Delhi District Court
The Facts As Alleged By The Prosecution vs . on 9 June, 2023
IN THE COURT OF SHRI ARUL VARMA, ASJ-04 AND
SPECIAL JUDGE (NDPS) SOUTH-EAST: SAKET COURTS: NEW
DELHI
CNR No. DLSE01-000464-2019
SC No 50/2019
FIR No. 216/2018
P.S. Crime Branch South-East
State
Vs.
Mohd Rubal
S/o Sh.Mohd Ayub Ali
R/o H. No. S-265/112 I.G Camp No.1 Taimoor Nagar,
New Delhi & Mannat Apartment S-3/6 Gali No ¾
Jogabai Extension New Delhi
........ Accused
Date of Institution : 26.02.2019
Date of reserving the Judgment : 26.05.2023
Date of Judgment : 09.06.2023
JUDGMENT
FACTS IN BRIEF / CASE SET UP BY THE PROSECUTION
1. The facts as alleged by the prosecution, are hereby succinctly recapitulated. It was alleged that on 27.08.2018, at about 03:35 PM at Building Mannat Apartments, S-3/6 Gali no. 3 and 4 Joga Bai Extension, New Delhi, the applicant/accused was apprehended with one polythene bag containing 780 grams of heroine. Thereafter, the accused was arrested, and investigation was conducted. Whereafter, the present chargesheet came to be filed.
CHARGES FRAMED QUA THE ACCUSED
2. Charges under section 21(c) of NDPS Act, were framed qua the accused FIR No.216/2018 State Vs.Mohd Rubal Page No. 1/43 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.06.09 14:20:43 -0300 to which he pleaded not guilty and claimed trial.
EVIDENCE LED BY PROSECUTION
3. In the trial, the prosecution in support of its case, examined Ten witnesses, the succinct testimonies whereof are as follows:
4. PW-1 Insp. Satender Sangwan deposed that on 27.8.2018 he was posted as SHO, PS, Crime Branch, Pushp Vihar, Saket, New Delhi and was present in the office when at around 7.35pm, Ct. Surender (ISC Crime Branch, Chanakyapuri) came to Inspector Satender Sangwan in his office and produced before him five white cloth pullandas mark A1 A2, B1 B2 and C, all sealed with seal of YS alongwith FSL form and copy of seizure memo. Thereafter, PW-1 Inspector Satender Sangwan also put his seal of SS on those five pullandas and form FSL. Thereafter he asked FIR number from the Duty Officer and put the FIR No. on the pullandas, seizure memo and FSL form and signed the same. He also endorsed the seizure memo and put his signature on all above exhibits and documents. Then he called the MHC/M ASI Jagnarayan alongwith register no. 19 and handed over the above pullandas alongwith FSL form to him which were entered in register No. 19 at Sl. No. 4177, copy of which was mark A bearing his signature at point A. He also lodged DD No. 23 dated 27.8.2018 regarding receipt and deposit of case property as above in his hand. IO recorded his statement u/s 161 CrPC in this regard.
5. PW-2 Ct. Surender Kumar deposed that on 27.8.2018 he was posted as FIR No.216/2018 State Vs.Mohd Rubal Page No. 2/43 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.06.09 14:20:57 -0300 constable in ISC crime branch, Chanakyapri. On that day at about 11AM, when he was present in the office, ASI Sanjay called him in his office alongwith Ct. Sudhir, Ct. Pawan, Ct. Sandeep, Ct. Rahul, Ct. Mohit, W/Ct. Roshni. Secret informer was present with ASI. ASI told them about the secret information that one person namely Mohd. Rubal who was involved in selling contraband in Delhi illegally would come between 1pm to 3pm at Joga Bai Extension, Delhi for supply of illegal contraband. Thereafter at about 11.30 am they all the above police officials and secret informer left the police station after recording DDNo. 19 to reach Joga Bai Extension by two private vehicles, Bolero and Scorpio of white colours. PW-2 was driving scorpio car and Ct. Mohit, W/Ct Roshini were with him in his car. It was further deposed that at about 12 noon they reached near Sarai Kale Khan Bus Depot where ASI Sanjay requested 4-5 public persons to join the raiding party but none agreed. At 12.20pm they reached at Yamuna Khadar, Batla House, Joga Bai Extension where they parked their vehicles. They remained there and secret informer was sent to Joga Bai Extension by ASI Sanjay to verify about the secret information. In the meantime ASI Sanjay again requested 4-5 public persons to join the raiding party but none agreed. After some time secret informer returned to them and told them that accused Mohd. Rubal was about to reach S-3/6, Mannat Apartment, Joga Bai Extension, Gali No. 3 /
4. Thereafter on the instruction of ASI, they all took their position in front FIR No.216/2018 State Vs.Mohd Rubal Page No. 3/43 Digitally signed by ARUL ARUL Date:
VARMA VARMA 2023.06.09 14:21:07 -0300
of Mannat Apartment at short distances. At about 3.35pm secret informer pointed out towards a boy having dark complexion who was entering Mannat Apartment who was having one yellow and black polythene bag in his right hand and told ASI that the said boy was Mohd. Rubal. Thereafter secret informer was relieved. He alongwith Ct. Sandeep and ASI apprehended the accused, who was correctly identified by PW-2 in Court. ASI Sanjay gave identity of police to accused. After inquiry identity of accused was revealed as Mohd. Rubal S/o IyubAli R/o S- 265/112, IG Camp, Taimur Nagar, Delhi. IO told the accused about the secret information that police party was having information that accused is in possession of drugs for which his search is necessary and before his search he can take search of police party. IO also told accused that if he so desires his search can be taken in the presence of Gazetted Officer or Magistrate which was his legal right. Thereafter he served notice u/s 50 NDPS Act upon the accused. The accused replied that he could read Hindi script but could not right in Hindi. Therefore, reply of the accused was written by ASI on the carbon copy of the said notice. Accused refused to avail his legal rights. ASI Sanjay took search of polythene bag of the accused. The said bag contained two polythene bags (momi theli) out of which one momi theli was containing brown colour powder and other was containing matiala colour powder. IO was having his IO kit, field testing kit, electronic weighing machine etc etc with him. Thereafter FIR No.216/2018 State Vs.Mohd Rubal Page No. 4/43 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.06.09 14:21:18 -0300 IO/ASI checked the recovered substances through field testing kit and showed it to be heroin. Thereafter IO weighed the momi thaili containing brown powder after separating its rubber band with which it was tied, on electronic weighing machine and it came out 460 grams. IO gave the said momi thaili mark A. IO separated two samples of 10 grams each from said thaili and kept them separately and gave them mark A1 and A2 and prepared their white cloth pullandas. The remaining brown powder was kept in the same momi thaili. Thereafter IO weighed the other momi thaili containing matiala powder after separating its rubber band with which it was tied, on electronic weighing machine and it came out 320 grams. IO gave the said momi thaili mark B. IO separated two samples of 10 grams each from said thaili and kept them separately and gave them mark B1 and B2 and prepared their white cloth pullandas. The remaining case property in above two momi thailis after tying with their respective rubber bands were kept in the yellow polythene bag carried by the accused. The yellow thaila was converted in to a white cloth parcel and given mark C. All the above five pullandas were sealed by the IO with his seal of YS. Form FSL was also filled on the spot by the IO using the same seal. The pullandas and FSL form were seized vide Fard Ex. PW2/A bearing his signature at point A. He also put his signature on all the pullandas as witness. Seal of YS after use was given to Ct. Sandeep. At about 6.30pm IO/ASI after preparing tehrir, handed the same to him FIR No.216/2018 State Vs.Mohd Rubal Page No. 5/43 Digitally signed by ARUL ARUL VARMA Date:
VARMA 2023.06.09 14:21:28 -0300
alongwth all the pullandas, FSL form and copy of Seizure memo and directed him to hand over the tehrir to DO and remaining exhibts and documents to SHO, PS, Crime Branch. He was also directed to ask the DO to send another IO for further investigation. He took above said articles and documents by his scorpio and reached PS, Crime Branch, Pushp Vihar and handed over tehrir to duty officer and other pullandas , FSL form and copy of seizure memo to SHO, Satender Sangwan, who after inquiring FIR number from DO, mentioned FIR number on all the pulandas and documents and put his signature thereon. He also affixed his seal of SS on those pullandas and FSL form and after calling ASI Jagnarain/MHCM with register no. 19, deposited the case property. At about 9pm Duty Officer handed over to him the original tehrir and copy of FIR alongwith certificate u/s 65B Indian Evidence Act and directed him to hand over the same to IO/ASI Satender Singh. He called up ASI Satender Singh who told him that he was going on the spot and he should also come to the spot. Thereafter PW-2 reached the spot at about 9.30pm where he met ASI Satender Singh. He handed over to him the original tehrir and copy of FIR. At about 9.40pm 2nd IO arrested the accused vide arrest and personal search memos Ex. PW2/B and PW2/C, both bearing his signature at point A. From personal search of accused Rs. 700/- and original notice u/s 50 NDPS Act were recovered in his presence. Thereafter they all alongwith accused returned to their office FIR No.216/2018 State Vs.Mohd Rubal Page No. 6/43 Digitally signed by ARUL ARUL VARMA Date:
VARMA 2023.06.09 14:21:40 -0300
where accused was committed to custody. IO recorded his statement u/s 161 CrPC.
6. PW-3 ASI Jag Narayan, deposed that on 27.08.2018 he was posted as ASI and working as MHC (M) CP at PS Crime Branch, Pushp Vihar, New Delhi. On that day Insp. Satender Sangwan, the then SHO PS Crime Branch called him in his office with register no.19 (Malakhana Register) and handed over to him 5 sealed pullanda all duly sealed with seal of YS and SS along with FSL Form having same seal impressions and copy of seizure memo for depositing the same in Malkhana. He deposited the case property/exhibits vide entry no. 4177 Dt. 27.08.2018 in the Malkhana Register, copy of which was already mark-A and which was proved as Ex.PW3/A (OSR) which, SHO Insp. Satender Sangwan perused the entry and after being satisfied signed it at point A. On that day he had brought the original malkhana register regarding above said entry alongwith its copy which was proved as ExPW3/A1. In the present case on 28.08.2018 ASI Satender Singh deposited Rs.700/- and notice U/Sec. 50 NDPS Act (Personal search articles) which he deposited vide entry no.4178 Dt. 28.08.2018, copy of which was proved as Ex.PW3/B (OSR). On the instructions of SHO, on 29.08.2018 he sent 2 sealed pullandas of present case Mark-A1 and B1 with FSL Form and concerned documents to FSL vide RC No.473/21 Dt. 29.08.2018 through Ct. Pawan, who after depositing the case property in FSL Rohini handed over him FIR No.216/2018 State Vs.Mohd Rubal Page No. 7/43 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.06.09 14:21:53 -0300 copy of RC and acknowledgment slip which he kept on record. The relevant entry regarding sending of case property to FSL has been made by him on Ex.PW3/A vide portion B encircled red having his signature at point X. On 15.05.2019 Ct. Pawan took case property i.e. two sealed pullandas sealed with seal of FSL Delhi alongwith result and handed over to him which he deposited in the malkhana vide entry made by him on Ex.PW3/A vide portion C encircled red having his signature at point Y. He handed over result to IO. Original malkhana register seen, tallied with copy, found correct. Original register returned to the witness. Today, he had brought original RC Register regarding above-mentioned RC copy of which was proved as Ex.PW3/C (OSR). The copy of acknowledgment slip was proved as mark X.
7. PW-4 ASI Ravinder Singh, deposed that on 27.08.2018, he was working as ASI and was on duty at PS Crime Branch, Pushp Vihar as duty officer from 8:00 am to 08:00 pm. At around 07:30 pm, Ct. Surender produced one rukka to him for registration of the FIR. On the basis of said rukka, he got registered present FIR 216/18, PS Crime Branch through Computer Operator, copy of which was proved as Ex. PW4/A (OSR) bearing his signatures at point-A. On that day, he had brought the original FIR register which was seen and returned. His endorsement on rukka was proved as Ex.PW4/B and certificate u/s 65-B of the Indian Evidence Act was proved as Ex.PW4/C. Both bearing his FIR No.216/2018 State Vs.Mohd Rubal Page No. 8/43 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.06.09 14:22:07 -0300 signatures at point-A. He recorded 'kaymi' of present FIR vide DD No.22 of even date. The 'bandi' of FIR was entered by DD No.25 of even date and copy of FIR and original rukka was handed over to Ct. Surender for further handing over to ASI Satender.
8. PW-5 ASI Ajay Kumar deposed that he was posted as reader to ACP Interstate Cell, Crime Branch, Chanakya Puri, N. Delhi since June 2019. Pursuant to summons received in their office, he had brought original DD No.18 Dt.27.08.2018, ISC Crime Branch, Chanakya Puri, New Delhi which was received in their office on 27.08.2018 and was diarized in diary of correspondence maintained in their office vide Sl. No. 1285 on same day and bearing signature and endorsement of ACP Sh. Jasbir Singh which was proved as Ex.PW5/A. He had also brought original report u/s 57 NDPS Act sent by ASI Sanjay ISC Crme Branch, Chanakya Puri, New Delhi regarding seizure of heroin, which was received in their office on 28.08.2018 and was diarized in diary of correspondence maintained in their office vide Sl. No. 1286 on same day and bears signature and endorsement of ACP Sh. Jasbir Singh which was then Ex.PW5/B. He had also brought original report u/s 57 NDPS Act sent by ASI Satyender ISC Crime Branch, Chanakya Puri, New Delhi regarding arrest of accused Mohd Rubal Hussain Ali, which was received in their office on 28.08.2018 and was diarized in diary of correspondence maintained in their office vide Sl. No. 1287 on same day and bears FIR No.216/2018 State Vs.Mohd Rubal Page No. 9/43 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.06.09 14:22:24 -0300 signature and endorsement of ACP Sh. Jasbir Singh which was proved as Ex.PW5/C. He had also brought the original diary pertaining to entry of aforementioned documents/reports copy of which was proved as Ex.PW5/D (OSR).
9. PW6 Ct. Pawan deposed that on 27.08.2018 he was posted as constable at above stated office. On that day at about 11.00 a.m. when he was present in the office, ASI Sanjay formed a raiding party consisting of himself, Ct Pawan, Ct. Surender, Ct. Sandeep, Ct.Sudheer, Ct. Rahul, Ct. Mohit and W/Ct Roshni and briefed them that one person namely Rubal who is involved in supplying of drugs and heroin in the parts of Delhi would come in between 1.00 p.m. to 3.00 p.m. at Joga Bai Extension, New Delhi to deliver drugs/heroin. Thereafter, they left their office alongwith secret informer by two pvt. Cars out of which one was Bolero and another was Scorpio, registration no. of which he did not remember. They left their office at about 11.30 a.m. after making our departure entry vide DD no.19 in their office. In the Bolero Car he alongwith ASI Sanjay, Ct. Sandeep, Ct. Sudheer, Ct. Rahul and secret informer were sitting and the same was driven by Ct.Rahul. Other team members occupied Scorpio car driven by Ct. Surender. At about 12.00 noon they reached at Sarai Kale Khan Bus Terminal where IO requested 4-5 passersby to join the raid after intimating them about the secret informer, but none of them agreed and left without disclosing their names and FIR No.216/2018 State Vs.Mohd Rubal Page No. 10/43 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.06.09 14:22:38 -0300 addresses. At about 12.20 p.m. they reached at Batla House, Yamuna Khadar where they parked their vehicles and IO directed secret informer to go inside Batla House and to find out the whereabouts of accused Rubal. There also IO requested 5-6 passersby to join the raid after intimating them about the secret informer, but none of them agreed and left without disclosing their names and addresses. After some time the secret informer returned and told IO that accused Rubal will come at the top floor of S-3/6, Mannat Apartment, Joga Bai Extension, New Delhi. Thereafter, IO briefed them and directed to disperse and take separate positions in the Gali no.3-4 (The gali in which Mannat Apartment was situated). IO alongwith secret informer took position in the Gali near Mannat Apartment. He also stood surreptitiously in the gali at some distance. At about 3.35 p.m. one young boy was seen entering in the Mannat Apartment who started going upstairs. Thereafter, informer pointed out towards the said person to the IO who signaled them to apprehend said person, while relieving the secret informer. IO with the help of Ct. Surender and Ct. Sandeep apprehend said person who was apprehended while trying to go upstairs. The said person/boy was carrying black and yellow colour polythene in his right hand. IO informed the accused about the identity of police party and that they were having information about accused being in possession of drugs/heroin. IO also told accused that if he wishes he take search of entire police party FIR No.216/2018 State Vs.Mohd Rubal Page No. 11/43 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.06.09 14:22:48 -0300 and also told him that his search may be taken in front of any magistrate if he requires so. IO also inquired accused who disclosed his identity as Mohd. Rubal Hussain Ali r/o S-265/112, I.G.Camp, Part-I, Taimoor Nagar. Accused refused to be searched in the presence of Gazetted officer or Magistrate and also to take search of police party. IO served notice U/Sec. 50 NDPS Act upon accused. Accused told IO that he did not know how to write Hindi script and requested IO to write reply on his behalf. IO recorded reply on behalf of accused on which accused put his signature. Thereafter, IO checked the black and yellow colour polythene which was containing two momy polythene thaili inside it tied with rubber band containing powders. One of the said momy thaili was containing brown colour powder and other was containing matiala colour powder. IO marked the momy polythene thaili containing brown colour powder as mark-A and gave mark-B to momy polythene thaili containing matiala colour powder. IO checked substances of both the said thaili on field testing kit and found them positive for heroin (drug). Thereafter, IO weighed both the momy polythene thaili with rubber band separately on electronic weighing machine and the total weight of thaili mark-A came out as 460 gms and the total weight of thaili mark-B came out as 320 gms. IO separated two samples of 10 gms of each from the contents/powder of thaili mark-A and kept them in small transparent polythene pouches tied with rubber band separately sealed them in white FIR No.216/2018 State Vs.Mohd Rubal Page No. 12/43 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.06.09 14:22:57 -0300 cloth pullanda with seal of YS and gave them mark A 1 and A 2. IO separated two samples of 10 gms of each from the contents/powder of thaili mark-B and kept them in small transparent polythene pouches tied with rubber band separately sealed them in white cloth pullanda with seal of YS and gave them mark B 1 and B 2. Rest of the case property in polythenes mark-A and mark-B were tied with rubber band and kept in white cloth pullanda and sealed together with the seal of YS and pullanda was given mark-C. IO field form FSL with same seal impression and seized the case property vide memo already exhibited as Ex.PW2/A. Seal after use was handed over to Ct. Sandeep. Thereafter, IO recorded tehrir and handed over same to Ct.Surender alongwith case property, FSL form and copy of seizure memo and directed him to hand over tehrir to Duty Officer and rest of the case property to SHO, PS Crime Branch. Ct. Surender went to PS Crime Branch by the Scorpio. At about 8.00 p.m. ASI Satender reached at the spot. First IO handed over custody of accused and already prepared documents to second IO. Second IO prepared site plan at the instance of first IO. At about 9.30 p.m. Ct. Surender returned to the spot and handed over to second IO original tehrir and copy of FIR. Thereafter, accused was arrested and his personal search was conducted by the second IO at about 9.40 p.m. and his disclosure statement was recorded. From the personal search of accused Rs.700/- and original notice u/s 50 NDPS Act was received. Thereafter, FIR No.216/2018 State Vs.Mohd Rubal Page No. 13/43 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.06.09 14:23:08 -0300 they all came back to their office at around 10.30 p.m. On 29.08.2018 at the instance of IO, he went to PS Crime Branch at where he obtained two sealed pullandas Mark A and Mark-B both duly sealed with the seal of YS and SS alongwith FSL Form from MHC (M) ASI Jag Narain and he took the same FSL Rohini vide RC no.473/21 copy of which was already Ex.PW3/A bearing his signature at point A. He deposited the case property in FSL Rohini and obtained acknowledgment slip which alongwith copy of RC, he deposited with MHC (M) on his return to PS Crime Branch. IO recorded his statement to the above said effect.
10.PW-7 Sh. Yogesh Chandra Pandey, Sr. Scientific Officer deposed that he was an Msc. Chemistry and working as Senior Scientific Officer in FSL Rohini since 2017. Before that he was working as Chemist in Central Revenue Control Laboratory (CRCL) in Pusa, New Delhi. He worked at CRCL for about 18 years before joining in FSL, Rohini. During his working as Senior Scientific Officer, he had examined around 250 NDPS Cases and 400 cases in general and had deposed in various courts of law as an expert witness in said respect. In this case, on 29.08.2018 two sealed cloth parcels alongwith the forwarding letter all having one seal of YS & S.S. were received in our office through Ct. Pawan. The case was marked to was for examination. The seals on the parcels were intact and tallied with the seal on forwarding authority specimen seal. Parcels/pullanda were marked as A-1 & B-1 by the FIR No.216/2018 State Vs.Mohd Rubal Page No. 14/43 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.06.09 14:23:31 -0300 forwarding authority. On opening parcel Ex.A-1 was found containing reddish brown coloured powdery material with hard lumps, kept in a plastic pouch tied with rubber band, stated to be 'Heroin' weight 11.25 g (approx.) with plastic pouch & rubber band. On opening parcel Ex.B-1 was found containing light brown coloured powdery material with hard lumps, kept in a plastic pouch tied with rubber band, stated to be 'Heroin' weight 11.86 g (approx.) with plastic pouch & rubber band. Both were given mark as Ex.A-1 and Ex.B-1 separately.I conducted the examination on the above exhibits from 10.10.2018 to 31.10.2018. On chemical, TLC, GC and GC-MS examinations (i) Exhibits A-1 & B-1 were found to contain 'Diacetylmorphine', '6-monoacetylmorphine' and 'acetylcodeine'
(ii) Exhibits A-1 & B-1 were found to contain Diacetylmorphine 12.2% & 23.0% respectively. After the examination, the remnants of the exhibits have been sealed with the seal of 'YCP FSL DELHI' impression of which was provided by him on his detailed FSL Report which was proved as Ex.PW7/A(2 pages) bearing his signatures at point-A on each page.
11.PW-8 ASI Sanjay Tyagi deposed that on 27.08.2018, he was posted as ASI at ISC Crime Branch, Chanakyapuri, New Delhi. on that day, at about 10.50 am, he was present in his office when a secret informer reached him and informed him that a person namely Mohd. Rubal was involved in supply of heroin, smack, etc. in the areas of Delhi and he would come between 1 -3 pm at Joga Bai Ext., New Delhi with huge FIR No.216/2018 State Vs.Mohd Rubal Page No. 15/43 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.06.09 14:23:41 -0300 consignment of drugs/contraband for supplying the same, who could be apprehended, if raided and drugs could be recovered. This information was shared with his senior Inspector Narender Singh and he produced the secret informer before him. After inquiring the secret informer and satisfying himself, Inspector Narender Singh informed our ACP concerned namely Sh. Jasbir Singh about the secret information, who directed to take appropriate action. Thereafter, he recorded the secret information vide DD no. 18 of even date and forwarded its copy in compliance of section 42 of NDPS Act, to Inspector Narender Singh. As per direction of Inspector Narender Singh, he formed a raiding party consistingPW-8 ASI Sanjay, Ct. Surender, Ct. Sudhir, Ct. Pawan, Ct. Sandeep, Ct. Mohit, Ct. Rahul, W/ct Roshni and they all along with secret informer left their office at about 11.30 am vide departure entry no. 19 of even date by two private vehicles i.e. one Bolero car and Scorpio car both white colour. He also carried with him drug testing kit, electronic weighing machine and IO kit. At around 12.00 noon, they reached at Sarai Kale Khan, ISBT, where they stopped and he requested 4-5 passersby/public person after intimating them about the secret information, to join the raiding party, but none of them agreed. They further proceeded and at about 12.20 pm, they reached at Yamuna Khadar, Batla House. There he got parked both vehicles on the side of the road. Thereafter, informer was directed to locate the exact place where FIR No.216/2018 State Vs.Mohd Rubal Page No. 16/43 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.06.09 14:23:51 -0300 the accused was supposed to come. The secret informer told him that he would be going inside the Jogabai Ext. Colony for assuring the exact location of the arrival of the accused and the secret informer left them and after 10-15 minutes, the secret informer returned and told him that accused Mohd. Rubal would be coming at the Mannat Appartment, S-3/6, Top Floor, Joga Bai Ext. to supply contraband. Thereafter, they along with informer reached outside Mannat Appartment as above stated in the gali no. 3-4. I deputed the team members at different locations around the said building and keep the watch. He along with secret informer stood near the gate of Mannat Appartment and they remained moving at that time. At 3.35 pm, he saw a boy of dusky complexion (dark complexion) coming from the side of main road who entered in the Mannat Appartment and who was carrying in his right hand a polythene bag. The secret informer pointed out towards said person as accused Mohd. Rubal who was present in the court and correctly identified by the witness. It was further deposed that he relieved the secret informer from the spot and thereafter,they apprehended accused who had climbed the stairs and going upstairs in the Mannat Appartment with the help of Ct. Surender and Ct. Sandeep. He disclosed his identity of team members to the accused and told him that they were having secret information of accused having in possession of drugs/contraband. He also told accused that in that respect search of accused and his bag was required and it was legal FIR No.216/2018 State Vs.Mohd Rubal Page No. 17/43 Digitally signed by ARUL ARUL VARMA Date:
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right of accused to be searched in the presence of Gazetted officer or Magistrate. He also told accused that if he wants so, he could take search of police party/raiding team members prior to his search. Thereafter, he served notice u/s 50 NDPS Act upon the accused, original copy of which was proved as Ex. P7, bearing his signature at point A. On inquiry, accused told him that he could read Hindi script but was not able to write it. Accused refused to opt/exercise any of his legal right and told him that he did not want to take search of police party and also did not want to be searched in front of GO or Magistrate. On the request of accused, he wrote his reply on the carbon copy of notice which was proved as Ex. PW8/A from point X to X1 on which accused put his signature at portion Y encircled with red ink. Thereafter, he checked the black and yellow colour polythene found in the right hand of the accused, which was containing two momy polythene thaili inside it, tied with rubber band containing powders. One of the said momy thaili was containing brown colour powder and other was containing matiala colour powder. He marked the momy polythene thaili containing brown colour powder as mark-A and gave mark-B to momy polythene thaili containing matiala colour powder. He checked substances of both the said thaili on field testing kit and found them positive for heroin (drug). Thereafter, he weighed both the momy polythene thaili with rubber band separately on electronic weighing machine and the total weight of thaili mark-A came FIR No.216/2018 State Vs.Mohd Rubal Page No. 18/43 Digitally signed by ARUL ARUL VARMA Date:
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out as 460 gms and the total weight of thaili mark-B came out as 320 gms. He separated two samples of 10 gms of each from the contents/powder of thaili mark-A and kept them in small transparent polythene pouches tied with rubber band separately sealed them in white cloth pullanda with seal of YS and gave them mark A 1 and A 2. I separated two samples of 10 gms of each from the contents/powder of thaili mark-B and kept them in small transparent polythene pouches tied with rubber band separately sealed them in white cloth pullanda with seal of YS and gave them mark B 1 and B 2. Rest of the case property in polythenes mark-A and mark-B were tied with rubber band and kept in white cloth pullanda and sealed by him together with the seal of YS and pullanda was given mark-C. He filled form FSL with same seal impression and seized the case property vide memo already exhibited as Ex.PW2/A, bearing his signatures at point-B. Seal after use was handed over to Ct. Sandeep. Thereafter, he prepared tehrir Ex. PW8/B, bearing his signatures at point-A and handed over same to Ct.Surender alongwith case property, FSL form and copy of seizure memo and directed him to hand over tehrir to Duty Officer and rest of the case property to SHO, PS Crime Branch. Ct. Surender went to PS Crime Branch by the Scorpio. At about 8.00 p.m. ASI Satender (2nd IO) reached at the spot. He handed over custody of accused and already prepared documents to second IO. Second IO prepared site plan at his instance. 2 Nd IO recorded his FIR No.216/2018 State Vs.Mohd Rubal Page No. 19/43 Digitally signed by ARUL ARUL VARMA Date:
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statement u/s 161 CrPC and relieved him from the spot. After returning to office of Crime Branch, he prepared report u/s 57 of NDPS Act already Ex. PW5/B, bearing his signatures at point-A and submitted the same to Inspector Narender Singh.
12.PW-9 SI Satender Singh Yadav deposed that on 27.08.2018 he was posted at Inter State Cell, Crime Branch, Chanakya Puri, New Delhi. On that day in the morning at about 10:15 AM by the DD No. 5, he went in the area of Badarpur and Jaitpur to collect the information regarding some crime. In the evening at about 7:25 PM he received the telephonic call from Duty Officer, Crime Branch and he told him that ASI Sanjay Tyagi had got registered FIR under the NDPS Act as he had recovered 780 grams heroine from one person at Mannat Apartment, Jogabhai Extn., Jamia Nagar. He further told him that after the registration of the FIR, the investigation was assigned to him and he should reach the spot. In pursuance of the said call, at about 8 PM he reached the spot at Mannat Apartment, Jogabhai Extn., Jamia Nagar. At the spot, ASI Sanjay Tyagi met alongwith staff and the accused Rubal whose name was revealed by ASI Sanjay Tyagi later on. ASI Sanjay Tyagi had apprised him about hte proceedings conducted by him regarding the recovery of smack from the accused. ASI Sanjay Tyagi also handed over to him the seizure memo, carbon copy of notice u/s 50 NDPS Act and copy of FSL Form, alongwith the Tehrir and the accused. At the instance of ASI Sanjay Tyagi FIR No.216/2018 State Vs.Mohd Rubal Page No. 20/43 Digitally signed by ARUL ARUL Date:
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he inspected the spot and prepared the site plan already proved as Ex. PW-2/D1 bearing his signatures at point A. He then recorded the statement of ASI Sanjay Tyagi and let him free from the spot. Thereafter, Ct. Surender reached the spot after getting registered the FIR and he handed over the Asal Tehrir and copy of FIR to him. He perused these documents and put the FIR number on the seizure memo and other documents. He did not find any public person near the spot to join the investigation. He made enquiry from the accused and arrested him in this case vide his arrest memo Ex. PW-2/D which bears his signature at point B. he conducted the personal search of accused and prepared the memo thereof Ex. PW-2/C bearing his signature at point B. In the personal search of accused, Rs. 700/- cash and copy of notice u/s 50 NDPS Act were recovered. The information regarding his arrest was given to Smt. Rabia, his sister-in-law. The information was also given in writing which was proved as Ex. PW-9/A bearing his signatures at point A. He interrogated the accused and recorded his disclosure statement Mark X1 bearing his signature at point A. In pursuance of his disclosure statement, one Farooq who had supplied the smack to the accused was formally arrested but later on he was discharged by the court. Before arrest of Farooq, at the instance of accused Rubal, he prepared the pointing out memo of the house of Farooq which was proved as Ex. PW-9/C bears his signature at point A. He also recorded the supplementary disclosure FIR No.216/2018 State Vs.Mohd Rubal Page No. 21/43 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.06.09 14:24:42 -0300 statement of accused while he was in police custody which was proved as Mark X2 but in pursuance of the same nothing could be recovered or discovered. Ct. Sandeep had handed over the seal bearing impression YS, to him which was used by the first IO and given the same to him. He also seized the said seal through seizure memo Ex. PW-9/B bears his signature at point A. After the PC remand over, the accused was produced before the court and then he was remanded to JC. After returning to the office from the spot on 27.08.2018 he prepared the report u/s 57 NDPS Act and sent to ACP through the Inspector. The report was proved as Ex. PW-5/C bears his signature at point A. He recorded the statements of witnesses and after completion of investigation he prepared the charge sheet. After getting the FSL result of the substance recovered from the accused, the same was filed in the court which was already Ex. PW-7/A alongwith the supplementary charge sheet.
13.PW-10 Ct. Sandeep deposed that on 27.08.2018, he was posted in ISC Crime Branch at Chankaya Puri, Delhi. On that day, in pursuance of the direction of the senior officer, ASI Sanjay constituted a raiding party consisting PW-10 Ct Sandeep, Ct. Sudhir, Ct. Surender, Ct. Pawan, Ct.
Rahul, Ct. Mohit and W/Ct. Roshni at around 11:00 AM. Thereafter, DD No. 19 was recorded regarding their departure from their office and they proceeded by two private vehicles i.e. one white Bolero Car and the other Scorpio. At around 12:00 noon, they all reached at near Sarai Kale Khan FIR No.216/2018 State Vs.Mohd Rubal Page No. 22/43 Digitally signed by ARUL ARUL VARMA VARMA Date:
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Bus stand. There ASI Sanjay asked 4-5 passersby to join the raiding party but they refused to join them and went away after disclosing their reasonable excuses. Thereafter at about 12:20 PM, they reached at Batla House, Yamuna Khadar nearby the area of Joga Bai Extension. Upon reaching there, ASI Sanjay further asked 4-5 passerbys to join the raiding party but they refused to join them and went away after disclosing their reasonable excuses. He might state that before they proceeded from the office, IO/ASI Sanjay had taken IO kit, weighing machine and field testing kit from the office. One secret informer was also alongwith them. ASI Sanjay had sent the secret informer in the area of Joga Bai Extension to collect the information regarding the arrival of suspect. After sometime, the secret informer returned to the place where they were present. The secret informer had told that the suspect expected to be come in between 01:00 PM to 03:00 PM at the top floor of Mannat Apartment bearing no. 3/6, Joga Bai Extension, Batla House. ASI Sanjay deployed the raididing party members in the different streets near Mannat Apartment. At about 03:35 PM, one young boy having dark/shallow complexion had come and started upstairs of the Mannat Apartment. ASI Sanjay had got alerted them and got freed the secret informer. Then, ASI Sanjay with the help of him and Ct. Surender, apprehended the said young boy in the Mannat Apartment. The said young boy was holding a yellow and black colour polythene in his right hand. The name of the said FIR No.216/2018 State Vs.Mohd Rubal Page No. 23/43 Digitally signed by ARUL ARUL Date:
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person was revealed after inquiry as Mohd. Rubal S/o Mohd. Ayub Ali R/o Indira Gandhi Camp, Taimoor Nagar-I. He could not identify the said Mohd. Rubal in the court as he had forgotten his facial description. It was further deposed that ASI Sanjay apprised the said young boy about the secret information and told him that his search was to be taken in order to recover some Narcotics substance, if any. The IO had also offered the search of raiding party members to Mohd. Rubal before his search. The IO also apprised the said Mohd. Rubal that he had right to get his search conducted in the presence of some Gazetted Officer, if he so desired. The IO also gave one notice u/s 50 NDPS Act in this regard in original. The carbon copy of the said notice was already proved as Ex. PW 8/A, which bears his signature at Point A. Since the said Rubal showed his inability to write down his reply in Hindi. Thus, the IO had written down the reply on Rubal's behalf at Point X to X-1 below the notice Ex. PW 8/A and obtained his signature at Point Y. The said Rubal refused to get his search conducted in the presence of any Gazetted Officer or a Magistrate. Thereafter, the IO ASI Sanjay had conducted the search of polythene of the said Mohd. Rubal. The said polythene was found containing two more polythenes. The said two polythenes were also checked by ASI Sanjay. One of the polythene was found containing matiala colour powdery substance and the second polythene was found containing brown colour powdery substance. IO took out small quantity of substance from each of FIR No.216/2018 State Vs.Mohd Rubal Page No. 24/43 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.06.09 14:25:16 -0300 the polythenes and tested the same on field testing kit and substance of both the polythenes was revealed to be 'heroin'. The brown colour powdery substance was tied with a rubber band and Mark A was given to it and likewise the matiyala colour powdery substance was also tied with a rubber band and Mark B was given to it. Both the polythenes were weighed one by one. The brown colour powdery substance was found to be 460 gram and the matiala colour powdery substance was found to be 320 gram. The IO drew two samples of 10 gram each from polythene Mark A and given mark A-1 and A-2 to the samples. The IO also drew two samples of 10 gram each from polythene Mark B and given mark B- 1 and B-2 to the samples. The polythene Mark A and Mark B in the polythene of yellow and black colour and Mark C was given to it. All the same were converted into parcels and sealed them with the seal of 'YS'.
FSL form was also filled in. The seal was handed over to him after use. All the parcels with FSL form were seized through seizure memo Ex. PW 2/A, which bears his signature at Point C. Thereafter, ASI Sanjay had prepared tehrir and given it to Ct. Surender alongwith the copy of seizure memo, five sealed parcels and original FSL form. Ct. Surender was directed to get register the FIR after handing over tehrir to Duty Officer and remaining items were to be deposited in the malkhana. Accordingly Ct. Surender took the abovesaid items and went to PS Crime Branch. After sometime, the second IO/ASI Satender reached the spot. ASI FIR No.216/2018 State Vs.Mohd Rubal Page No. 25/43 Digitally signed by ARUL ARUL Date:
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Sanjay apprised him about the proceedings and handed over him the documents prepared by him alongwith the accused Mohd. Rubal. The IO conducted the personal search of Mohd. Rubal and recovered Rs. 700/- cash alongwith the original notice u/s 50 NDPS Act and prepared the memo Ex. PW 2/C, which bore his signature at Point C. He arrested the accused vide arrest memo Ex. PW 2/B, which bore his signature at Point C. In the meantime, Ct. Surender had also reached at the spot and brought the copy of the FIR and original tehrir and handed over to ASI Satender. Thereafter, they all returned to their office at Chankya Puri alongwith the accused. There, the accused was interrogated and recorded his disclosure statement Mark X-1, which bore his signature at Point B. The IO recorded his statement in this regard.
14.The relevancy of the witnesses examined are succinctly delineated in the following tabular form:
PW NAME RELEVANCE
1 Inspector Satender He was posted as SHO PS Crime
Sangwan Branch and he received the FSL
Form, copy of seizure memo and
five white cloth pullandas which
was marked as mark A1 A2,
B1,B2 and C from PW-3 Ct
Surender which were sealed with
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seal of YS and on those five
pullandas and on FSL form he
affixed his seal of SS and
deposited the same in the
Malkhana after making entry in
Register no. 19 in compliance of
Section 55 of NDPS Act.
2 Ct Surender He was a part of raiding team
who investigated the case,
apprehended the accused and
effected recoveries from the
accused.
3 ASI Jag Narayan He was posted as ASI and
working as MHC(M) PS Crime
Branch and received 5 sealed
pullandas all duly sealed with
seal of YS and SS alongwith FSL
form and copy of seizure memo
and FSL form from PW-1
Inspector Satender Sangwan and
deposited the same in the
Malkhana after making entry in
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Registration no. 19 in compliance
of Section 55 of the NDPS Act.
4 ASI Ravinder Singh
5 ASI Ajay Kumar He was posted as Reader to
ACP Interstate Cell, Crime
Branch.
6 CT Pawan On the instructions of the IO, he
had taken case property ie two
sealed pullanda sealed with the
seal of YS & SS and FSL form
from MHC(M) vide RC No.
473/21.
7 Sh. Yogesh Chandra He was the FSL expert, who
Pandey, Sr Scientific proved his report viz Ex.PW7/A
Officer whereby it was opined that the
seized item contained Heroine
8 ASI Sanjay Tyagi He is the first IO of the case who
received secret information,
conducted investigation leading
to arrest of the accused, and
effected recoveries from him.
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9 SI Satender Singh He was the 2nd IO, to whom
Yadav investigation was assigned after
registration of the FIR, who
recorded statements of witnesses,
prepared site plan, interrogated
and arrested the accused,
conducted their personal search.
10 Ct Sandeep He was a part of raiding team
who investigated the case,
apprehended the accused and
effected recoveries from the
accused.
STATEMENT OF ACCUSED
15.Accused was examined u/s 313 Cr.PC. In his defence, he averred that he does not know anything about this case and has been falsely implicated in this case. He deposed that on 27.08.2018, he was present at his house at Mannat Apartmnet alongwith his family. On that day, ASI Satender alongwith ASI Sanjay Tyagi came to his house and told him to accompany them for inquiries which were to be conducted at their office from accused. Accused deposed that he accompanied them, where they took his signature forcibly on various blank, semi-written and written FIR No.216/2018 State Vs.Mohd Rubal Page No. 29/43 Digitally signed by ARUL ARUL VARMA Date:
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documents without disclosing its contents and consequences. Later on, accused got to know that they implicated him in the present case and planted the contraband upon him to rope him in the present false and fabricated case. Accused further deposed that he is an innocent and has nothing to do with alleged offence as the present case is false, fabricated and manipulated case against him, reasons best knonw to the police officials. He further deposed that his family members made a complaint to ACP concerned thereupon the ACP concerned said "sahi aur galat ka faisla Court karegi." Accused also deposed that he is an innocent. ASI Satender took the signatures of his sister-in-law (Ms Dulali) on various documents in his office, while he was preparing the documents pertaining to the present case. Further, accused lead DE in his defence.
EVIDENCE LED BY THE ACCUSED PERSON
16.In support of her defence accused examined one witness,the succinct testimony whereof are as follows:
17.DW-1 Ms Rabiya @ Dulali w/o Sh. Tajuddin deposed that on 27.08.2018, she was present alongwith her mother, her sister Razia and her husband Rubal at their residence that was on the Top floor of S 3/6, Mannat Apartment, Gali No. 3 & 4, Jogabai Extension, New Delhi. Around 10:30-11:00 AM, ASI Satender, ASI Sanjay Tyagi and one lady constable whose name she did not remember came at their house and started searching, she objected and asked for the search warrants. They FIR No.216/2018 State Vs.Mohd Rubal Page No. 30/43 Digitally signed by ARUL ARUL VARMA Date:
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abused them and took their cash and jewellery. They took the husband of her sister i.e. Mohd. Rubal to their office on the pretext of some inquiry. They also went to the office of the police i.e. I.S.C. Chanakyapuri, where they came to know that Mohd. Rubal was implicated in the false and fabricated case and also planted some contraband upon him. ASI Satender took her signatures on various blanks, semi-written and written documents, forcibly without disclosing the contents and consequences of those documents. She made a complaint to the ACP concerned at I.S.C. Chanakyapuri on the false implication of her brother-in-law namely Mohd. Rubal. The officer told them that " sach-jhooth ka faisla Court karegi". They moved an application before the Court through their counsel for confirming the mobile numbers and its locations of the mobile phone of ASI Satender and ASI Sanjay Tyagi before this Hon'ble Court, which was allowed by this Hon'ble Court. Her brother-in-law had nothing to do with the alleged offence and the alleged recovery was planted on him. The police officials also took the signature of his brother- in-law on various blank papers forcibly to rope in the present case. ARGUMENTS OF LD. ADDL. PUBLIC PROSECUTOR FOR THE STATE AND LD. DEFENCE COUNSEL
18. Sh. Wasi-Ur-Rahman, Ld. Public Prosecutor for the State submitted all the relevant material prosecution witnesses have been examined and cumulatively they have proved the case of prosecution beyond reasonable FIR No.216/2018 State Vs.Mohd Rubal Page No. 31/43 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.06.09 14:27:05 -0300 doubt. It was also submitted by Ld. Addl PP for State that after the prosecution evidence, the statement of accused has been recorded u/s 313 Cr.PC. In his statement, the accused nowhere explained any circumstance proved against him and put to him during his examination. The accused also did not claim any prejudice for non compliance of any provision, if any,. It shows that there is no prejudice caused to the accused even in case the non compliance of some provision, although, the substantial compliance has been done of all the required provisions.
19.Lastly, Ld. Addl PP for State contended that there is no reason to discard the testimony of witnesses examined in this case. Furthermore, there is no defence taken by the accused, which can be considered at par with the prosecution evidence. Hence, the accused is liable to be held guilty for the offence he is charged with. It was thus submitted by Ld. Addl PP for State that the case has been proved beyond reasonable doubt and thus accused ought to be convicted.
20. Per contra, Sh. Kamal J.S Maan, Ld. Counsel for accused submitted that the false case has been foisted upon the accused. It was submitted that the accused has a very strong defence and the plea of alibi but the same was demolished as his application u/s 91 Cr.P.C., did not see the light of the day. It was submitted to establish his defence, the accused has moved an application u/s 91 Cr.P.C. seeking the call details record and the tower locations of some of the police raiding members. It was submitted that FIR No.216/2018 State Vs.Mohd Rubal Page No. 32/43 Digitally signed by ARUL ARUL Date:
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had the CDR details being produced on record, the defence of the accused would have been established.
21.It was further submitted that this plea of false implication further gets fortified by the fact that co-accused Farukh was discharged by this Court. It was further submitted that key witnesses namely Narender Singh and ACP Jasbir Singh were not cited and produced as prosecution witnesses. It was further submitted that throughout the testimonies of prosecution witnesses, there is a mention of seal 'YS' i.e. the seal of ASI Yashpal Singh, and he too was not cited as a prosecution witness. It was further submitted that the raiding team members in this case, used to provide vehicles namely a Scorpio and Bolero but the owners of both these vehicles were not cited as the prosecution witnesses to establish the case of the prosecution that their vehicles has in fact been used during the raid.
22.Ld. Counsel had assailed the case of the prosecution by stating that there was total non-compliance of Section 42 NDPS Act. He has submitted that in the present case, ASI Sanjay Tyagi, without reducing the secret information in writing, conveyed this information to his senior officers namely Narender Singh and ACP Jasbir Singh.
23.This procedure, according to Ld. Counsel for the accused could not have been resorted to by ASI Sanjay Tyagi without first having reduced the secret information in writing. To substantiate his contention, Ld. Counsel placed reliance on Peeraswami Vs. State NCT of Delhi 2007 (2) (1) FIR No.216/2018 State Vs.Mohd Rubal Page No. 33/43 Digitally signed by ARUL ARUL VARMA Date:
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JCC (Narcotics) passed by Hon'ble High Court of Delhi "6 Thus, the initial DD which was recorded by SI Raj Kumar talks of three things. One that he received information through an informer but before recording the same, he conveyed it to the Inspector Ashok Tyagi, and before the information was recorded, inspector Ashok Tyagi conveyed to senior Officers and also sent it in writing to them. When Inspector Ashok Tyagi appeared as PW-14 in the court, he deposed that when he was present in his office alongwith other staff on 5th January, 2001 at around 11:30 a, SI Raj Kumar received a secret information on telephone and he conveyed the telephone message to him. The information was that Peeraswmi and his wife Chamai appellants used to deal in smack and charas at their residence. He conveyed this information to his senior officials. In cross examination he admitted that he had not sent the information to his senior officers in writing and he only conveyed this information orally. He had not recorded the secret information on paper. SS Ex. PWs/A recorded at 11:30 am is not the information received by Sub Inspector Raj Kumar but is a detailed information recorded after deliberation giving who did what. Had SI Raj Kumar received the information and recorded it directly in DD, he could not have mentioned that he had informed about the information to his senior officials and his senior officials had in turn informed it to further senior officials and even sent a copy. When the information had been recorded by Sub Inspector Raj Kumar, how it could have been sent to senior officials in writing. Section Section 42(1) of the Act casts a duty upon the police officials to reduce the information in writing whenever commission of an offence in respect of narcotics drug or narcotic substances comes to his knowledge. After he reduces down the information in writing he has a duty to send a copy of the information to his superior officers within 72 hours. In fact Section 42 of the Act prescribes detailed procedure as to how a police officials has to proceed when he receives an information. This procedure is not a mere formality for the sake of it but it provides a safeguard against false implication of persons. Section 41(1) of the Act mandates a police officer to necessarily record the information in writing and Section 42(2) casts duty upon a police officer who takes down the information in writing to forthwith sent a copy of information to his immediate superior officials. In the present case, it is admitted by PW-14 that no copy of the information was sent by him to his senior officers. PW-2 FIR No.216/2018 State Vs.Mohd Rubal Page No. 34/43 Digitally signed by ARUL ARUL VARMA VARMA Date:
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who appeared from office of DCP has specifically stated that only a report under Section 52 of the Act regarding this case was received in the office of DCP from Special Staff. He proved this report as Ex. PW2/A and stated that no other document in respect of this case was received."
24.Ld. Counsel for accused further placed reliance on para 21 of Karnail Singh. Ld. Counsel has further relied upon the following extracts of the examination of PW-8 "This information was shared with my senior Inspector Narender Singh and I produced the secret informer before him. After inquiring the secret informer and satisfying himself, Inspector Narender Singh informed our ACP concerned namely Sh. Jasbir Singh about the secret information, who directed to take appropriate action. Thereafter, I recorded the secret information vide DD no. 18 of even date and forwarded its copy in compliance of section 42 of NDPS Act, to Inspector Narender Singh."
25.Ld. Counsel for applicant/accused submitted that there is total non compliance of Section 50 of NDPS Act. Ld. Counsel placed reliance on VijausinhChandubaJadeja Vs State of Gujarat 2010 (4) JCC 236 to contend that even though Section 50 of NDPS Act gives options to the police officer to take the suspect either before the nearest Gazetted Officer or the Magistrate. It was further submitted by Ld. Counsel for accused that neither the nearest Magistrate nor the Gazetted Officer was called at the spot and nor was the accused taken to the said officer despite there being ample time from the receipt of information of actual arrest. It was further submitted that no efforts were made by police officials to join the public persons as a witness to this case either for the raid or for the arrest or for the recovery of contraband item. Further, reliance was placed FIR No.216/2018 State Vs.Mohd Rubal Page No. 35/43 Digitally signed by ARUL ARUL VARMA Date:
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on Mohd Jabir Vs State Bail application no 1725/2022 to contend that the mandate of the judgment qua nearest Magistrate was also not complied with while serving the notice u/s 50 of the NDPS Act.
26.It was further submitted that the prosecution did not comply with the mandate of Union of India Vs Balmukund 2009 Crl L.J (SC) 2407 case. It was submitted that the standing order 1/88 especially clause 1.10 mandates that the envelop containing the FSL form should be sealed separately, which has not been done so in the present case. It was further submitted that the FSL form has to be prepared in triplicate as per the above standing order, which too, has not been complied with. It was further submitted that signatures of the accused were not taken on each and every sample which casts a serious doubt as to whether samples were drawn as per procedure or not. It was further submitted that the testimony of PW-6 makes its explicit that there was no endorsement of the person who took the samples to the FSL and who deposited the FSL result. Ld. Counsel further contended that there was non compliance of Section 52 A of NDPS Act as no application had been moved for disposal of case property.
27. It was further submitted that there has been non compliance of Section 42 and Section 57 of the NDPS Act. It was submitted that the entries in Ex. PW5/D were not proved. Neither was the ACP nor the Reader to the ACP examined. It was submitted that in the cross-examination of the PW- FIR No.216/2018 State Vs.Mohd Rubal Page No. 36/43
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5 it has been elicited that PW-5 never worked together with the Reader to the ACP in the Reader room and therefore PW-5 would not be in a position to identify the signatures. It was further submitted that there is no entry or remark of the ACP in Ex. PW5/D and therefore there has been non compliance of Section 42 and Section 57 NDPS Act as registers have not been maintained properly. It was submitted that PW-8 ASI Sanjay Tyagi gave report u/s 57 NDPS Act to Inspector Narender Singh but Inspector Narender Singh was not examined as a witness to prove that he had sent the report to the ACP.
28.It was further submitted that the accused was apprehended at 3:35 PM as per the statement of PW-8 ASI Sanjay Tyagi, however, the time of arrest in the arrest memo is 9:40 PM. In this context, Ld. Counsel placed reliance on Sehdev Vs State 2009 (3) JCC (Narcotics) 128to contend that there is no concept of formal or informal arrest.
29. It was further submitted that even in the FSL acknowledgment of case acceptance there is no mentioning of seizure memo, sample seal in Mark X. It was further submitted that the FIR itself cannot be read as part of evidence inasmuch as no Section 65B certificate was filed, especially when it has come on record in the cross-examination of PW-4 that the typist was the sole operator and he also has not been examined as a witness. It was submitted that the version of the defense witness also ought to have been relied upon. It was thus submitted that the FIR No.216/2018 State Vs.Mohd Rubal Page No. 37/43 Digitally signed by ARUL ARUL Date:
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abovementioned discrepancies casts a doubt on the version of the prosecution and as such the accused ought to be exonerated.
STATEMENT OF REASONS FOR THE DECISION
30. The prosecution case in the present matter leaves a lot to be desired. In view of various contradictions and discrepancies hereinafter referred to, the evidence of the prosecution does not inspire conference.
31. At the very outset, it is pertinent to note that the right of the the accused to establish his defense was cut short as his application u/s 91 Cr.PC did not see the light of the day. The application was moved ostensibly to requisition call detail records and tower locations of the raiding team members, in order to demolish the case of the prosecution that they apprehended the accused at the spot. The application was filed by the accused on 30.05.2019 to preserve the call detail record and locations of mobile phone bearing no 9810431810 of ASI Satender and 7011851925 of ASI Sanjay Tyagi for 27.08.2018. Vide order dated 30.05.2019, directions were given by Ld. Predecessor of this Court to preserve the location chart of the abovesaid mobile numbers and the SHO/IO was directed to comply with the order. Despite lapse of several dates of hearing, the order was not complied with, impelling the counsel for the accused to move an application for seeking directions for compliance of order dated 30.05.2019. It was on 15.12.2022 that the IO/SI Satender Singh Yadav averred before the Cour that he had not received the copy of FIR No.216/2018 State Vs.Mohd Rubal Page No. 38/43 Digitally signed by ARUL ARUL Date:
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order dated 30.05.2019, and therefore the IO was directed to approach the service provider with the application u/s 91 Cr.PC for compliance of order dated 30.05.2019. However, on 19.01.2023 a status report was filed whereby it was brought to the fore that the Nodal Officers of Bharti Airtel replied that the mobile no 9810431810 does not belong to Bharti Airtel for the given period. Further, report of Nodal Officers of Reliance Jio replied that the data ie CDR record is not available as the period for which the data was sought is beyond two years and is not available in the system online. Under these circumstances, since the copy of the application u/s 91 Cr.PC was not given to the IO, necessary action was taken against the then Ahlamd Sh Rakesh Kumar. However, the fact of the matter is that grave prejudice has been caused to the accused inasmuch as his application u/s 91 Cr.PC was not adjudicated upon due to negligence of Court staff, and thus benefit of doubt should enure in favour of accused. In view of the above discussion, the testimony of defense witness cannot be discarded outrightly and the same is to be considered at par as the evidence of prosecution witnesses.
32. It was also brought to the fore that there was non compliance of Section 42 of the NDPS Act, which mandates reduction of secret information in writing. Ld. Counsel for the accused had vehemently contended that the secret information was conveyed to Superior Officers namely Inspector Narender Singh, who in turn conveyed the information to the ACP Sh. FIR No.216/2018 State Vs.Mohd Rubal Page No. 39/43
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Jasbir Singh, without the secret information having been reduced in writing. At this juncture, it would be pertinent to peruse the following extracts of Peeraswami (supra) filed by Ld. Counsel for accused;
"6 He had not recorded the secret information on paper. SS Ex. PWs/A recorded at 11:30 am is not the information received by Sub Inspector Raj Kumar but is a detailed information recorded after deliberation giving who did what. Had SI Raj Kumar received the information and recorded it directly in DD, he could not have mentioned that he had informed about the information to his senior officials and his senior officials had in turn informed it to further senior officials and even sent a copy."
33.In this context, it would be useful to peruse the DD whereby the secret information was allegedly reduced in writing ie DD No. 18 dated 27.08.2018 Ex. PW5/A. A perusal thereof reveals that not only the secret information but the formation of the raiding party has been mentioned therein. This lends credence to the assertions of Ld. Counsel for accused that the secret information was written after conveying of the information to the Superior Officers, in contravention of Section 42 of the NDPS Act.
34. It was also contended that there was non compliance of Section 57 of the NDPS Act. The legislative intent behind Section 57 of the Act, has been delved upon in Megha Ram v State of Rajasthan 1997 Cri LJ 3091 in the following words:
"Section 57 comes into play in the post-arrest period. It enjoins upon the officer, arresting an accused and effecting recovery of a narcotic drug or psychotropic substance from his possession, to inform his superior officers of the actions taken by him. Compliance of this provision is meant to serve a dual purpose. On the one hand it affords an element of authenticity to the action taken by him in the cause of FIR No.216/2018 State Vs.Mohd Rubal Page No. 40/43 Digitally signed by ARUL ARUL VARMA VARMA Date:
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preventing commission of offences against the NDPS Act. The consciousness of compliance of this section puts, in a sense, a sort of check on the arbitrary exercise of his powers of arrest and seizure by him under the Act and creates a sense of responsibility in him to act in accordance with relevant provisions of law so as not to be undermined in the estimation of his superior officers with regard to the discharge of his duties as a responsible officer. On the other hand the communication of the information apprises the superior officers of the position of offences against the NDPS Act and also of the steps taken and compliance of the relevant rules made by their subordinates in the administration of the said Act. If the officer has acted as a vigilant and duty conscious officer in the pre-arrest-stage of the proceedings and his evidence discloses satisfactory compliance of the mandatory provisions relating to that stage of proceedings and inspires confidence in Court, non- compliance or compliance with some irregularity of certain provisions relating to post-arrest period would not be fatal to the prosecution case as that would be a case of an offence already committed and concluded. The purpose of compliance of S. 57 is to afford further reliability to the action already taken by the subordinate, officer. In that sense of the matter compliance of S. 57 is not mandatory but for that reason its importance in the scheme of the Act cannot be minimised (see State of Punjab v. Balbir Singh)"
35. In the present case, the ACP and the Reader to the ACP would be the best witnesses to establish compliance of this salutary provision. However, none of these police personnel were arrayed as witnesses. To prove compliance of Section 57 NDPS Act the prosecution examined ASI Ajay Kuamr as PW-5. This witness had brought the original report u/s 57 of NDPS Act. However, when cross examined, he averred that HC Nitin, who was, at the time of commission of the offence, the Reader to the ACP , and that he and HC Nitin have never worked together in the Reader room. He further avowed that in the diary of correspondence the ExPW5/D, the ACP never made any remark, entry, or signature. The FIR No.216/2018 State Vs.Mohd Rubal Page No. 41/43 Digitally signed by ARUL ARUL VARMA Date:
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witness further avowed that the name of the sender or the person, who brought the record in their office also does not find any mention in Ex. PW5/D and that their signature and time/date also do not find mention on Ex. PW5/D. Thus, it is evident that there was non compliance of Section 57 of NDPS Act.
36.The other discrepancies pointed out also cannot be ignored. Throughout the proceedings, there is a mention of seal of YS ie of ASI Yashpal Singh as averred by the prosecution witnesses. However, he too, was not cited as a prosecution witness. Inspector Narender Singh and ACP Jasbir Singh, who were the officials to whom the information u/s 42 NDPS Act was conveyed, were also not arrayed as witnesses. Further, during the course of arguments, Ld. Counsel had emphasized that Standing Order 1/88 issued by the NCB has assumed a mandatory nature vide the mandate of Union of India Vs Balmukund (Supra ). There has been non compliance of the above Standing Order inasmuch as the FSL has not been prepared in triplicate. The above highlighted discrepancies and infirmities in the case of the prosecution have raised doubts on the version of the prosecution. The burden of prove in criminal trial rests on prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence. In Mausam Singha Roy Vs State of West Bengal Crl Appeal no 231-234 of 2002 it was ordained by the Hon'ble Supreme Court that it is a settled principle of criminal jurisprudence that the more FIR No.216/2018 State Vs.Mohd Rubal Page No. 42/43 Digitally signed by ARUL ARUL VARMA Date:
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serious the offence, the stricter the degree of proof, since a higher degree of assurance is required to convict the accused. Such degree of proof is lacking in the present case and the benefit of doubt would enure in favour of the accused.
CONCLUSION
37.Ergo, in view of the reasons hereinabove discussed in extenso, this Court is of the considered view that the prosecution has not been able to establish its case beyond reasonable doubt that the accused Mohd. Rubal was found in possession of 780 Grams of Heroine on 27.08.2018, at about 03:35 PM at Building Mannat Apartments, S-3/6 Gali no. 3 and 4 Joga Bai Extension, New Delhi, and he is therefore acquitted for the offence punishable under Section 21 (c) of NDPS Act.
Announced in the open court
on 09.06.2023 Digitally
signed by
ARUL
ARUL VARMA
VARMA Date:
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(ARUL VARMA)
ASJ-04 & Spl. Judge (NDPS)
South-East District Saket Courts, New Delhi FIR No.216/2018 State Vs.Mohd Rubal Page No. 43/43