Delhi District Court
State vs Firoz on 28 March, 2025
IN THE COURT OF ALOK SHUKLA, ADDITIONAL SESSION
JUDGE-02, SPECIAL JUDGE (NDPS), EAST DISTRICT,
KARKARDOOMA COURT, DELHI
CNR No. DLET01-004460-2019
Session Case No. 1859/2019
State versus Firoj
First Information Report No. 84/2019
Police Station Gazipur
Under Section 20/61/85 NDPS
In the matter of: -
STATE
Versus
Firoj
Son of Basir Ahmed,
Resident of Gali no. 6,
Gazipur Dairy Farm,
Delhi.
Date of Institution : 15.05.2019
Date of reserve for judgment : 28.03.2025
Date of decision : 28.03.2025
JUDGMENT
1. Accused Firoj has been charged for the offences under Section 20 NDPS Act and 174A IPC.
2. Brief Facts of the case are that on 28.03.2019, a secret information was received by SI Amit Bhardwaj, who was present in PS Gazipur at about 7 pm that a person namely Firoz, who was residing in Ghazi Pur Dairy Jhuggi, would come for supply of Gaanja (cannabis) in Ghazi Pur Jhuggis, between 8 PM to 9 PM. He immediately conveyed the information to senior officers and lodged a DD Entry vide DD No 49-B for necessary compliance of U/s-42(2) NDPS Act. Thereafter, SI Amit Bhardwaj constituted a raiding team comprising of himself, HC Budh Pal 1332/E, Ct Neetu 1311/E, Ct Sachin 1196/E & secret Page no. 1 informer for compliance of directions of Senior Officer. Thereafter, he along with team members reached at the spot and at about 08.40 PM, he saw one person wearing black colour T-shirt & grey colour pant coming from Vivek Dharma- Kanta main road side, carrying one plastic polythene in his hand and the secret informer identified him as Firoj. IO SI Amit Bhardwaj along with raiding team tried to apprehend Firoj, however, in the meantime, Firoj threw the plastic polythene at road side and tried to flee away from spot. Thereafter, SI Amit Bhardwaj apprehended the said person after following him for some distance. The apprehended person was identified as Firoz S/o Basir Ahmed R/o Jhuggi No. 488 Gali No. 7 Ghazi Pur Dairy Farm. The plastic polythene carried by the accused was searched by IO SI Amit Bhardwaj and he found Gaanja inside it. The same was weighed on the electronic weighing machine and weight of recovered contraband was found to be 1 KG 400 Gram (total 1.4 KG), out of which, two samples of 250 gm each were drawn by the IO in separate transparent polythenes and the same were converted into two parcels marked as 'A' & 'B'. Remaining 900 grams Ganja (canabbis) was kept in a transparent polythene and converted in a separate parcel marked as 'C". Parcels A, B, and C were sealed with the seal of "PS GHAZIPUR GP-04 EAST DISTT". IO served the notice under Section 50 NDPS Act on the accused and explained his right under Section 50 NDPS Act to the accused. Accused refused to avail his rights under Section 50 NDPS Act and recorded his refusal on the carbon copy of the notice under Section 50 NDPS Act. Thereafter, Sh Vijay Singh, ACP/ Madhu Vihar was called to spot for necessary compliance of section 50 NDPS Act. The personal search of accused Firoz was conducted on spot in the presence of ACP/ Madhu Vihar, however, no further recovery of any illegal substance was made Page no. 2 from his physical possession. IO filled the FSL Form. He sent all the three parcels and FSL Form, seizure memo through Ct. Neetu to Inspector Prem Singh Negi (SHO, PS Ghazi Pur) for compliance of Section 55 NDPS Act. Rukka was prepared and sent for registration of case against drugs peddler Firoz. The present case was registered against the accused Under Section 20 NDPS Act and ASI Shiv Om was directed to conduct further investigation. ASI Shiv Om alongwith Ct. Neetu reached the spot, where SI Amit Bhardwaj handed over the articles recovered from the personal search of accused to him. Site plan was prepared at the instance of SI Amit Bhardwaj by ASI Shiv Om. IO recorded disclosure statement of accused. Accused Firoj was arrested and case property was deposited in the malkhana. After completion of investigation, chargesheet under Section 20/61/85 NDPS Act was filed against accused Firoj. Supplementary chargesheet alongwith FSL report was filed by the IO. FSL report shows that the sample in parcels A and B were found to be Ganja.
Further, during pendency of the trial, accused Firoj stopped appearing before the Court and process under Section 82 Cr.P.C. was issued against the accused. Statement of process server, who had executed process under Section 82 Cr.P.C. was recorded and accused was declared proclaimed offender vide order dated 23.11.2021. Thereafter, supplementary chargesheet under Section 174A IPC was filed against the accused Firoj.
CHARGES AGAINST THE ACCUSED
3. Charge for the offence under Section 20(b)(ii)(B) NDPS Act was framed against accused vide order dated 01.08.2019 to which he pleaded not guilty and claimed trial. Further, vide order dated 28.02.2022, charge for the offence under Section 174 Page no. 3 IPC was framed against accused to which he pleaded not guilty and claimed trial.
PROSECUTION WITNESSES
4. Eleven prosecution witnesses were examined during the course of trial.
5. PW1 ASI Rakesh Kumar, No. 352/East, ACP Office Madhu Vihar, Delhi brought the summoned record and deposed that on 28.03.2019, copy of DD No.49B PS Gazipur was received in their office vide diary no.1453, which was produced before ACP Sh. Vijay Singh, who had seen and signed the same. He identified said DD Ex.PW1/A and copy of the diary register containing entry no.1453 in this regard Ex.PW1/B (OSR). He further deposed that on 29.03.2019, reports u/s 57 NPDS Act prepared by ASI Shiv Om and SI Amit Bhardwaj were received in their office, which were diaried vide diary No.1455 and 1478. He further deposed that reports were produced before ACP concerned, who had seen and signed the same at point X. He identified reports Ex.PW1/C and Ex.PW1/D as well as copy of diary register containing diary no.1455 and 1478 Ex.PW1/E (OSR).
6. PW2 Inspector Prem Singh, No.D1/858, SHO PS Gazipur, Delhi deposed that on 28.03.2019, he was posted as SHO PS Gazipur and on that day at about 7.10 pm, while he was present in his office, SI Amit Bhardwaj produced a secret informer before him, who was having information regarding ganja. He made inquiry from the secret informer about the secret information and after satisfying himself directed SI Amit to take necessary action. He further deposed that SI Amit Bhardwaj also produced DD No.49B Ex.PW1/A in compliance of Page no. 4 section 44(2) NDPS Act and he forwarded the same to ACP concerned. He further deposed that at about 11 pm, Ct. Neetu came to his office and produced three sealed parcels sealed with the seal of PS GHAZIPUR GP04 EAST DISTT, Mark A, B, C with FSL form having same seal initial and copy of seizure memo. He confirmed FIR number from Duty officer and mentioned it on the parcels and FSL form and copy of seizure memo. He also sealed the said parcels and FSL form with the seal of PS GHAZIPUR GP01 EAST DISTT and signed the same. He put his note on the copy of seizure memo. Thereafter, he called HC Arvind Kumar, MHC(M) in his office with register no.19 and handed over the said parcels, form FSL and copy of seizure memo to him for depositing in malkhana, who made entry in register no.19 in this regard and he signed against the said entry. He also lodged DD No.69 in this regard. He further deposed that on the next day i.e. 29.03.2019 at about 4.30 am, ASI Shiv Om produced accused Firoz before him and narrated the facts. IO recorded his statement. On the same day, he forwarded reports u/s 57 NDPS Act prepared by ASI Shiv Om and SI Amit Bhardwaj Ex.PW1/C and Ex.PW1/D. He identified copy of DD no.69A Ex.PW2/A.
7. PW3 Sh Vijay Singh, ACP/Madhu Vihar, Delhi deposed that on 28.03.2019 at about 7.30 pm, he received a telephonic call from SHO Gazipur, who informed him that they were having a secret information that a boy who was engaged in the illegal sell of ganja, would come to sell ganja and if raid was conducted, that boy could be apprehended. He directed them to take necessary action. Thereafter, at about 9.30 pm, he received a call from SI Amit Bhardwaj, who informed him regarding recovery of ganja from a boy and requested him to reach the spot. He accordingly, reached the spot i.e. near Toilet, Page no. 5 gali no.6, Gazipur Dairy Farm, Delhi, where SI Amit Bhardwaj along with HC Budhpal, Ct. Sachin and Ct. Neetu and accused Firoz were present. He introduced himself to the accused and apprised him about his legal right. He told accused that accused could take search of the police officials and police vehicles before his search but accused refused for the same. Thereafter, SI Amit Bhardwaj took search of the accused during which cash of Rs.350/-, one mobile phone and original notice u/s 50 NDPS Act were recovered and no further contraband was found in the search of the accused. He further deposed that SI Amit Bhardwaj prepared a memo in this regard Ex.PW3/A. Thereafter, PW3 left the spot. His statement was recorded by the IO. He correctly identified the accused in the Court. He also identified copy of DD No.49B Ex.PW1/A, which was produced before him on 28.03.2019 by his Reader and he had seen and signed the same. He further identified reports u/s 57 NDPS Act Ex.PW1/C and Ex.PW1/D prepared by Shiv Om and SI Amit Bhardwaj, which were also produced before him on 29.03.2019 by his Reader and he had seen and signed the same.
8. PW4 HC Budhpal Singh, No. 1332/East, PS Gazipur, Delhi deposed that on 28.03.2019 at about 7.40 pm, SI Amit Bhardwaj prepared a raiding party including himself, PW4, Ct. Sachin and Ct. Neetu after apprising them about the secret information. He further deposed that members of the raiding party left PS in his car with secret informer and reached near Toilets, Jhuggi Gazipur, Dairy Farm, Delhi and he parked his car at some distance from the toilets. He further deposed that SI Amit Bhardwaj asked 4-5 passersby to join the raiding party after telling about the secret information but none agreed and left the spot without telling their names and addresses and thereafter, SI Amit Bhardwaj briefed the members of the raiding Page no. 6 party and they had taken position in the radius of 20 meters near toilets. He further deposed that at about 8.40 pm, accused was seen while coming from main road Gazipur Dairy Farm, Vivek Dharam Kanta carrying white polythene in his right hand and on the identification of secret informer, when the members of the raiding party rushed towards the accused, accused had thrown the polythene carried by him towards other side. He further deposed that they apprehended the accused and SI Amit Bhardwaj picked the said polythene and checked the same, which was found containing substance appearing and smelling like ganja. He further deposed that on inquiry, the name of the accused was revealed as Firoz. He further deposed that SI Amit Bhardwaj weighed the ganja on electronic weighing machine and found it to be 1 KG 400 Grams. Two samples of 250 grams each were taken out from the said ganja and kept in transparent polythene which were tied with rubber band and converted into two cloth parcels with the help of cloths and given Mark A and B and remaining 900 grams was kept in the same polythene and converted into pullanda which was given Mark C. He further deposed that Form FSL was filled by the IO and all the three parcels and form FSL were sealed with the seal of PS Gazipur GP04 East Distt and seized vide seizure memo Ex.PW4/A and seal after use was handed over to Ct. Sachin. He further deposed that SI Amit Bhardwaj told accused that there are chances of further recovery of contraband from him and for that his search was to be conducted and it was his legal right that his search could be taken in the presence of Gazetted Officer or a Magistrate or that he could take search of the raiding team member prior to his search if he so desires, but he refused. He further deposed that thereafter, IO SI Amit Bhardwaj prepared notice u/s 50 NDPS Act and original notice was given to the accused and accused wrote his refusal reply on the carbon Page no. 7 copy of the notice u/s 50 NDPS Act. He further deposed that accused also refused to take search of members of raiding team and his vehicle. He further deposed that SI Amit Bhardwaj informed ACP Madhu Vihar regarding recovery of ganja from the accused and requested him to come to the spot and ACP Sh. Vijay Kumar reached at the spot at about 9.40 pm. He further deposed that SI Amit Bhardwaj took the search of the accused in presence of ACP but no further contraband was recovered from him, however, cash of Rs.350/- one mobile phone and original notice u/s 50 NDPS Act were recovered vide seizure memo Ex.PW3/A. He further deposed that SI Amit Bhardwaj prepared a tehrir and gave it to Ct. Neetu along with all the three sealed parcels Mark A, B and C, form FSL and carbon copy of seizure memo with direction to hand over the rukka to DO and remaining articles to SHO and Ct. Neetu left the spot at about 10:20 pm. He further deposed that at about 12:25 am (29.03.2019), ASI Shiv Om along with Ct. Neetu came at the spot and SI Amit Bhardwaj handed over the accused and documents to ASI Shiv Om as investigation was assigned to him, who prepared site plan at the instance of SI Amit Bhardwaj and relieved him from the spot after recording his statement. He further deposed that IO ASI Shiv Om arrested the accused at about 3.10 am vide arrest memo Ex.PW4/B and recorded his disclosure statement Ex.PW4/C. His statement was recorded by the IO and he was relieved. He identify the accused before the Court and case property i.e. one sealed parcel Mark A sealed with the seal of KG FSL Delhi and on opening the same, one cloth pullanda having seal of PS Gazipur GP04 East Distt and GP-01 PS Gazipur East Distt, and containing remnants of sample ganja Ex.P1, one sealed parcel Mark B sealed with the seal of KG FSL Delhi and on opening the same, one cloth pullanda having seal of PS Gazipur GP04 East Distt and GP-01 Page no. 8 PS Gazipur East Distt, and containing remnants of sample ganja Ex.P2, one sealed cloth parcel Mark C sealed with the seal of PS Gazipur GP04 East Distt and PS GAZIPUR GP-01 EAST DISTT. and on opening the same, it is found containing remaining ganja kept in polythene Ex.P3 colly and one envelope containing one mobile phone, cash of Rs. 350/- and original notice u/s 50 NPDS Act Ex.PW4/D.
9. PW5 Ct. Sachin Kumar, No.1196/East, PS Gazipur, Delhi deposed that on 28.03.2019, he was posted at PS Gazipur as constable and on that day, he was on duty and at about 7:40 pm, SI Amit called him, HC Budhpal and Ct. Neetu in his office and apprised them about the secret information that one person named Firoz r/o Gazipur Diary Farm, who was in the business of Ganja, would come on that day between 9-10 pm along with ganja and there are chances of recovery of ganja and thereafter, SI Amit constituted a raiding party comprising himself, PW5, Ct. Neetu and HC Budhpal and they left PS in the car of HC Budhpal with secret informer and reached near Toilets, Jhuggi Gazipur, Dairy Farm, Delhi. He further deposed that HC Budhpal parked his car at some distance from the toilets and SI Amit asked 4-5 passersby to join the raiding party after disclosing the secret information to them but none agreed and left the spot without telling their names and addresses and showing their genuine concerns and due to paucity of time, no notice was given to them. He further deposed that thereafter, SI Amit Bhardwaj briefed the raiding party and they took position in the radius of 20 meters near toilets in scattered manner and at about 8:40 pm, accused, who was identified by the witness before the Court, was seen while coming from main road Gazipur Dairy Farm, Vivek Dharam-Kanta carrying white polythene in his right hand and on the pointing out of secret Page no. 9 informer, the raiding party rushed towards the accused and on seeing this, accused had thrown the polythene carried by him towards other side and raiding team apprehended the accused. He further deposed that SI Amit Bhardwaj picked the said polythene and checked the same and found containing some fruity and leafy material and smell of ganja was coming out. He further deposed that on inquiry, the accused revealed his name as Firoz. He further deposed that SI Amit Bhardwaj weighed the ganja on electronic weighing machine and its weight was found to be 1 KG 400 Grams out of which, two samples of 250 grams each were taken out and kept in transparent polythene, which were tied with rubber band and converted into two cloth pullandas with the help of cloths and gave Mark A and B to the samples and the remaining 900 grams was kept in the same polythene and converted into pullanda which was given Mark C. He further deposed that Form FSL was filled by the IO and all the three pullandas and form FSL were sealed with the seal of PS Gazipur GP04 East Distt and seized vide seizure memo Ex.PW4/A and seal after use was handed over to him. He further deposed that SI Amit Bhardwaj told the accused that there are chances of further recovery of contraband from him and for that purpose, his search was to be conducted and it was his legal right that his search could be taken in the presence of Gazetted Officer or a Magistrate or that he could take search of the raiding team member prior to his search, if he was so desired. He further deposed that the meaning of Gazetted Officer and Magistrate was also explained to accused but he refused for the same and thereafter, IO SI Amit Bhardwaj prepared notice u/s 50 NDPS Act vide carbon process and original notice was served to the accused and accused wrote his refusal reply on the carbon copy of the notice u/s 50 NDPS Act and he also refused to take search of members of raiding Page no. 10 team and vehicle. He further deposed that SI Amit Bhardwaj informed ACP Madhu Vihar regarding recovery of ganja from the accused and requested him to come at the spot and ACP Sh. Vijay Kumar reached at the spot at about 9.40 pm and SI Amit Bhardwaj took the search of the accused in presence of ACP but no further contraband was recovered from him, however, cash of Rs. 350/-, one mobile phone and original notice u/s 50 NDPS Act were recovered, which were vide seizure memo Ex.PW3/A. He further deposed that SI Amit Bhardwaj prepared a tehrir and given to Ct. Neetu along with all the three sealed pullandas Mark A, B and C, form FSL and carbon copy of seizure memo with direction to hand over the rukka to DO and remaining articles to SHO and Ct. Neetu left the spot at about 10.20 pm. He further deposed that at about 12.25 am (29.03.2019), ASI Shiv Om along with Ct. Neetu came at the spot and SI Amit Bhardwaj handed over the accused and documents to second IO ASI Shiv Om as investigation was assigned to him, who prepared site plan at the instance of SI Amit Bhardwaj and relieved him from the spot after recording his statement. He further deposed that IO ASI Shiv Om arrested the accused at about 3.10 am vide arrest memo Ex.PW4/B and recorded his disclosure statement Ex.PW4/C. He further deposed that after all the proceedings at the spot, they all left for PS Gazipur and reached there at about 4.30 am and accused was produced before SHO and the articles recovered in the search of accused i.e. cash of Rs.350/-, one mobile phone make Samsung and notice u/s 50 NDPS Act were deposited in Malkhana by the IO. He further deposed that accused was taken to LBS Hospital by him for his medical examination and after his medical examination, accused was sent to Kalyanpuri Lockup. His statement was recorded at 5.05 am. He identify the accused before the Court and case property Page no. 11 i.e. one sealed parcel Mark A sealed with the seal of KG FSL Delhi and on opening the same, one cloth pullanda having seal of PS Gazipur GP04 East Distt and GP-01 PS Gazipur East Distt, and containing remnants of sample ganja Ex.P1, one sealed parcel Mark B sealed with the seal of KG FSL Delhi and on opening the same, one cloth pullanda having seal of PS Gazipur GP04 East Distt and GP-01 PS Gazipur East Distt, and containing remnants of sample ganja Ex.P2, one sealed cloth parcel Mark C sealed with the seal of PS Gazipur GP04 East Distt and PS GAZIPUR GP-01 EAST DISTT. and on opening the same, it is found containing remaining ganja kept in polythene Ex.P3 colly and one envelope containing one mobile phone, cash of Rs. 350/- and original notice u/s 50 NPDS Act Ex.PW4/D.
10. PW-6 Constable Praveen Kumar, No. 944 East, PS Gazipur, Delhi deposed that on 01.04.2019, he had taken two sealed sample pullandas alongwith FSL form having sample seal alongwith relevant documents from MHC(M) HC Arvind for depositing the same with FSL, Rohini but on that day, the said parcels and documents could not be deposited due to some objection. He deposited the parcels and the documents with the MHC(M) on the same day and informed about the same to the IO ASI Shiv Om. He further deposed that on 02.04.2019, he was again instructed to take the said parcels and documents for depositing the same with FSL, Rohini and accordingly, he took the same from the MHC(M) concerned and deposited the same with the FSL, Rohini on the same day vide road certificate no. 51/21/19. He further deposed that the said samples and documents were acknowledged by FSL, Rohini and an acknowledgment was also provided which he handed over to the MHC(M) concerned and he identified copy of road certificate Page no. 12 and acknowledgment marked PW6/Mark A and PW-6/Mark B. He further deposed that no mishandling was done to the parcels and the seals of the parcels from the time he took the same from MHC(M) and deposited with the FSL, Rohini.
11. PW-7 Head Constable Arvind Kumar No. 740 East, PS Gazipur, Delhi deposed that on 28.03.2019, he was working as MHC(M) at PS Gazipur and at about 11:15 pm, SHO Inspector Prem Singh called him in his office alongwith register no. 19 and SHO handed over him three sealed parcels A, B and C sealed with the seal of "PS GHAZIPUR GP-04 EAST DISTT.", "PS GHAZIPUR GP-01 EAST DISTT." alongwith carbon copy of seizure memo having details of FIR no. 84/19. He made entry in a register no. 19 at serial number 75, which was duly signed by the SHO and SHO also lodged a DD no. 69 A at about 11:30 pm regarding the proceedings u/s 55 of NDPS Act. He further deposed that at about 04:40 am, IO ASI Shiv Om had deposited the original notice u/s 50 NDPS Act, cash of Rs. 350/- and one Samsung Mobile Phone of Golden Colour recovered from the personal search of the accused and identified entry Ex. PW-7/1 (OSR). He further deposed that on 02.04.2019, on the instructions of SHO, he handed over two sample parcels Mark A and B duly sealed with the seal of "PS GHAZIPUR GP-04 EAST DISTT." And "PS GHAZIPUR GP-01 EAST DISTT." alongwith forwarding letter to Ct. Parveen for depositing the same with FSL, Rohini vide road certificate no. 51/21/19 Ex. PW-7/2 (OSR) and after depositing the sample parcels, Ct. Parveen handed over acknowledgment Ex. PW-7/3 (OSR).
12. PW8 Ct. Neetu No. 1311 East, posting at PS Patparganj Industrial Area, Delhi deposed that on 28.03.2019, he was posted at PS Gazipur and on that day at about 7.40 pm, SI Amit Page no. 13 Bhardwaj prepared a raiding party including himself, PW8, Ct. Sachin and HC Budhpal Singh after apprising them about the secret information and raiding party left PS in his car with secret informer and reached near Toilets, Jhuggi Gazipur, Dairy Farm, Delhi and they parked the car at some distance from the toilets. He further deposed that SI Amit Bhardwaj asked 4-5 passersby to join the raiding party after telling about the secret information but none agreed and left the spot without telling their names and addresses and thereafter, SI Amit Bhardwaj briefed the raiding party and they took position in the radius of 20 meters near toilets and at about 08:30-8.40 pm, accused Firoz was seen while coming from main road Gazipur Dairy Farm, Vivek Dharam Kanta carrying white polythene and on the identification of secret informer, when the raiding party rushed towards the accused, accused threw the polythene carried by him towards other side and they apprehended the accused. He further deposed that SI Amit Bhardwaj picked the said polythene and checked the same, which was found containing substance appearing and smelling like ganja and on inquiry, the name of the accused was revealed as Firoz. He further deposed that SI Amit Bhardwaj weighed the ganja on electronic weighing machine, which was found to be 1 kg 400 grams out of which two samples of 250 grams each were taken out from the said ganja and kept in transparent polythene, which were tied with rubber band and converted into two cloth parcels with the help of cloths and remaining 900 grams was kept in the same polythene and converted into pullanda and all the three parcels and form FSL were sealed with the seal of PS Gazipur GP04 East Distt and seized vide seizure memo Ex.PW4/A. It is further deposed that SI Amit Bhardwaj told the accused that there are chances of further recovery of contraband from him and for that purpose, his search was to be conducted and it was his legal Page no. 14 right that his search could be taken in the presence of Gazetted Officer or a Magistrate or that he can take search of the raiding team member prior to his search if he was so desired but accused refused for the same. He further deposed that IO SI Amit Bhardwaj prepared notice u/s 50 NDPS Act and original notice was given to the accused and accused wrote his refusal on the carbon copy of the notice u/s 50 NDPS Act and also refused to took search of members of raiding team and their vehicle. He further deposed that SI Amit Bhardwaj informed ACP Madhu Vihar regarding recovery of ganja from the accused and requested him to come to the spot and ACP Sh. Vijay Kumar reached at the spot at about 9.40 pm and SI Amit Bhardwaj took the search of the accused in presence of ACP but no further contraband was recovered from him, however, cash of Rs. 350/-, one mobile phone and original notice u/s 50 NDPS Act were recovered, which were seized vide seizure memo Ex.PW3/A and thereafter, SI Amit Bhardwaj prepared a tehrir and given to him along with all the three sealed parcels Mark A, B and C, form FSL and carbon copy of seizure memo with direction to hand over the rukka to DO and remaining articles to SHO and he left the spot at about 10.20 pm. He further deposed that he handed over the rukka to the HC Satyender for registration of the FIR and produced the pullandas, FSL form, seizure memo before the SHO, Inspector Prem Singh Negi. He further deposed that duty officer registered the FIR of this case and SHO mentioned the FIR number on the said pullandas and seizure memos and also put his seal on the said pullandas and handed over same to the MHC(M) HC Arvind. He further deposed that duty officer handed over copy of FIR and original rukka to him and he returned to the spot and handed over copy of FIR and original rukka to ASI Shiv Om Kumar for investigation. He reached at Page no. 15 the spot at about 12:25 am and SI Amit Bhardwaj handed over the custody of accused Firoz to ASI Shiv Om and also handed over all the prepared documents to him and also produced the recovered articles from the accused Firoz. He further deposed that ASI Shiv Om prepared site plan at the instance of Sl Amit Bhardwaj and relieved him from the spot after recording his statement. He further deposed that IO ASI Shiv Om arrested the accused at about 3:10 am vide arrest memo Ex.PW4/B and recorded disclosure statement of the accused Ex.PW4/C. He further deposed that accused was also got medically examined in LBS Hospital and thereafter, kept in the lockup in PS Kalyanpuri. IO ASI Shiv Om also recorded his statement. He identify the accused before the Court and case property i.e. one sealed parcel Mark A sealed with the seal of KG FSL Delhi and on opening the same, one cloth pullanda having seal of PS Gazipur GP04 East Distt and GP-01 PS Gazipur East Distt, and containing remnants of sample ganja Ex.P1, one sealed parcel Mark B sealed with the seal of KG FSL Delhi and on opening the same, one cloth pullanda having seal of PS Gazipur GP04 East Distt and GP-01 PS Gazipur East Distt, and containing remnants of sample ganja Ex.P2, one sealed cloth parcel Mark C sealed with the seal of PS Gazipur GP04 East Distt and PS GAZIPUR GP-01 EAST DISTT. and on opening the same, it is found containing remaining ganja kept in polythene Ex.P3 colly and one envelope containing one mobile phone, cash of Rs. 350/- and original notice u/s 50 NPDS Act Ex.PW4/D.
13. PW9 ASI Satender Singh No. 324-Shahdara, PS Farash Bazar, Delhi deposed that on 28.03.2019, he was posted at HC at PS Gazipur and on that day, Ct. Neetu brought Rukka for registration of FIR and he registered FIR in present matter Ex. PW9/1 (OSR) and he made endorsement on Rukka Ex. PW9/2 Page no. 16 and also registered GD No. 68-A Ex. PW9/3 (OSR).
14. PW10 SI Shiv Om No. D-3445, PS Madhu Vihar, Delhi deposed on 28-29.03.2019, he was posted at PS Gazipur as ASI and at about 12:05 midnight, on instruction of SHO, the present case was marked to him for investigation and duty officer gave him copy of FIR Ex. PW9/1 and original Rukka Ex. PW10/L and thereafter, he alongwith Ct. Neetu reached the spot i.e. near Sulabh Sauchalaya, Gali No.6, Gazipur Dairy Farm, Delhi at about 12:25 am (midnight), where first IO SI Amit Bhardwaj and HC Budhpal and Ct. Sachin met him. He further deposed that accused Firoz apprehended by SI Amit Bhardwaj was handed over to him alongwith original seizure memo of recovered ganja from accused Firoz Ex. PW4/A, Memo Fard Adam Baramadagi Ex. PW3/A, two copies (original and carbon copy) of notice given to accused u/s 50 of NDPS Act Mark PW10/1, he put FIR number therein. He further deposed that a Samsung mobile phone and Rs. 350/- in cash were already recovered from accused Firoz as mentioned in Ex. PW3/A. He asked few public persons to join the investigation after telling them the facts of the case but nobody agreed to join the investigation and left the spot without disclosing their names and addresses. He further deposed that no notice was given to them due to paucity of time and thereafter, he prepared a site plan at the instance of first IO SI Amit Bhardwaj Ex.PW10/A and recorded his statement. He examined HC Budhpal and recorded his statement. He interrogated accused Firoz who confessed his involvement in the offence and arrested him vide arrest Memo Ex. PW4/B. He identified the accused before the Court. He recorded disclosure statement of accused Ex. PW4/C and further examined HC Budhpal and recorded his statement. He took the accused Firoz alongwith two constables to police Page no. 17 station Gazipur and informed about the progress and arrest of accused in present case to SHO. He deposited original copy of notice u/s 50 NDPS Act, carbon copy of Adam Baramdagi, Samsung phone and cash Rs. 350/- to MHC(M). He recorded the information of arrest and accused was got medically examined and thereafter, accused was kept in lock-up at PS Kalyan Puri. He examined Ct. Sachin and recorded his statement. He alongwith Ct. Pintu came to PS Gazipur and recorded his statement. He examined SHO PS Gazipur and recorded his statement. He recorded the statement of MHC(M) PS Gazipur. He complied the provision of Section 57 NDPS Act and prepared the report in this regard Ex PW1/C. He further deposed that during investigation, he recorded the statement of ACP. He further deposed that accused was sent to JC after producing him before the court. He further deposed that seized samples of two pulandas of ganja were sent to FSL through Ct. Praveen after getting released from Malkhana. He prepared chargesheet against the accused Firoz and submitted the same for trial.
15. PW11 SI Amit Bhardwaj, D4684 PCR central zone deposed that on 28.03.2019, he was posted as SI at PS Gazipur and on that day at about 07:00 PM, while he was present in his office, secret informer came and informed him that one person namely Firoz would come at Gazipur dairy farm jhuggi at about 8-9 PM, who was having ganja and could be apprehended with ganja if raid was conducted. He produced the secret informer before SHO, who formally inquired him regarding the information and thereafter, SHO telephonically informed ACP Madhu Vihar. He further deposed that ACP gave direction to conduct raid and thereafter, he prepared raiding party consisting of himself, HC Budhpal, Ct. Sachin, Ct. Neetu Page no. 18 and secret informer. He lodged DD no. 49 B in compliance of provision u/s 42 NDPS Act Ex. PW11/1. He made departure entry vide DD no. 50B Ex. PW11/2 and thereafter, they left for the spot at about 8 PM. He further deposed that they reached at the spot at about 08:10 PM and he requested 3-4 public persons to join the investigation but they all refused and he could not serve notice due to paucity of time and they took position at the spot and at about 08:40 PM, they saw one person coming form the site of Sauchalaya and secret informer identified him as Firoz and thereafter, secret informer left the spot. He further deposed that when they tried to apprehend the accused, accused threw the polythene possessed by him and they apprehended the accused. He checked the polythene and found it to be ganja and on measuring, the weight of ganja was found to be 1.4 Kg. He separated two samples of 250 gm each and converted the samples into pulanda and gave mark A and mark B and remaining case property also converted into pulanda and gave mark C. He appended seal i.e. PS Gazipur GP04 east district on the samples and case property. He also filled FSL form and seized the case property vide seizure memo Ex. PW4/A. He prepared notice u/s 50 NDPS and gave original copy to the accused and also explained him regarding his legal rights and carbon copy of notice u/s 50 NDPS is Ex. PW11/3. He further deposed that accused refused to avail his legal rights by mentioning his reply on the notice. He handed over the seal to Ct. Sachin and on his request, ACP Madhu Vihar came at the spot and at the direction of ACP, he conducted personal search of the accused but no contraband was found from his personal search vide memo Ex.PW3/A. He prepared Tehrir Ex. PW11/4 and handed over to Ct. Neetu for registration of FIR and also handed over the case property alongwith copy of seizure memo with direction to hand over the same to SHO, who left the spot Page no. 19 at about 10:20 PM. He further deposed that at about 12:20 AM, Ct. Neetu came at the spot alongwith ASI Shiv Om (2 nd IO). He handed over the custody of accused to ASI Shiv Om, who prepared site plan at his instance Ex. PW10/A and thereafter, he left the spot. He identify the accused before the Court. The production of case properties was dispensed with as same was already produced and identified during the testimony of PW-4.
16. Statement of HC Amit Kumar was recorded on 16.03.2021. He deposed that NBW issued against accused Firoj on 06.11.2019 was assigned to him but the same could not be executed as the accused was not found and was not having permanent residence. He exhibited the report in this regard as Ex.CW1/A. He further deposed that thereafter, process under Section 82 Cr.PC was issued against the accused Firoj on 17.12.2019 was also assigned to him for execution. He deposed that he executed the process under Section 82 Cr.PC at the address of accused. On 03.01.2020, he visited the address of the accused and recorded the statement of his neighbors Hasim which is Ex.CW1/B. He further deposed that he pasted the copy of the process on the main door of the house himself and made a loud proclamation. The copy of the process was pasted on the notice board of the Court on the same day. He furnished his report Ex.CW1/C bearing his signatures at point A. He further deposed that on 18.02.2020, process under Section 82 Cr.PC was again issued against the accused Firoj, which was also assigned to him. He deposed that he executed the process at the given address of the accused. He further deposed that on 06.03.2020, he visited the address of the accused and recorded the statement of his neighbors Saeed and Nand Kishore, which are Ex.CW1/D and Ex.CW1/E respectively. He also exhibited his report Ex.CW1/F Page no. 20 bearing his signatures at point A. STATEMENT OF ACCUSED under section 313 Cr.P.C.
17. After completion of prosecution witnesses, statement of accused persons under Section 313 Code of Criminal Procedure were recorded on 15.02.2025. Accused submitted that he was innocent and had been falsely implicated in the present case by planting illegal contraband upon him by the police due to various complaints filed by the local resident to the local police regarding sell of contraband in the locality, hence, the present false case was registered and case property was planted by the police in the police station. Accused did not prefer to lead defence evidence.
18. Ld. APP has argued that the prosecution witnesses have proved beyond reasonable doubt that the accused Firoj was apprehended with 1400 grams of Ganja (Cannabis) on 28.03.2019. It has been argued that the testimonies of the prosecution witnesses have remained unrebutted and uncontroverted. It is further submitted that testimonies of prosecution witnesses have proved beyond reasonable doubt that on 28.03.2019, accused Firoj was apprehended at about 8:40 pm near Sauchalya, Gali no. 6, Gazipur Jhuggi, Delhi PS Gazipur by SI Amit Bhardwaj and raiding team members and 1400 grams of Ganja (Cannabis) was recovered from the plastic polythene thrown by the accused on the other side of the road after seeing the police party. It is argued that all the mandatory provisions of the NDPS Act were duly complied with by the raiding party and mere non-drawing of sample before the Magistrate cannot be taken as a sole circumstance to warrant an inference against the recovery of contraband from the accused.
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19. Ld. counsel for the accused submitted that the accused has been falsely implicated in the present case. He submits that there are serious infirmities in the case of the prosecution. It is submitted that even though the purported recovery happened in a public place, there are no independent witnesses. It is further submitted that in the present case, upon seizure, the compliance of Section 52A of the NDPS Act was not made and the sampling procedure was not carried out before the Judicial Magistrate, which shows that accused is innocent and the entire proceedings were conducted at the police station by the investigating officers. It is argued that the accused has been falsely implicated as he did not accede to the illegal demand made by the police officials.
20. Arguments have been argued. Record perused.
21. In the present case, prosecution witnesses PW4, PW5, PW8 and PW11 have deposed that on 28.03.2019, a secret information was received by SI Amit Bhardwaj at about 07:00 PM that one person namely Firoz would come at Gazipur dairy farm jhuggi at about 8-9 PM for selling Ganja and could be apprehended with ganja if raid was conducted. PW11 produced the secret informer before SHO, who formally inquired from him regarding the information and thereafter, SHO telephonically informed ACP Madhu Vihar. PW11 further deposed that ACP gave direction to conduct raid and thereafter, he prepared raiding party consisting of himself, HC Budhpal, Ct. Sachin, Ct. Neetu and secret informer. PW11 lodged DD no. 49B. PW11 deposed that departure entry vide DD no. 50B Ex. PW11/2 was made and thereafter, they left for the spot at about 8 PM. PW11 further deposed that he alongwith members of raiding party Page no. 22 reached at the spot at about 08:10 PM. PW4, PW5, PW8 and PW11 have deposed that IO requested 3-4 public persons to join the investigation but they all refused and he could not serve notice upon them due to paucity of time. They have further deposed that they took position at the spot and at about 08:40 PM, they saw one person coming from the side of Sauchalaya and secret informer identified him as Firoz and thereafter, secret informer left the spot. They further deposed that when they tried to apprehend the accused, accused threw the polythene carried by him on the other side of the road and they apprehended the accused. PW11 checked the polythene and found it to be ganja and on measuring, the weight of ganja was found to be 1.4 Kg. These prosecution witnesses have further deposed that PW11 separated two samples of 250 gm each and converted the samples into pulanda and gave mark A and mark B and remaining case property was also converted into pulanda and was given mark C. PW11 appended seal of PS Gazipur GP04 East District on the samples and case property. PW11 also filled FSL form and seized the case property vide seizure memo Ex. PW4/A. These witnesses have further deposed that PW11 prepared notice u/s 50 NDPS and gave original copy to the accused and also explained him regarding his legal rights. They further deposed that accused refused to avail his legal rights by mentioning his reply on the carbon copy of notice u/s 50 NDPS Act. PW11 handed over the seal to Ct. Sachin. On the request of PW11, ACP Madhu Vihar came to the spot and at the direction of ACP, he conducted personal search of the accused, but no contraband was found from his personal search vide memo Ex.PW3/A. PW11 prepared Tehrir Ex. PW11/4 and handed over the same to Ct. Neetu for registration of FIR and also handed over the case property alongwith copy of seizure memo with direction to hand over the same to SHO, who left the Page no. 23 spot at about 10:20 PM. Witnesses have further deposed that at about 12:20 AM, Ct. Neetu came at the spot alongwith ASI Shiv Om (2nd IO). PW11 handed over the custody of accused to ASI Shiv Om, who prepared site plan at his instance Ex. PW10/A and thereafter, PW11 left the spot.
22. The evidence led by the prosecution shows that there are no public witnesses. It is established proposition of law vide catena of judgments viz. Dharampal Singhv. State of Punjab, (2010) 9 SCC 608; Raveen Kumar v. State of Himachal Pradesh, 2020 SCC, Jarnail Singh v. State of Punjab, (2011) 3 SCC 521; Sumit Tomar v. State of Punjab, (2013) 1 SCC 395 and Mukesh Singh v. State (NCT of Delhi), (2020) 10 SCC 120 OnLine SC 869 that the case of the prosecution cannot be rejected merely on account of the case being tethered on the testimonies of official witnesses and non-examination of independent witnesses would thus not be fatal to the prosecution's case. The testimonies of the official witnesses cannot be disregarded merely on account of them being police officials or due to absence of corroboration from independent witnesses and the prosecution may furnish an explanation to justify the non-joinder of public witnesses during the course of the trial.
23. The Hon'ble Apex Court In the case of Raveen Kumar v. State of Himachal Pradesh (supra), while dealing with the question of whether absence of independent witnesses is fatal to the prosecution's case observed that while reliable testimonies of police officials can form the basis of conviction, lack of corroboration from independent witnesses casts an additional duty on the Court to exercise a higher degree of caution while scrutinizing the testimonies of the official Page no. 24 witnesses. Thus, the Court has to see whether the evidence of prosecution witnesses has furnished an explanation to justify the non-joinder of public witnesses. Further the testimonies of the prosecution witnesses have to be scrutinized by exercising higher degree of caution.
24. The presumption of innocence until proven guilty is the cardinal principle of the criminal justice system. However, considering the adverse effect of offences under the NDPS Act on the security of the individual, society, economy and country, which not only endanger the society at present, but hollows out generations, legislature has provided in the form of Section 54 of the Act for a reversal burden of proof upon accused, contrary to normal rule of criminal jurisprudence for presumption of innocence unless proved guilty. Section 35 of the Act provides for presumption of culpable state of mind. The presumptions under Section 35 and Section 54 of the Act, however, does not dispense with the requirement of the prosecution to establish a prima facie case in the backdrop of sufficient, cogent and clear evidence with observance of mandatory provisions under sections 42, 50, 52 and 57 of the Act, where after the accused has to be called to account for his possession. The Hon'ble Supreme Court in Naresh Kumar Vs. State of Himachal Pradesh, MANU/SC/0908/2017 observed as under:
9. The presumption against the Accused of culpability Under Section 35, and Under Section 54 of the Act to explain possession satisfactorily, are rebuttable. It does not dispense with the obligation of the prosecution to prove the charge beyond all reasonable doubt. The presumptive provision with reverse burden of proof, does not sanction conviction on basis of preponderance of probability. Section 35 (2) provides that a fact can be said to have been proved if it is established beyond reasonable doubt and not on preponderance of probability. That the right of the Accused to a fair trial Page no. 25 could not be whittled down under the Act was considered in Noor Aga v. State of Punjab MANU/SC/2913/2008 : (2008) 16 SCC 417, observing:
58 ...An initial burden exists upon the prosecution and only when it stands satisfied, would the legal burden shift. Even then, the standard of proof required for the Accused to prove his innocence is not as high as that of the prosecution. Whereas the standard of proof required to prove the guilt of the Accused on the prosecution is "beyond all reasonable doubt"
but it is "preponderance of probability" on the accused. If the prosecution fails to prove the foundational facts so as to attract the rigours of Section 35 of the Act, the actus reus which is possession of contraband by the Accused cannot be said to have been established.
59. With a view to bring within its purview the requirements of Section 54 of the Act, element of possession of the contraband was essential so as to shift the burden on the accused.
The provisions being exceptions to the general rule, the generality thereof would continue to be operative, namely, the element of possession will have to be proved beyond reasonable doubt.
25. There is no documentary evidence on record to show that the proceedings under section 52 A NDPS, Act were undertaken. Prosecution witnesses are completely silent in this regard. Section 52 A of NDPS Act provides as under:
Section 52A of the NDPS Act "52A. Disposal of seized narcotic drugs and psychotropic substances.-- (1) The Central Government may, having regard to the hazardous nature, vulnerability to theft, substitution, constraint of proper storage space or any other relevant consideration, in respect of any narcotic drugs, psychotropic substances, controlled substances or conveyances, by notification in the Official Gazette, specify such narcotic drugs, psychotropic substances, controlled substances or conveyance or class of narcotic drugs, class of psychotropic substances, class of controlled substances or conveyances, which shall, as Page no. 26 soon as may be after their seizure, be disposed of by such officer and in such manner as that Government may, from time to time, determine after following the procedure hereinafter specified.
(2) Where any narcotic drugs, psychotropic substances, controlled substances or conveyances has been seized and forwarded to the officer-in-charge of the nearest police station or to the officer empowered under Section 53, the officer referred to in sub-section (1) shall prepare an inventory of such narcotic drugs, psychotropic substances, controlled substances or conveyances containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs, psychotropic substances, controlled substances or conveyances or the packing in which they are packed, country of origin and other particulars as the officer referred to in sub-section (1) may consider relevant to the identity of the narcotic drugs, psychotropic substances, controlled substances or conveyances in any proceedings under this Act and make an application, to any
26. A bare reading of section 52A NDPS, Act reveals that when any contraband/narcotic substance is seized and forwarded to the police or to the officer so mentioned under Section 53, the officer so referred to in sub-section (1) shall prepare its inventory with details and the description of the seized substance like quality, quantity, mode of packing, numbering and identifying marks and then make an application to any Magistrate for the purposes of certifying its correctness and for allowing to draw representative samples of such substances in the presence of the Magistrate and to certify the correctness of the list of samples so drawn. The testimony of prosecution witnesses shows that neither any inventory of contraband recovered from the accused persons were drawn nor the same was forwarded to the Magistrate concerned for the purpose of certifying the correctness of inventory, taking Page no. 27 relevant photographs in his presence and certifying them as true. Further the samples sent to the FSL were also not drawn in the presence of magistrate. The Hon'ble Supreme Court in Mangilal v. State of M.P., 2023 SCC OnLine SC 862 has observed as under:
6. The obvious reason behind this provision is to inject fair play in the process of investigation. Section 52A of the NDPS Act is a mandatory rule of evidence which requires the physical presence of a Magistrate followed by an order facilitating his approval either for certifying an inventory or for a photograph taken apart from list of samples drawn...
27. The Hon'ble Apex Court recently in Mohd. Khalid v. State of Telangana, (2024) 5 SCC 393 observed as under:
26. Admittedly, no proceedings under Section 52-A of the NDPS Act were undertaken by the investigating officer PW 5 for preparing an inventory and obtaining samples in the presence of the jurisdictional Magistrate. In this view of the matter, the FSL report (Ext. P-11) is nothing but a waste paper and cannot be read in evidence. The accused A-3 and A-4 were not arrested at the spot.
28. In the present case, PW11 has deposed that he drew two sample of 250 gram each from the contraband. The samples drawn from the contraband were converted into cloth pullindas marked as Mark A and Mark B sealed with the seal of PS GAZIPUR GP-04 EAST DISTT. and the remaining contraband was also converted into pullanda marked as Mark C and sealed with the seal of PS GAZIPUR GP-04 EAST DISTT. FSL Report dated 29.05.2019 shows Parcel A sealed with six seals of PS GAZIPUR GP-04 EAST DISTT. and two seals of PS GAZIPUR GP-01 EAST DISTT. Parcel B is shown to contain five seals of PS GAZIPUR GP-04 EAST DISTT. and two seals of PS GAZIPUR GP-01 EAST DISTT. PW2, SHO has deposed that Page no. 28 seal of PS GAZIPUR GP-01 EAST DISTT. was affixed on the parcels by him after the same were handed over alongwith the FSL Form and copy of seizure memo by Ct. Neetu. The testimonies of the prosecution witness shows that no sample was drawn in the presence of magistrate nor any inventory was prepared by the SHO. Further the testimonies of prosecution witnesses PW4, PW5, PW8 & PW11 and PW2 only refers to one seal of PS GAZIPUR GP-04 EAST DISTT. and PS GAZIPUR GP-01 EAST DISTT., whereas FSL report shows that both the samples A and B have more than one seal of PS GAZIPUR GP-04 EAST DISTT. and PS GAZIPUR GP-01 EAST DISTT., which raises doubt as to the entire procedure of seizure and sampling of the contraband. No seal handing over memo has been produced on record and PW4 during his cross- examination admitted that no seal handing over memo was prepared. The fact that the samples of the seized contraband were not drawn in the presence of the Magistrate and the inventory of the seized contraband was also not certified by the Magistrate has further shrouded the testimony of prosecution witnesses under doubt. The Hon'ble Apex Court in Yusuf v. State, 2023 SCC OnLine SC 1328, while discussing the mandatory nature of Section 52A of the NDPS Act observed as under:
15. In Mohanlal's case, the apex court while dealing with Section 52A of the NDPS Act clearly laid down that it is manifest from the said provision that upon seizure of the contraband, it has to be forwarded either to the officer-in-
charge of the nearest police station or to the officer empowered under Section 53 who is obliged to prepare an inventory of the seized contraband and then to make an application to the Magistrate for the purposes of getting its correctness certified. It has been further laid down that the samples drawn in the presence of the Magistrate and the list thereof on being certified alone would constitute primary evidence for the purposes of the trial.
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16. In the absence of any material on record to establish that the samples of the seized contraband were drawn in the presence of the Magistrate and that the inventory of the seized contraband was duly certified by the Magistrate, it is apparent that the said seized contraband and the samples drawn therefrom would not be a valid piece of primary evidence in the trial. Once there is no primary evidence available, the trial as a whole stand vitiated.
29. In the present case, the samples drawn by PW11 on the spot at time of recovery, were sent to FSL and no samples were drawn before the Ld. Magistrate therefore in the absence of sample drawn before Ld. Magistrate and absence of Inventory of seized contraband duly certified by Ld. Magistrate as per Section 52A NDPS Act, it is apparent that the seized contraband and the sample drawn are not a primary evidence in trial, accordingly, in the absence of primary evidence with regard to samples, the whole trial stands vitiated in view of settled legal proposition as discussed by the Hon'ble Apex Court in Yusuf Vs. State, Supra.
30. Further the site plan Ex.PW10/A marks the place from where the accused was apprehended alongwith ganja as Mark A, whereas the case of prosecution is that accused has thrown the plastic polythene on the other side of the road on seeing the police party. There is no mention of the place in Ex.PW10/A from where the plastic polythene thrown by the accused was recovered. The case prosecution fails to meet the standard of 'beyond reasonable doubt'. Accordingly, the prosecution has failed to prove the charge under section 20 of the NDPS Act against accused Accused Firoj beyond reasonable doubt.
31. During pendency of the trial, accused Firoj stopped appearing before the Court and process under Section 82 Page no. 30 Cr.P.C. was issued against the accused. Statement of process server, who had executed process under Section 82 Cr.P.C. was recorded and accused was declared proclaimed offender vide order dated 23.11.2021. Statement of HC Amit Kumar was recorded on 16.03.2021. He deposed that NBW issued against accused Firoj on 06.11.2019 was assigned to him but the same could not be executed as the accused was not found and was not having permanent residence. He exhibited the report in this regard as Ex.CW1/A. He further deposed that thereafter, process under Section 82 Cr.PC was issued against the accused Firoj on 17.12.2019 was also assigned to him for execution. He deposed that he executed the process under Section 82 Cr.PC at the address of accused. On 03.01.2020, he visited the address of the accused and recorded the statement of his neighbors Hasim which is Ex.CW1/B. He further deposed that he pasted the copy of the process on the main door of the house himself and made a loud proclamation. The copy of the process was pasted on the notice board of the Court on the same day. He furnished his report Ex.CW1/C bearing his signatures at point A. He further deposed that on 18.02.2020, process under Section 82 Cr.PC was again issued against the accused Firoj, which was also assigned to him. He deposed that he executed the process at the given address of the accused. He further deposed that on 06.03.2020, he visited the address of the accused and recorded the statement of his neighbors Saeed and Nand Kishore, which are Ex.CW1/D and Ex.CW1/E respectively. He also exhibited his report Ex.CW1/F bearing his signatures at point A.
32. The process issued under section 82 Cr.P.C. was duly executed against accused Firoz at his last known address i.e. Jhuggi No. 488, Gali No. 6, Gazipur Dairy Farm, Delhi. The Page no. 31 statement of neighbours of the accused was also recorded by the process server. Accused has chosen not to lead any evidence and furnished no explanation for non-appearance before the court despite execution of process under section 82 Cr.P.C.
33. Accused was declared proclaimed offender by the Ld. Predecessor of this Court vide order dated 23.11.2021. The sanctity of the satisfaction recorded by the court regarding the due publication of the process under section 82 Cr. PC is recognised by sub section 3 of section 82 itself. This sub section reads as under:
82(3) A statement in writing by the Court issuing the proclamation to the effect that the proclamation was duly published on a specified day, in the manner specified in clause (I) of subsection (2), shall be conclusive evidence that the requirements of this section have been complied with, and that the proclamation was published on such day.
34. Thus, a statement from the court which has issued a proclamation under section 82 Cr. PC is mandatorily required, as apparent from the use of the word "shall" in section 82 (3) Cr. PC, to be treated as conclusive evidence regarding the requirements of section 82 Cr. PC being complied with. This provision elevates the statement of a court in writing under section 82(3) Cr. PC to be not only in the nature of evidence but also conclusive evidence regarding compliance with the mandate of section 82 Cr. PC.
35. The accused having been admitted to bail, his failure to appear upon the proclamation under section 82 Cr.PC and his arrest only on 01.01.2022 establish beyond any doubt that there Page no. 32 was a conscious effort on the part of the accused to avoid court proceedings and abscond pending trial. The prosecution had little effort to make in the present matter as unlike instances of accused persons absconding prior to the filing of the chargesheet and the necessary doubts upon efforts of the police to trace them, the present accused absconded during trial and that too after multiple witnesses had been examined. His remaining at large was thus a deliberate flouting of the opportunity granted by the court.
36. Accordingly Accused is found guilty of the offence under section 174A IPC.
37. In view of the abovesaid discussion, Accused Firoj is acquitted of the offence under Section 20 of the NDPS Act. Accused is convicted for the offence under section 174A IPC. Announced in the open court on this 28th Day of March, 2025.
ALOK Digitally signed by
ALOK SHUKLA
SHUKLA
(Alok Shukla)
Date: 2025.03.28
16:47:24 +0530
Additional Session Judge-2/
Special Judge (Narcotic Drugs and Psychotropic
Substances)
East/Karkardooma/Delhi.
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