given to Inspector Vivek Pathak, in compliance of the provisions of Section 42 of NDPS Act. A raiding team was constituted, consisting of PW12 SI Karamveer, PW10 HC Mahesh, PW2 HC Sudhir and the secret informer. The raiding team members were briefed about the secret information. SI Karamveer, alongwith HC Sudhir, HC Mahesh Kumar, HC Kanwal Singh and the secret informer left the office for the spot, in government gypsy, bearing registration no.DL 1CM 4228 being driven by HC Kanwal Singh. In regard of leaving the office, the departure entry was made in roznamcha against DD no.5, vide Ex.PW12/B, bearing his signature at point A and bearing the signature of ACP Ravinder Kr Tyagi, at point D. PW 12 Karamveer had taken the IO kit bag, field testing kit, electronic weighing machine alongwith him. From the Narcotic Cell, Kotwali, they had taken a left turn reaching the Red Fort parking from FIR No 69/2015 , PS Crime Branch State Vs Ali Sher Saifi Page 3 of 27 where they took U-turn and reached at the red light of Shanti Van. From there, they took a turn towards Ring Road and from the loop of ITO flyover, they went to the ITO crossing, taking a turn towards right. They reached at the road, situated under Ranjit Singh Flyover, DDU Marg.
6. It has further been deposed by the official witnesses that, on the way to the DDU Marg, they had stopped at Shanti Van bus stop and ITO bus stop, where IO asked 4-5 persons, standing at the bus stop, at Shanti Van bus stop and 5-6 persons at ITO bus stop, standing at the bus stop, to join the raiding party disclosing facts of the secret information but they all refused on pretext of their personal difficulties and left from there without giving their names and addresses. After reaching at DDU Marg, PW12 Karamveer, again, asked 4-5 passerby to join the proceedings, disclosing the details of the secret information, but, they also refused stating their personal difficulties and left without giving their names and addresses. PW12 SI Karamveer directed the driver HC Kamal Singh to park the vehicle at DDU Marg towards ITO and directed him to keep watch on his signal for the purpose of taking the vehicle towards him, on receipt of such signal. He also briefed the raiding team and deputed them, within the circle of 10-15 meters under the flyover.
7. They have further deposed that, at about 7.20 a.m., one person, wearing white kurta pajama, was seen by them coming on foot from the side of Minto Road. The said person, was carrying one green colour polythene bag, in FIR No 69/2015 , PS Crime Branch State Vs Ali Sher Saifi Page 4 of 27 his left hand. When the said person was at a distance of about 30-35 meters, the secret informer affirmed that the said person is Ali Sher, supplier of narcotics. Thereafter, the secret informer left from there. The said person started waiting for someone, after standing at a distance of about 10-15 meters from them. After waiting for 4-5 minutes, he started going back. PW12, SI Karamveer, gave the signal to raiding team members for apprehending the above mentioned person i.e. accused, at about 7.25 a.m. The above mentioned govt. gypsy was also called at the spot, where the accused was apprehended. PW12 introduced himself and the raiding team members to the accused and told him about the secret information. On inquiry, accused disclosed his name as Ali Sher. The accused was told by PW12, SI Karamveer, that due to receipt of the secret information about narcotics, in his possession, his search had to be taken. He also informed the accused about his legal right, that he can get himself searched in presence of Gazetted Officer or Magistrate and the said officials could be arranged at the spot if he so desired. PW12, SI Karamveer, told the accused prior to his search that he was free to take the search of the police party as well as the police vehicle but accused refused to take any search of police party or police vehicle as well as for his search in presence of Gazetted Officer or a Magistrate.
8. It is further deposed by the official witnesses that one notice U/s 50 NDPS Act, was prepared by PW12 SI Karamveer. Accused told that he was an illiterate but he could put his signatures in Hindi. SI Karamveer served the notice FIR No 69/2015 , PS Crime Branch State Vs Ali Sher Saifi Page 5 of 27 U/s 50 of NDPS Act, upon the accused and his reply was written on the carbon copy of notice, by SI Karamveer, on dictation of the accused. The accused signed the said reply and the said carbon copy of notice is Ex.PW2/A, bearing signature of SI Karamveer at point C. Accused received the notice vide his signature at point X. The reply of accused, Ex.PW2/B, bears signature of PW12, SI Karamveer, at point C and signatures of accused at point X1. During the personal search of accused, the original notice U/s 50 NDPS Act, which was served upon him, was recovered from the pocket of his wearing kurta. At the time of conducting the investigation at the spot, some public persons gathered over there. Out of those persons, 5-6 persons, were requested to join the investigation, but, none agreed and they left the spot, without disclosing their names and addresses. Therefore, no notice could be served upon them.
9. It has further been deposed that the polythene bag, which was in the left hand of the accused, was taken from him and same was checked. The said green colour polythene bag, was, found containing another transparent polythene bag closed with the help of rubber band containing brown colour powder. On checking the brown colour powder, by field testing kit, it was found to be 'Heroin'. On weighing the transparent polythene bag with its contents, it was found of the weight of 300 gms. PW12 SI Karamveer, separated two samples of 5 gms each from the recovered heroin. The samples were taken in small transparent polythene bags, and, were closed with the rubber bands. These samples were converted into separate cloth pullandas which were given Mark A & B. The FIR No 69/2015 , PS Crime Branch State Vs Ali Sher Saifi Page 6 of 27 remaining heroin was kept inside the same transparent bag, from which it had been recovered, and, this bag was kept into the same green bag. This bag was also converted into cloth pullanda and was given Mark C. PW12, SI Karamveer, filled the FSL form and sealed the pullandas Mark A, B & C with the seal of 4B PS NB DELHI. The said seal was put on the FSL form also. The said case property was seized, vide seizure memo, already Ex.PW2/C bearing his signature at point C and signature of accused at point X. Seal, after its use was given to HC Mahesh. PW12 prepared tehrir, Ex.PW12/C, bearing his signature at point A. He gave it to HC Sudhir, at about 10.30 a.m. He also gave him the copy of seizure memo, FSL form and the three pullandas i.e. of Mark Sr.no.A, B & C. He directed PW2, HC Sudhir, to give the tehrir to Duty Officer and the remaining articles to SHO of Crime Branch at the PS Crime Branch. PW2, HC Sudhir, went to PS Crime Branch in the government vehicle being driven by HC Kanwal Singh at about 10.30 am.
10. It has further been deposed by the official witnesses that, at about 2.30 pm, ASI Rajbir, alongwith HC Kamal, reached at the spot in a govt vehicle and met him. PW12, SI Karamveer, handed over the relevant documents, which were prepared by him and accused, to ASI Rajbir. ASI Rajbir prepared site plan, at the instance of PW12 SI Karamveer vide Ex.PW12/D, which bears his signature at point A. ASI Rajbir recorded the statement of HC Mahesh. ASI Rajbir, interrogated accused Ali Sher Saifi and arrested him vide memo Ex.PW10/A and his personal search was conducted vide memo Ex.PW10/B. FIR No 69/2015 , PS Crime Branch State Vs Ali Sher Saifi Page 7 of 27 Disclosure statement of accused was also recorded vide memo Ex.PW10/C. Thereafter, they, alongwith accused, went to PS Crime Branch, Malviya Nagar. The articles, recovered in personal search memo of accused, were deposited by the IO in the malkhana. ASI Rajbir recorded statement of the then SHO Inspector Manoj Kumar and the then MHC(M) u/s 161 Cr.PC. Thereafter, they, alongwith accused, reached at office of Narcotics Cell at Kotawali. ASI Rajbir handed over the custody of accused to Inspector Vivek Pathak and thereafter he recorded statement of PW12 SI Karamveer U/s 161 Cr.PC. On 08.05.2015, PW12, SI Karamveer, prepared the report Ex.PW5/D in pursuance to the provisions of section 57 of NDPS Act and same was produced before Inspector Vivek Pathak.
11 PW-13, SI Rajveer Singh is the second IO, in the present case. He has deposed that, on 07.05.2015, he was posted as ASI at Narcotics Cell,Crime Branch, Old Building Kotwali, Daryaganj Delhi. On that day, at about 2.00 pm, PW2 HC Sudhir, had handed over computer copy of FIR and original Rukka to him, at office, and he lodged DD no. 15, in this regard, Ex.PW13/A bearing his signature at point A. He left in Government Vehicle, bearing registration no. DL1CM-4228, driven by HC Kamal Singh and reached at the spot, at about 2.30 pm. There SI Karamveer, HC Mahesh Kumar alongwith accused Ali sher Saifi, were found present. SI Karamveer apprised PW13, SI Rajveer Singh, about the facts of the case and handed over to him the relevant documents of the present case. At about 2.45 pm, he prepared the site plan Ex.PW12/B, at the instance of FIR No 69/2015 , PS Crime Branch State Vs Ali Sher Saifi Page 8 of 27 SI Karamveer bearing his signature at point B. Thereafter, he recorded the statement of HC Mahesh Kumar, U/s 161, Cr.PC upto 4.00 pm. Thereafter, he interrogated accused, Ali Sher Saifi, and arrested him, at about 4.15 pm, vide arrest memo already Ex.PW10/A, which bears his signature at point C. PW13, SI Rajveer Singh also conducted his personal search vide memo already Ex.PW10/B, bearing his signature at point C. In the personal search of accused, original notice U/s 50 NDPS Act was recovered and Rs.240/- were also recovered. Thereafter, PW13, SI Rajveer Singh, recorded the disclosure statement of accused, Ex.PW10/C bearing his signature at point C. At about 4.50 pm, he left the spot alongwith HC Karamveer Singh, HC Mahesh alongwith accused, in government vehicle reached at PS Crime Branch, at Malviya Nagar, at about 6.00 pm. Personal search articles of accused were deposited in the malkhana, PS Crime Branch. Thereafter, PW13, SI Rajveer Singh, recorded the statement of SHO Inspector Manoj Kr Tyagi ,and MHC(M) HC Jag Narain U/s 161 Cr.PC. At about 6.50 pm, they, alongwith accused, in above said government vehicle, departed for Narcotics Cell, Crime Branch, Old Kotwali Building, Daryaganj Delhi and reached there, at about 7.45 pm, and accused was produced before Inspector Vivek Patak, Narcotic cell, who had inquired from accused. He filled up the log book, of above said government vehicle, which is mark PW13/A and bears his signature at point A. DD No. 23 was lodged, at about 8.00 pm, regarding their arrival, vide Ex.PW13/B bearing his signature at point A. PW13, SI Rajveer, recorded the statement of witnesses U/s 161 Cr.PC. He also recorded the supplementary statement of HC Mahesh. Information of FIR No 69/2015 , PS Crime Branch State Vs Ali Sher Saifi Page 9 of 27 arrest of accused was given to son of accused, on his mobile phone, which was provided by the accused. On next day, at about 8.00 am, PW13, SI Rajveer Singh, prepared report, U/s 57 NDPS Act regarding arrest of accused and produced before Inspector Vivek Pathak. PW13 directed Ct Sonu Tomar, to collect the sample from MHC(M) PS Crime Branch and deposit the same at FSL Rohini. As per directions of PW 13, SI Rajveer Singh, Ct Sonu Tomar, collected the same and deposited at FSL Rohini. PW13 inquired from accused, regarding the source, namely Zalish and supply of destination, namely, Pappu, regarding recovered contrabands, but he could not disclose, their addresses and other particulars. Accused was produced before concerned Court and after medical examination, he was sent to JC. He also recorded the supplementary statement of HC Jag Narain and statement of Ct Sonu Tomar U/s 161 Cr.PC. After taking approval from Trial Court, proceedings U/s 52A (2) NDPS Act was done. Photographs were also clicked at the time of proceedings, U/s 52 A (2) NDPS Act. FSL report, Ex.PW9/A, was collected by HC Satbir Singh and same was handed over to MHC(M). PW13 collected the same. After completion of investigation, PW13, SI Rajveer Singh, prepared the charge-sheet and filed the same before the Court.
12 Rest of the witnesses are formal witnesses, in this case, i.e PW1 HC Jag Narain, who was working as MHC(M) and who made entry no. 2267 in register no.19 regarding deposit of three parcels, duly sealed with the seal of 4B PS NB DELHI & MKT, alongwith FSL form, and he proved the copy of same FIR No 69/2015 , PS Crime Branch State Vs Ali Sher Saifi Page 10 of 27 as ExPW1/A. He also made entry no. 2268, regarding deposit of personal search articles, of accused in register no.19 and proved the copy of same as Ex.PW1/B. He further sent the sealed parcel mark A to FSL, on 08.05.2015, vide RC No. 123/21/15, alongwith, FSL form through Ct Tomar, and, he recorded the note in this regard from point C to C on Ex. PW1/A and, after deposing the same, Ct Sonu Tomar, produced the acknowledgment of FSL, to PW1, who proved the same as Ex.PW1/C. He also proved the copy of road certificate as Ex.PW1/D. Further, PW1, also recorded note, from point D to D on Ex.PW1/A regarding the collection of one parcel, from FSL alongwith FSL report by HC Satbir, on 23.07.2015. He also recorded note from point E to E, at point A3 on Ex.PW1/A, regarding the production of case property, by Ct Pawan before Sh Bharat Chugh, Ld MM, Tis Hazari Courts, in connection to the proceedings, U/s 52A NDPS Act and pullandas, bearing mark of R1, R2, X and Y, sealed with the seal of Court, were received by PW1, HC Jag Narain.
13 PW2 ASI Sudhir Kumar, was also the member of the raiding team and he deposed on the same lines as of PW12, SI Karamveer regarding the receipt of secret information about the accused. He further deposed that, after preparation of tehrir, SI Karamveer handed over to him, original tehrir, copy of seizure memo, three pullandas i.e. Mark Sr No. A, B and C, alongwith, FSL Form. PW2 took the same to PS Crime Branch, in the government vehicle, being driven by HC Kanwal Singh and reached there at about 11.30 am and handed over the therir, to DO W/ASI Geeta Rani, for recording the FIR and FIR No 69/2015 , PS Crime Branch State Vs Ali Sher Saifi Page 11 of 27 handed over the pullandas with FSL form and copy of seizure to SHO Inspector Manoj Kumar Tyagi. Inspector, Manok Kr Tyagi, put his counter seal of MKT on the pullanda as well as the FSL form and he enquired the number of FIR from the DO and wrote the same on all the pullandas, FSL form and the copy of seizure memo. He further deposed that, at about 11.55 am, the MHC(M) HC Jag Narain, was called by SHO and the case property was handed over to him for depositing in the malkhana, and entry in register no. 19 by HC Jag Narain, in this regard and SHO signed the same and SHO also made a DD entry at about 12.15 pm, regarding deposit of case property by him. PW2 further deposed that at about 1.00 pm, DO handed over to him, the original tehrir with copy of FIR, and he reached at the office of Narcotic Cell, Kotwali, at about 2.00 pm and gave the said documents to ASI Rajbir for investigation. ASI Rajbir left him in the office and went to the spot in the same government gypsy. His statement was recorded, by ASI Rajbir, in the office of Narcotic Cell, at about 10.00-11.30 pm. 14 PW-3, W/ASI Geeta, has proved copy of FIR as Ex.PW3/A, her endorsement on rukka, as Ex.PW3/B, certificate U/s 65B of Evidence Act, as Ex.PW3/C, copy of DD no.11 as Ex.PW3/D, copy of DD no.13 as Ex.PW3/E and copy of DD no.12, dated 07.05.2012, as Ex.PW3/F. She further deposed that after registration of the FIR, rukka alongwith copy of FIR, was handed over to HC, Sudhir, for handing over the same to IO ASI Rajbir Singh.
15 PW-4, Ct Sonu Tomar, had deposed that, on 08.05.2015, at about FIR No 69/2015 , PS Crime Branch State Vs Ali Sher Saifi Page 12 of 27 8.05 am, he had proceeded from the office of Narcotic Cell, Crime Branch, vide DD no.5 to PS Crime Branch, situated at Malviya Nagar, and, on the order of SHO, PS Crime Branch, he took the sample pullanda bearing Mark A, from the MHC(M), sealed with the seal of 4B PS NB DELHI and the seal of MKT and MHC(M) also handed over to him form FSL, having the seal impressions of both the said seals, as well as other documents. He further deposed that he took the pullanda, with all the documents vide RC no. 123/21 and he after depositing the pullandas, with the FSL vide FSL No. 2015/CHE-3022, took the acknowledgment and one copy of RC to Malkhana and gave the same to MHC(M). He further deposed that he returned to the office of Narcotic Cell at 3.30 pm, and IO recorded his statement, from 6.15 pm to 6.30 pm,in the office and time during which the sample remained in his possession, all the seals remained intact and no tampering was effected by anyone.
16 PW5 Ct Rajiv proved the copy of DD no.4, which was received in the office of ACP, Narcotic and Crime Prevention, and it was shown to the ACP Sh Ravinder Kumar Tyagi, when he came to office, and it was entered into Diary Register, at S. No. 1280, as Ex.PW5/A and he proved the original DD as Ex.PW5/B. He also proved the entries in Diary register at S. No. 1303 and 1304, regarding the Special report U/s 57 NDPS Act, regarding seizure of 300 gm heroin, as well as Special report as Ex.PW5/C (collectively) and he also proved the original report U/s 57 NDPS Act, regarding seizure of heroin, as Ex.PW5/D and original report U/s 57 NDPS Act, regarding arrest of accused, as FIR No 69/2015 , PS Crime Branch State Vs Ali Sher Saifi Page 13 of 27 Ex.PW5/E. 17 PW6, ACP Ravinder Tyagi, deposed about his role, in the same manner, as deposed by other witnesses regarding receiving of information through Inspector Vivek Pathak to the effect that accused was involved in illegal trafficking of narcotics drug and he would deliver the Narcotic drug to some one under the Ranjeet Flyover, DDU Marg and further that he directed to prepare a raiding party. He also deposed about receipt of DD no.4, vide Diary no. 1280 and he produced the original Receipt and Dispatch register, pertaining to diary no. 1280, dated 07.05.2015, and proved the copy of same as Ex.PW6/A. He also proved the diary no. 1303 and 1304, vide copies of same as Ex.PW6/B and Ex.PW6/C. 18 PW7, Inspector Manoj Kumar, also deposed on the same lines, as deposed by PW2, ASI Sudhir Kumar, to the effect that HC, Sudhir Kumar, came to his office and produced three sealed parcels, sealed with the seal of 4B PS NB DELHI , form FSL and carbon copy of seizure memo and that said parcels were marked as A, B and C and he put his seal MKT on the said parcels makred A, B & C and FSL Form. Thereafter, he enquired about the FIR number, from the Duty officer and put the FIR number on all the sealed parcels, Form FSL and carbon copy of Seizure memo. He also countersigned, on the sealed parcels, FSL form and carbon copy of seizure memo and, thereafter, he called HC Jag Narain with register no.19 and handed over the said parcels to him, FIR No 69/2015 , PS Crime Branch State Vs Ali Sher Saifi Page 14 of 27 alongwith FSL form and carbon copy of the seizure memo and HC Jag Narain made entry in this regard in register no.19 and he put his initials, on the said entry. PW7 also lodged DD no.12, in this regard, which is Ex.PW3/F. 19 PW8, ASI Amar Lal, deposed that, on 20.07.2015, he had taken eight photographs of the case property, and, on 03.08.15, he had deposited two sets of eight developed photographs and two CDs pertaining to the said photographs, in the court of Ld MM and, at that time, Ld MM handed over one set of eight developed photographs and one CD of those photograph to the concerned IO. PW8, ASI Amar, proved the photographs as Ex.PW8/A-1 to A-8 and CD and Ex.PW8/B. 20 PW9, Dr. Subhra Kumar Paul, conducted the chemical examination on the pullandas, which were deposited by Ct Sonu and were containing the light brownish colour material with granuels stated to be 'heroin'. She further deposed that, on Chemical, TLC and GC-MS examination, Exhibit 'A' was found to contain 'Diacetylmorphine', '6-monoacetulmorphine', Papaverine, Paracetamol, Caffeine and ' Alprazolam'. The percentage of 'Diacetylmorphine was found to be 4.5% in exhibit A. She proved her report as Ex.PW9/A and her signatures at point A and B. After the examination, the remnants of the exhibit were sealed with the seal of SKP, FSL Delhi, as per specimen mentioned at Circle-X, in the report.
21 PW11, Inspector Vivek Pathak also, deposed on the same lines, as FIR No 69/2015 , PS Crime Branch State Vs Ali Sher Saifi Page 15 of 27 deposed by other witnesses, regarding receipt of information, by SI Karamveer Singh, to the effect that one Ali Sher is involved in sale and supply of heroin, in small and bulk quantity, in the area of Delhi Gate and that he would come under Ranjeet Singh Flyover, DDU Marg, to deliver a consignment of heroin to some one. He made inquries from the informer and further gave the said information to ACP, Sh R.K. Tyagi, telephonically, who directed to take the appropriate legal action and conduct a raid. He further deposed that he forwarded, DD entry no.4 to ACP, N & CP, copy of which is Ex.PW5/B, bearing his signature at point Y. He further deposed that, at about 7.45 pm, ASI Rajbir Singh produced accused Ali Sher, before him and ASI Rajbir Singh recorded his statement U/s 161 Cr.PC. He further deposed that, on 08.05.2015, SI Karambir Singh produced the Special report U/s 57 NDPS Act, regarding the seizure of 300 gm of heroin and another special report U/s 57 NDPS Act, regarding arrest of accused, which he forwarded to ACP N & CP and copies of both these reports are Ex.PW5/D and Ex.PW5/E and bears his signature at point Y. 22 During the course of arguments, Ld Addl PP for State has contended that, all the prosecution witnesses have deposed in the same tone and tenor about the manner in which the investigation was conducted and the recovery was effected in the present matter from the bag, which accused was carrying with him. It has further been contended that all the prosecution witnesses have deposed regarding the recovery from the possession of accused and he should be convicted for the offence U/s 21(c) NDPS Act. In crux it has been argued that FIR No 69/2015 , PS Crime Branch State Vs Ali Sher Saifi Page 16 of 27 all the witnesses are reliable and no contradictions are emerging out in the version of the prosecution witnesses to disbelieve their testimonies. Accordinlgy, prosecution has been able to prove its case beyond reasonable doubt and the accused be convicted for the offence U/s 21(c) NDPS Act.
23 On the other hand, Ld counsel for accused has contended that, it is clear from the entire evidence which has come on record that, the investigation was done in a very routine and mechanical manner. It is further contended that prosecution story is full of contradictions and the necessary provisions of law has not been adhered to by the IO, while conducting the investigation. It is further contended that PW2, ASI Sudhir Kumar, deposed in his cross-examination, that he was not told by SI Karamveer Singh, as to from where accused will come to the spot and by which mode of transportation and this statement of PW2, ASI Sudhir Kumar, is contradictory to the version of PW12, ASI Karamveer Singh,wherein he deposed that he had shared the secret information with the members of the raiding team. It is further contended that presence of PW2, ASI Sudhir Kumar, is doubtful as he was not aware about the surroundings of the place of apprehension as it has come in his cross-examination that he was not aware whether there was an office of Atomic Energy and also the chambers of Supreme Court Lawyers near the place of apprehension of accused, and it creates doubt in the prosecution story, whether any such proceedings were ever conducted at the given place or not.
FIR No 69/2015 , PS Crime Branch State Vs Ali Sher Saifi Page 17 of 2724. It is further contended that no public witness was joined, in the proceedings, either at the time, when the police team was waiting for the accused or at the time, when the accused was apprehended/arrested at the spot. It creates a grave doubt regarding the manner in which the proceedings conducted by the police team, as the absence of any independent witness, in the investigation shows that no such proceedings were conducted at the spot, in the manner, as deposed by the police witnesses. It is further contended that, even no videography or photography of the place of arrest of accused and proceedings, which were conducted at the spot, was done. It is further contended that, as per the prosecution story, HC Kanwal Singh was the driver of the government gypsy, who drove upto the spot and was present at the time of investigation but despite the same neither he was joined in the investigation nor he has been cited as recovery witness, in the present case, which shows that no such proceedings were ever done at the spot. It is further contended that CCTV camera installed at the spot have not been seized by the investigation officer, in the present case, nor, any search has been carried out regarding the same and the same has been admitted by PW12, SI Karamveer, in his cross-examination. It is further contended that the IO did not obtain the CDR of mobile phone of the accused, in order to prove his presence, at the place of arrest, which again creates doubt regarding the involvement of accused in the present case. Prosecution has failed to find out the source and supply of the case property nor the Investigating officer, visited to Badayun for inquiry, in the present case regarding the source of supply or proposed buyer. It is further contended that FIR No 69/2015 , PS Crime Branch State Vs Ali Sher Saifi Page 18 of 27 no action was taken against the public persons, who refused to join the proceedings. It is further contended that IO did not make any call to ACP, whose rank is equivalent to that of a Gazetted officer or to any other Gazetted officer at the time of recovery, despite the fact that PW6 ACP Ravinder Kumar Tyagi, was having the alleged information regarding the apprehension of accused as deposed by him, but he was not called at the spot being the Gazetted officer, which creates grave doubt in the case of the prosecution. It is further contended that accused was not produced before any Magistrate or Gazetted officer and hence, recovery of the heroin was not made from the accused in the presence of any Magistrate or Gazetted officer, and the police officials, who recovered the heroin were not Gazetted officer and, hence, they were not empowered to make search and recovery from the accused, as per section 50 of NDPS Act, thereby, making the alleged recovery and search in violation of section 50 of NDPS Act.
25 Ld Defence counsel further relied upon the judgment titled as Munni Lal Versus the State, 1995 JCC 110, wherein Hon'ble High Court of Delhi acquitted the accused on the basis of serious infirmities in the prosecution version. Ld defence counsel further relied upon the judgment titled as Pradeep Kumar Versus State, 1997 JCC 476, wherein it has been held by the Hon'ble High Court of Delhi that " the prosecution version can not be accepted as gospel truth and the doubts would legitimately be raised as investigation officer, made no efforts to join any witness from the public. It is not a case of sudden apprehension and recovery, it is a case where secret information has FIR No 69/2015 , PS Crime Branch State Vs Ali Sher Saifi Page 19 of 27 been received and it is in evidence that persons from public were available to the investigation officer and yet, he made no efforts to join any witness from the public."
26 He further relied on the judgment titled as, Om Praksh Versus State III (2014) CCR 1 (Del), wherein the Hon'ble High Court of Delhi acquitted the accused in absence of clear evidence to show that sincere efforts were made out to join the public persons as independent witnesses to the investigation. It is contended by Ld defence counsel that same factual position lies, in the present case and the failure of the investigation officer to join the independent witnesses from public assumes great significance and entitles the accused to be acquitted, in the present case.
27 Section 21 (c) of Narcotic Drugs and Psychotropic Substances Act, 1985 interalia, provides as under:-
21. Punishment for contravention in relation to manufactured drugs and preparation.-Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder, manufactures, possesses, sells, purchases, transports, imports inter-state, exports, inter-state or uses any manufactured drug or any preparation containing any manufactured drug shall be punishable.-
(c) Where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to FIR No 69/2015 , PS Crime Branch State Vs Ali Sher Saifi Page 20 of 27 twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakhs rupees.
Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.
28 Section 50 of NDPS Act imposes the conditions in the manner, in which the search of accused has to be conducted. It is reproduced herein below for ready reference:-
50. Conditions under which search of person shall be conducted.- (1) When any officer duly authorized under section 42 is about to search any person under the provision of section 41, section 42 or section 43, he shall , if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate.
(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-
section (1) (3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search forthwith discharge the person but otherwise shall direct that search be made.
(4) No female shall be searched by anyone excepting a female.
(5) when an officer duly authorized under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be FIR No 69/2015 , PS Crime Branch State Vs Ali Sher Saifi Page 21 of 27 searched parting which possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted officer or Magistrate , proceed to search the person, as provided under section 100 of the code of Criminal procedure, 1973.
(6) After a search is conducted under sub-
section (5) the officer shall record the reasons for such belief which necessitated such search and within seventy two hours send a copy thereof to his immediate official superior.
29 In Arif Khan @ Agha Khan Vs State of Uttrakhand, 2018 (3)JCC(Narcotics) 140, it has been held by Supreme Court that, "it is an admitted fact emerging from the record of the case that the appellant was not produced before any Magistrate or Gazetted Officer, Second, it is also an admitted fact that due to aforementioned first reason, the search and recovery of of the contraband "Charas" was not made from the appellant in the presence of any Magistrate or Gazetted Officer; Third, it is also an admitted fact that none of the police officials of the raiding party, who recovered the contraband "charas" from him, was the Gazetted Officer and nor they could be and, therefore, they were not empowered to make search and recovery from the appellant of the contraband "Charas" as provided under Section 50 of NDPS Act except in the presence of either a Magistrate or a Gazetted Officer; Fourth, in order to made the search and recovery of the contraband articles from the body of the suspect, the search and recovery has to be in conformity with the requirements of Section 50 of the NDPS Act. It is therefor, mandatory for the prosecution to prove that the FIR No 69/2015 , PS Crime Branch State Vs Ali Sher Saifi Page 22 of 27 search and recovery was made from the appellant in the presence of a Magistrate or a Gazetted Officer.
30 From the bare reading of section 50 of NDPS Act, it is clear that the search of the person, has to be done in the presence of Gazetted officer or the Magistrate and if an officer has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched, parting which possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted officer or Magistrate , proceed to search the person, as provided under section 100 of the code of Criminal procedure, 1973. In the present matter, it has come in the evidence of PW12, SI Karamveer, that he had informed about the secret information to Inspector, Vivek Pathak, who further transmitted the same to ACP Ravinder Kr Tyagi. From this part of evidence, it is clear that ACP Ravinder Kr Tyagi was having the information about the accused, but it is not clear as to why he did not reach at the spot, being the rank of Gazetted officer, so that accused could be searched in his presence. It is categorically stated by PW6, ACP Ravinder Kr Tyagi, in his cross-examination that, he did not receive any information from SI, Karamveer Singh, or ASI, Rajbir Singh, to reach at the spot, after the alleged apprehension of accused. It is further stated by PW6 ACP, Ravinder Kr Tyagi, in his chief-examination that, on 07.05.2015, Inspector Vivek Pathak informed him, on telephone about the information and further in cross-
FIR No 69/2015 , PS Crime Branch State Vs Ali Sher Saifi Page 23 of 27examination he stated that he did not remember whether the information from Inspector Vivek Pathak, was received through his mobile phone or landline number. He further stated that he received information vide DD no.4 in his office on 07.05.2015 but he did not remember the time. However, reader to ACP, namely, HC Rajiv, was also examined as PW5, in the present case, who stated in his chief-examination that, on 07.05.2015, he received the copy of DD No.4 at about 9.15 am, from Inspector Vivek Pathak. From this part of evidence, it is emerging out that the ACP Ravinder Kumar Tyagi, came to know about the information vide DD No.4 at about 9.15 am, and accused was apprehended at about 7.25 am. No CDR of police officers are placed on record to show the fact that the call was made to ACP Ravinder Kr Tyagi at about 6.30 am for providing the alleged information. It has not come, in the evidence of any of the witnesses, that ACP Ravinder Kr Tyagi was called at the spot. In the light of the judgment titled as Arif Khan (Supra), it is amply clear that the conditions of search are mandatory and its non compliance makes the prosecution case fatal. In the present matter, I am fortified by the decision of Hon'ble Supreme Court in Arif Khan @ Agha Khan V. State of Uttarakhand, 2018 SC 459, wherein it has been held that the search and recovery has to be in conformity with the requirements of Section 50 of the NDPS Act. It is therefore, mandatory for the prosecution to prove that the search and recovery was made from the appellant in the presence of a Magistrate or a Gazetted officer. Accordingly, in the light of of the judgment of Arif Khan (Supra), in the present case, compliance of section 50 of NDPS Act is not made in accordance with law by the IO.
FIR No 69/2015 , PS Crime Branch State Vs Ali Sher Saifi Page 24 of 2731. Further, in the present case it has come on record file that, the accused was apprehended, at about 7.25 am, by the raiding team, on 07.05.2015, but his arrest is shown at about 4.15 pm. It is not explained by any of the witnesses as to why it had taken such a long time in arrest of the accused, because, as per evidence of PW2, ASI Sudhir kumar, he took the tehrir along with other documents, to the PS Crime Branch, at about 10.30 am, and it is stated by PW13, SI Rajbir, that he reached at the spot at about 2.30 pm and arrested the accused at about 4.15 pm. From this part of evidence, it is difficult to believe that the investigation was conducted in a fair manner. Further, if evidence is believed as it is, then, it is clear that raiding team remained at the spot from 7.20 am till 4.30 pm and it has also been stated by PW12, SI Karamveer, in his, cross-examination, that they remained at the spot for about 8-10 hours, but, during this long period no public person was joined in the investigation, despite being the availability of public persons. The investigation conducted, without joining any public person, despite being the opportunity to join independent witnesses, always creates doubt, about the truthfulness of the investigation. The non-joining of independent witnesses is fatal for the case of prosecution, as the formal witnesses i.e. police witnesses are interested witnesses and to believe the veracity of their testimonies, some cogent and clear evidence must come on the record file. Further, no efforts were made to find out the source from where, the accused was getting the contraband for supplying it further and no police remand of the accused was taken to find out the same. Further no CDR of mobile phone of accused was placed on record to FIR No 69/2015 , PS Crime Branch State Vs Ali Sher Saifi Page 25 of 27 show the truthfulness of the fact that he was in contact with the proposed buyer and came there for supplying the contraband. Hence, in the absence of any particulars regarding the source and supply of the contraband and the non availability of CDR of mobile phone of accused, prosecution case has not been proved against the accused beyond reasonable doubts.
32. In the present matter, it is also not clear as to why the driver of the government gypsy, namely HC Kanwal, was not made witness in the present case, despite being with the raiding team members, since beginning. Further, no photographs or videography of the spot was placed on record to show that the accused was actually apprehended by the police witnesses, in the given manner and it gives reason to court to believe the defence of accused, given in his statement, recorded U/s 313 Cr.PC, as reliable one, that he was called in the police station, and later on, implicated, in the present case.
33 Accordingly, in the present matter, the non compliance of section 50 of NDPS Act, non joining of public witnesses, absence of any photographs or videography of the place of occurrence, absence of any information regarding source and supply and absence of CDR of mobile phone of accused, altogether goes to the root of the prosecution case and weakens the case of the prosecution and the contentions of Ld defence counsel are plausible and tenable and there, is no reason to disbelieve the same.
FIR No 69/2015 , PS Crime Branch State Vs Ali Sher Saifi Page 26 of 2734 Accordingly, in view of the entire discussion and observations made herein above and in the light of judgment as relied upon, in my view, prosecution has not been able to prove its case beyond reasonable doubt and hence accused is acquitted for the offence punishable U/s 21(C) of Narcotic Drugs and Psychotropic Substances Act, 1985.
35 File be consigned to Record Room, after the compliance of required bail bond U/s 437A Cr.PC.
Announced in the open court (Ramesh Kumar-1)
on 16th of January 2019 Special Judge/ASJ: NDPS
Central District: Tis Hazari.
Delhi
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