Delhi District Court
State vs Mohd. Hasin @ Pahalwan on 12 July, 2024
IN THE COURT OF SPECIAL JUDGE (NDPS),
SHAHDARA, KARKARDOOMA COURTS, DELHI
STATE VS. MOHD. HASIN @ PAHALWAN
Session Case No. : 1023/2016
CNR No. : DLSH01-006340-2016
FIR No. : 130/2016
U/s : 21 of the NDPS Act, 1985
PS : Crime Branch
In the matter of :-
State
Versus
Mohd. Hasin @ Pahalwan
S/o Mohd. Nanhe,
R/o House No. 447, Gali No. 19,
Khajuri Khas, Delhi.
Also at: -
VPO Aliganj, PS Aliganj,
District Bareily, Uttar Pradesh.
.......... Accused
Date of institution : 17.09.2016
Date when judgment reserved : 11.07.2024
Date of Judgment : 12.07.2024
JUDGMENT:-
1. This is a case in which accused Mohd. Hasin @ Pahalwan has faced trial for commission of offence punishable under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short "the NDPS SC No. 1023/2016 Page 1 of 59 State vs. Mohd. Hasin @ Pahalwan Judgment dt.12.07.2024 Act") on the allegation that he was found in possession of contraband i.e. 110 grams heroin without any permit or licence/authority in contravention of provisions of the NDPS Act.
2. The case of the prosecution as borne out from the charge-sheet is as under: -
2.1. On 20.07.2016, at around 11.15 am, a secret informer came in the Office of Narcotics Cell and informed SI Sanjay Neolia that one person, namely, Mohd. Hasin @ Pahalwan, a resident of Bhajanpura, Delhi who was indulged in supply of heroin in Delhi after procuring the same from Bareily, UP would come at exit gate, Patparganj Industrial Area, near Metro Pillar no.
P-201 between 1.00 to 2.00 pm for supplying a big consignment of heroin to someone and if raided, he could be apprehended while supplying heroin.
2.2. SI Sanjay Neolia having satisfied with the information intimated the same to Inspector Vijender Singh at about 11.30 am and produced the secret informer before him. After satisfying himself with the information, Inspector Vijender Singh communicated the same to Sh. Ranbir Singh Dahiya, ACP/N&CP, Narcotics Cell who directed to conduct raid immediately.
2.3. SI Sanjay Neolia made DD entry vide DD No. 10 at around 11.45 am in duplicate regarding the secret information and produced its original before Inspector Vijender Singh for the proceedings under Section 42 of SC No. 1023/2016 Page 2 of 59 State vs. Mohd. Hasin @ Pahalwan Judgment dt.12.07.2024 the NDPS Act.
2.4. Pursuant to the directions of Inspector Vijender Singh, SI Sanjay Neolia prepared a raiding party comprising himself, HC Ravinder and Ct. Samrat and then he took IO kit, field testing kit and electronic weighing machine with him and, thereafter, the raiding party along with the secret informer left the Narcotic Office for the spot at around 12.00 noon in a private car no. DL-2-CAL- 2589 Wagon R vide DD No. 12.
2.5. The raiding party reached at the spot i.e. at Patparganj Industrial area exit gate, near Metro Pillar No. P-201 at around 12.50 pm. On the way, Sanjay Neolia asked 6 passersby at Shanti Van red light and 6 passersby at Hasan Pur Depot red light to join the raiding party but they refused to join the raiding party stating their reasonable causes and left without disclosing their names and addresses.
2.6. SI Sanjay Neolia parked the above said private vehicle inside the exit gate of Patparganj Industrial Area and at around 12.55, he briefed the raiding team members and they took their position. At around 1.10 pm, one person was seen coming on foot from the footover bridge, ISBT, Anand Vihar side towards the exit gate of Patparganj Industrial Area, Metro Pillar No. P-201 who was identified by the secret informer as Mohd. Hasin @ Pahalwan from a distance of 25 meters and, thereafter, the secret informer left the spot.
SC No. 1023/2016 Page 3 of 59State vs. Mohd. Hasin @ Pahalwan Judgment dt.12.07.2024 2.7. The said person stopped near metro pillar no. 201, Patparganj Industrial Area exit gate and started waiting there for someone and after 10 minutes when he started moving back towards Anand Vihar, ISBT side, he was apprehended by SI Sanjay Neolia with the help of other raiding team members and his name was revealed as 'Mohd. Hasin @ Pahalwan' (the accused herein).
2.8. SI Sanjay Neolia introduced the raiding party to the accused and informed him that the raiding party was having secret information that he possessed heroin to be supplied to someone and hence his personal search was required to be conducted. In the meantime, some public persons had gathered at the spot who were asked to join the proceedings but none agreed.
2.9. SI Sanjay Neolia apprised the accused about his legal rights to be searched in presence of Gazetted Officer or Magistrate and he was also offered to take search of the raiding party & the vehicle, but the accused refused to avail his legal rights. In this regard, SI Sanjay Neolia prepared a notice under Section 50 of the NDPS Act in duplicate contents of which were read over and explained to the accused and then original notice was given to the accused and he recorded his refusal in his handwriting on the carbon copy of the notice.
2.10. Thereafter, SI Sanjay Neolia conducted cursory search of the accused and one transparent polythene bag (vajani) was recovered from the right pocket of wearing SC No. 1023/2016 Page 4 of 59 State vs. Mohd. Hasin @ Pahalwan Judgment dt.12.07.2024 pants of the accused which was tied with rubber band and contained some matmella colour powder and on checking in the field testing kit it was found to be heroin.
2.11. SI Sanjay Neolia weighed the entire recovered contraband along with the polythene bag on electronic machine and it was found 110 grams, out of which two samples of 5-5 grams each were taken out and the same were kept in two transparent polythene bags and the same were converted into two pullandas which were given mark A and B. The remaining heroin alongwith the polythene was also converted into a white cloth pullanda and the said pullanda was marked as C and all the pullandas were sealed with the seal of '7A PS/NB, DELHI'.
2.12. SI Sanjay Neolia also filled up the FSL form at the spot and affixed his seal on the same. All the sealed pullandas along with FSL form were taken into police possession and the seal after use was handed over to HC Ravinder.
2.13. Thereafter, SI Sanjay Neolia prepared tehrir and handed over the same to Ct. Samrat along with all the sealed pullandas, FSL Form and copy of seizure memo with a direction to hand over the tehrir to the Duty Officer for registration of case and other articles to the SHO PS Crime Branch for compliance of proceedings under Section 55 of the NDPS Act. Accordingly, Ct. Samrat left the spot for the police station Crime Branch at around 4.30 pm in the same private vehicle bearing No. DL-2 SC No. 1023/2016 Page 5 of 59 State vs. Mohd. Hasin @ Pahalwan Judgment dt.12.07.2024 CAL-2859.
2.14. After reaching the police station, Ct. Samrat handed over the tehrir to ASI Ram Avtar, the Duty Officer at around 5.40 pm and other articles to the SHO PS Crime Branch at around 5.45 pm who put FIR number on all the articles and affixed his seal 'SK' on the sealed pullandas & FSL form. Thereafter, he handed over all the articles to HC Jag Narain, the MHC(M) to be deposited in the malkhana and made DD entry no.15 in roznamcha in compliance of Section 55 of the NDPS Act.
2.15. After registration of FIR, the Duty Officer handed over original tehrir and copy of FIR to Ct. Samrat to be handed over to SI Dinesh Kumar who was marked further investigation of the case. SI Dinesh Kumar accordingly departed for the spot in aforesaid private vehicle at about 8.40 am vide DD No. 23.
2.16. ASI Dinesh Kumar reached at the spot where he was handed over documents related to the case and custody of accused Mohd. Hasin @ Pahalwan by SI Sanjay Neolia. He prepared site plan at the instance of SI Sanjay Neolia and recorded statement of witnesses under Section 161 Cr.P.C. He arrested the accused at around 11.30 pm after interrogation. He also conducted personal search of the accused and recorded disclosure statement of the accused.
2.17. SI Dinesh Kumar along with other police staff and the accused left the spot and reached at PS Crime Branch SC No. 1023/2016 Page 6 of 59 State vs. Mohd. Hasin @ Pahalwan Judgment dt.12.07.2024 and handed over the personal search articles of the accused to MHC(M). Thereafter, SI Dinesh Kumar along with the other police staff and the accused proceeded to Narcotics Cell and reached there at around 3.30 am where accused Mohd. Hasin @ Pahalwan was produced before Inspector Vijender Singh who made enquiries from the accused and found his arrest justified.
2.18. SI Sanjay Neolia prepared special report under Section 57 of the NDPS Act regarding recovery of heroin and its seizure and SI Dinesh Kumar prepared special report under Section 57 of the NDPS Act regarding arrest of accused and they both produced the reports before Inspector Vijender Singh who forwarded the same to the senior officers.
2.19. Thereafter, the accused was produced in the Court of Ld. ASJ and his 03 days police custody remand was obtained. SI Dinesh Kumar along with the accused and other police staff reached at Kasba Anwla, PS Anwla, Bareily, Uttar Pradesh in search of one Ram Prasad Maurya who supplied the heroin to accused as per his disclosure statement but said Ram Prasad Maurya could not be traced out. His house was searched but no contraband was recovered.
2.20. Thereafter, SI Dinesh Kumar along with other police staff and the accused came back to the Narcotics office and the accused was produced before the Court from where he was sent to judicial custody.
SC No. 1023/2016 Page 7 of 59State vs. Mohd. Hasin @ Pahalwan Judgment dt.12.07.2024 2.21. On 22.07.2016, sample of the present case were deposited at FSL, Rohini through for chemical examination.
3. Pending FSL result, charge-sheet was prepared by SI Dinesh Kumar against the accused under Section 21 of the NDPS Act and filed before the court on 17.09.2016.
4. FSL result dated 29.09.2016 was filed on record as per which as per which Exhibit A was found to contain 'Diacetylmorphine', '6-Monacetylmorphine', 'Phenobarbital', 'Acetylcodeine', 'Caffeine' & 'Alprazolam' and it was found to contain 'Diacetylmorphine' 15.3% & 'Phenobarbital' 9.1%.
5. After compliance of Section 207 Cr.P.C., charge under Section 21 of the NDPS Act was framed against the accused on 05.11.2016 to which he pleaded not guilty and claimed trial.
6. In order to prove its case, the prosecution has examined 11 witnesses. Brief outline of the testimonies of the prosecution witnesses is discussed as under:-
7. PW-1 is ASI Ravinder Kumar, the then Head Constable who was one of the members of the raiding party which apprehended the accused along with contraband. He was also part of the investigation carried out by 2nd IO SI Dinesh Kumar. He deposed more or less on the similar lines as deposed by SI Sanjay Neolia, the 1 st IO and SI Dinesh Kumar, the 2nd IO whose testimonies shall be discussed at the later stage of the judgment.
SC No. 1023/2016 Page 8 of 59State vs. Mohd. Hasin @ Pahalwan Judgment dt.12.07.2024
8. During evidence of this witness, the entire case property which includes the contraband recovered from the accused as well as the sample which was received back from the FSL was brought on record. The witness has identified the same as part of the contraband recovered from the possession of the accused. The documents as well as case property which were brought on record by this witness are mentioned as under along with their identification marks:-
i. Carbon copy of notice under Section 50 of the NDPS Act as Ex.PW1/A;
ii. Seizure memo of the case property as Ex. PW1/B;
iii. Arrest memo of the accused as Ex. PW1/B;
iv. Personal search memo of the accused as Ex.PW1/C;
v. Disclosure statement of the accused as Ex.PW1/D;
vi. Original notice under Section 50 of the NDPS Act served upon the accused and recovered from the personal search of the accused which was produced by MHC(M) as Ex.PW1/E; vii. Sample pullanda Mark A which was sent to FSL and produced by MHC(M) in a sealed envelope sealed with the seal of FSL as Ex.PW1/Article A (colly); viii. Two cloth pullandas Mark B and C produced by MHC(M) with the seals of '7A PS/NB DELHI and 'SK' as Ex. PW-1/Article-B (Colly) and PW-1/Article-C (Colly); ix. Three currency notes of Rs. 100/- denomination and two currency notes of Rs. 10/- denomination recovered from the personal search of the accused which were produced by MHC(M) as Ex.P-1 (colly).
9. PW-2 is ASI Jagnarain, the then MHC(M) at PS Crime Branch who was handed over three sealed pullandas Mark A, B and C sealed with the seals of '7A SC No. 1023/2016 Page 9 of 59 State vs. Mohd. Hasin @ Pahalwan Judgment dt.12.07.2024 PS NB DELHI' and 'SK' along with FSL form bearing the same seals and carbon copy of seizure memo by Inspector Sunil Kumar, the then SHO, PS Crime Branch on 20.07.2016, which he deposited in the malkhana vide entry no. 2513 in register no. 19, copy of which is Ex.PW2/A. He also deposited personal search articles of the accused handed over to him by SI Dinesh Kumar on 21.07.2016 in the malkhana and he made entry in this regard in register no. 19 at Serial No. 2514, copy of which is Ex.PW2/B. On 22.07.2016, on the directions of SHO, this witness handed over one sealed pullanda Mark A along with FSL form to HC Abdul Hakim to deposit the same at FSL Rohni vide RC No. 285/21/16, copy of which is Ex.PW2/C and made entry to the said effect at point X to X1 on Ex.PW2/A. He also received the acknowledgment of case acceptance issued by FSL Rohini which was handed over to him by HC Abdul Hakim after depositing the pullanda at FSL, Rohini, copy of which is Ex.PW2/D. On 18.10.2016, Ct. Sunny deposited FSL result to this witness which he handed over to the IO and made entry in this regard from point Y to Y1 on Ex.PW2/A.
10. PW-3 is Abdul Hakim who on the instructions of the IO, collected one sealed pullanda Mark A sealed with the seals of '7A PS NB DELHI' and 'SK' along with other relevant documents from the malkhana on 22.07.2016 and deposited the same at FSL, Rohini vide road certificate no.285/21 dated 22.07.2016. He after depositing the SC No. 1023/2016 Page 10 of 59 State vs. Mohd. Hasin @ Pahalwan Judgment dt.12.07.2024 exhibit at FSL Rohini handed over the acknowledgment and RC to the MHC(M).
11. PW-4 is ASI Ram Avtar, who was the Duty Officer in PS Crime Branch on 20.07.2016 and his duty hours were from 8.00 am to 8.00 pm. He got registered the FIR in the present case on the basis of rukka through computer, computerized copy of which is Ex.PW4/A and made endorsement Ex. PW4/B on the rukka. After registration of FIR, he handed over computer copy of FIR along with original rukka to Ct. Samrat to be handed to SI Dinesh Kumar for further investigation. He made relevant entries in the DD register regarding registration of FIR vide DD nos. 14A & 16A, copies of which are Ex.PW4/C & Ex.PW4/D and also issued certificate under Section 65B of the Evidence Act which is Ex.PW4/E.
12. PW-5 is Inspector Sunil Kumar, the then SHO, PS Crime Branch. He was handed over three sealed pullandas sealed with the seal of '7A/PSNB, DELHI' marked as A, B and C along with FSL form duly stamped with the above mentioned seal and carbon copy of seizure memo by Ct. Samrat on 20.07.2016. He after putting his counter seal 'VS' on the three pullandas and the FSL form and details of FIR on the three pullands and carbon copy of seizure memo got deposited the same in the malkhana through MHC(M) HC Jagnarain and lodged DD no. 15 in this regard, copy of which is Ex.PW5/A.
13. PW-6 is HC Samrat who was part of the raiding party. He deposed more or less on the similar lines as SC No. 1023/2016 Page 11 of 59 State vs. Mohd. Hasin @ Pahalwan Judgment dt.12.07.2024 deposed by PW-7 SI Sanjay Neolia, the 1 st IO of the case. During his evidence, this witness has identified the case property i.e. the heroin recovered from the possession of the accused which was converted into three pullandas Mark A, B & C. He identified the samples which were separated by the IO from the contraband recovered from the possession of the accused contained in pullandas Mark A & B as Ex.P-2 & P-3 and the remaining contraband contained in pullanda Mark C as Ex. P-1.
14. PW-7 Inspector Sanjay Neolia (the then Sub Inspector) is the 1st Investigating Officer (IO) of the case. He is the head of the raiding party which apprehended the accused and recovered the contraband from him. This witness more or less deposed as per the averments made in the charge-sheet. Thus, the detailed account of his testimony is not being repeated here for the sake of brevity and shall be discussed at the later and appropriate stage of the judgment.
15. During his deposition, this witness has produced on record copy of DD No. 10 A lodged by him regarding secret information as Ex.PW7/A, copy of departure entry made by him vide DD No. 12 as Ex. PW7/B, rukka prepared by him as Ex. PW7/C, site plan prepared by the the 2nd IO at his instance as Ex. PW7/D and copy of report prepared by him under Section 57 of the NDPS Act as Ex. PW7/E. He has also identified the case property i.e. the heroin recovered from the possession of the accused which was converted into three pullandas Mark A, B & C. SC No. 1023/2016 Page 12 of 59 State vs. Mohd. Hasin @ Pahalwan Judgment dt.12.07.2024 He identified the samples taken by him out of the contraband recovered from the possession of the accused contained in pullandas Mark A & B as Ex.P-2 & P-3 and the remaining contraband contained in pullanda Mark C as Ex. P-1.
16. PW-8 is Retired ACP R.S. Dahiya who was posted as ACP, Narcotics, Crime Branch, Delhi on 20.07.2016. He was informed about the secret information by Inspector Vijender Singh who personally visited his office on 20.07.2016. On the same day, DD No. 10 Ex. PW7/A was produced before him which he signed after going through it. On 21.07.2016, two reports under Section 57 NDPS Act, one regarding recovery of heroin and another regarding arrest of the accused were produced before him which he signed after perusing them.
17. PW-9 Ct. Amit Kumar posted at ANTF Crime Branch, Old Kotwali, Daryaganj, Delhi has produced on record the original information under Section 42 of the NDPS Act received in their office on 20.07.2016 vide diary no. 1176 as Ex. PW7/A. He also placed on record two other reports under Section 57 of the NDPS Act received in their office vide diary nos. 1789 and 1790 dated 21.07.2016, one prepared by SI Sanjay Neolia dated 21.07.2016 regarding seizure of contraband which is Ex. PW7/E and the other prepared by SI Dinesh Kumar regarding arrest of the accused dated 21.07.2016 which is Ex.PW9/A.
18. PW-10 is Inspector Dinesh Kumar, (the then SI), the SC No. 1023/2016 Page 13 of 59 State vs. Mohd. Hasin @ Pahalwan Judgment dt.12.07.2024 2nd IO of the case who carried out the investigation in the present case after registration of FIR. He after receiving tehrir and copy of FIR went to the spot where SI Sanjay handed over the custody of accused Mohd. Hasin @ Pahalwan to him and also handed over documents related to the present matter. He prepared site plan Ex.PW7/D at the instance of SI Sanjay Neolia, interrogated the accused, arrested him vide arrest memo Ex.PW1/B. He also conducted personal search of the accused vide personal search memo Ex.PW1/C during which original notice under Section 50 of the NDPS Act and Rs. 320/- were recovered. He recorded the disclosure statement of the accused which is Ex. PW1/D. Thereafter, he along with HC Ravinder, SI Vinod and accused came to PS Crime Branch where he deposited personal search articles of the accused in the malkhana MHC(M). After that, he along SI Sanjay Neolia, HC Ravinder and the accused left the spot and reached at PS Crime Branch where he deposited the personal search articles of the accused in malkhana and thereafter they went to Narcotic Cell where this witness produced the accused before Inspector Vijender. During further investigation, he recorded statement of witnesses, got the exhibit deposited at FSL, Rohini and prepared a report under Section 57 of the NDPS Act Ex.PW9/A. After completion of investigation and obtaining the FSL result, he prepared the charge-sheet against the accused and filed the same in the Court.
19. PW-11 is Inspector Vijender Singh before whom the SC No. 1023/2016 Page 14 of 59 State vs. Mohd. Hasin @ Pahalwan Judgment dt.12.07.2024 secret informer was produced by the 1st IO SI Sanjay Neolia on 20.07.2016 and who onward transmitted the information to the ACP concerned. He also forwarded DD No. 10 dated 20.07.2016 lodged by SI Sanjay Neolia regarding secret information, carbon copy of which is Ex.PW7/A produced before him by SI Sanjay Neolia to ACP, N&CP. On 31.07.2016 at 3.30 am, SI Dinesh had produced the accused before him and after interrogation, he found the arrest of the accused justified.
20. After closing of prosecution evidence, statement of the accused under Section 313 Cr.P.C. was recorded wherein he pleaded his innocence and claimed false implication in the present case. He chose not to lead evidence in his defence.
21. I have heard the Ld. Additional Public Prosecutor and the Ld. Counsel for the accused and perused the record.
22. During course of the arguments, Ld. Addl. Public Prosecutor submitted that the raiding team members i.e. PW-1 ASI Ravinder, PW-6 HC Samrat and PW-7 Inspector (the then SI) Sanjay Neola, the 1st IO as well as the 2nd IO i.e. PW-10 Inspector (the then SI) Dinesh Kumar have fully supported the prosecution case regarding recovery of contraband from the possession of the accused and his arrest in the present case. He further submitted that necessary compliance of Sections 42, 50, 55 and 57 of the NDPS Act has been properly made in the present case which is duly proved with the evidence of SC No. 1023/2016 Page 15 of 59 State vs. Mohd. Hasin @ Pahalwan Judgment dt.12.07.2024 prosecution witnesses. He further submitted that the prosecution has been able to prove its case against the accused beyond reasonable doubt through the testimonies of the prosecution witnesses. Thus, he prayed that the accused may be convicted for the offence he is charged with.
23. Per contra, Ld. Counsel for the accused submitted that the accused is innocent and he has been falsely implicated in the present case. He contended that the accused was detained by the police on 19.07.2016 and later on false case of recovery of contraband has been foisted upon him on 20.07.2016. He further submitted that no public witness has been joined during the entire investigation and the entire case rests solely on the testimony of police officials which makes the story of the prosecution doubtful. He further submitted that none of the recovery witnesses could tell the make of the weighing machine allegedly used in the recovery proceedings and even the street light available at the spot as stated by both the IOs in their cross-examination has not been shown in the site plan and these flaws also make the story of the prosecution doubtful. He further submitted that no notice under Section 50 of the NDPS Act was served upon the accused. He contended that signatures of the accused were obtained by the police on some blank documents which were later on converted into various incriminating documents against the accused including notice under Section 50 of the NDPS Act. Ld. Defence Counsel SC No. 1023/2016 Page 16 of 59 State vs. Mohd. Hasin @ Pahalwan Judgment dt.12.07.2024 further submitted that there was also no compliance of Section 52A of the NDPS Act as the samples were not drawn by the IO in the presence of Magistrate. He contended that the prosecution has failed to prove its case against the accused beyond reasonable doubt and hence the accused is liable to be acquitted.
24. In view of the rival submissions made by the Ld. Counsel for the parties, let us examine as to whether mandatory provisions of the NDPS Act have been complied with or not in the present case.
DISCUSSION ON THE POINT OF COMPLIANCE OF SECTION 42 OF THE NDPS ACT
25. As per settled provision of Section 42 of the Act, the concerned police officer, who has received the secret information, is required to inform his immediate senior officer about the secret information within 72 hours of its receipt.
26. In this regard, PW-7 Inspector Sanjay Neolia, who is the 1st IO of the case and had received the secret information, deposed that on 20.07.2016, he was posted as SI in Narcotic Cell, Crime Branch, Kotwali, Darya Ganj and on that day, at about 11.15 am, a secret informer came to his office and told him that accused Hasin @ Pahalwan, resident of Bhajanpura who was involved in supply of heroin in Delhi from Bareily would come at exit gate, Patparganj Industrial Area, near Metro Pillar No. P-201 between 1.00-2.00 pm and could be apprehended while SC No. 1023/2016 Page 17 of 59 State vs. Mohd. Hasin @ Pahalwan Judgment dt.12.07.2024 supplying heroin if raided. He further deposed that he shared the said information to Inspector Vijender and also produced the informer before him in the office who after satisfying with the information shared the information to ACP Sh. Ranvir Singh Dahiya who instructed Inspector Vijender to take action as per law and Inspector Vijender instructed him to take action as per law. Thereafter, he lodged the information at about 11.45 am vide DD No. 10 which is Ex.PW7/A.
27. In his cross-examination, this witness stated that the secret informer did not tell the name of father of the accused. He further stated that the secret informer did not tell the complete residential address and also about quantity of contraband, the accused would be carrying on that day. He further stated that he was alone when the secret informer came to his office. He further stated that he went to the office of Inspector Vijender along with informer and shared the information. He further categorically stated that the information was given to ACP Ranvir Sigh Dahiya by Inspector Vijender Singh.
28. The aforesaid cross-examination of the witness indicates that the the Ld. Defence Counsel could not extract anything material to assail his version about receipt of the secret information and passing on the information to his immediate senior officers within prescribed time. Though the parentage and complete address of the accused was not told by the secret informer to the witness and the quantity of contraband to be SC No. 1023/2016 Page 18 of 59 State vs. Mohd. Hasin @ Pahalwan Judgment dt.12.07.2024 brought by the accused was also not disclosed to SI Sanjay Neolia, the 1st IO, but on this count, apprehension of the accused from the spot cannot be doubted as the accused was apprehended on the identification of the secret informer.
29. The testimony of PW-7 Inspector Sanjay Neolia has been duly supported by PW-11 Inspector Vijender Singh who deposed that on 20.07.2016, he was posted as Inspector, Narcotic Cell, Crime Branch, Old Kotwali, Delhi and on that day, at about 11.30 am, SI Sanjay Neolia along with secret informer came in his office and told him that one person, namely, Hasin @ Pahalwan, resident of Bareily, UP who used to supply heroin in the area of Delhi would come in the Patparganj Industrial Area exit gate near metro pillar no. 201 in between 1.00 - 2.00 pm for the purpose of supplying the heroin. He further deposed that he verified the said fact from the secret informer and confirmed the same. Thereafter, on satisfying the said information, he conveyed this message to ACP, Narcotic Cell Sh. Ranvir Singh Dahiya and he directed him to take the legal action as per law against said Hasin @ Pahalwan. He further deposed that the said information was lodged by SI Sanjay Neolia vide DD No. 10 at about 11.45 am and submitted copy of the same to him in compliance of Section 42 of the NDPS Act which he forwarded to ACP Ranvir Singh Dahiya.
30. The Ld. Defence Counsel could not impeach the aforesaid deposition of PW-11 Inspector Vijender Singh SC No. 1023/2016 Page 19 of 59 State vs. Mohd. Hasin @ Pahalwan Judgment dt.12.07.2024 during his cross-examination. The witness categorically stated that he conveyed the information to ACP Ranvir Singh Dahiya regarding accused Hasin @ Pahalwan while visiting his office.
31. In order to prove that the secret information was passed onto the ACP concerned within 72 hours of its receipt, the prosecution has also examined the then ACP, N & CP, Crime Branch, Delhi, namely, Sh. R.S. Dahiya as PW-8 who has very well corroborated the testimony of PW-11 Inspector Vijender Singh. He deposed that on 20.07.2016, at about 10.35 am, Inspector Vijender Singh came to his office and informed him that SI Sanjay Neolia had received a secret information regarding one Mohd. Hasin @ Pahalwan, resident of Bhajanpura who used to supply heroin by procuring the same from Bareily UP and said Mohd. Hasin would come on that day in between 1.00 pm to 2.00 pm Patpartganj Industrial area exit gate, near metro pillar no. P-20 and he could be apprehended if raid was conducted. He further deposed that he directed Inspector Vijender Singh to proceed immediately as per law. He further deposed that on the same day, Reader had produced DD No. 10 Ex. PW7/A written by SI Sanjay Neolia and forwarded by Inspector Vijender before him and he put his signature on the said DD entry.
32. This witness was not cross-examined at all by the Ld. Counsel for the accused and his aforesaid testimony has gone unrebutted and uncontroverted.
SC No. 1023/2016 Page 20 of 59State vs. Mohd. Hasin @ Pahalwan Judgment dt.12.07.2024
33. From the testimonies of aforesaid witnesses, it is established on record that a secret information about the movement of accused was received by PW-7 SI Sanjay Neolia at Office of Narcotics Cell, Crime Branch, Kotwali, Delhi on 20.07.2016, at about 11.15 am and he shared the secret information with his immediate senior officer i.e. PW-11 Inspector Vijender Singh at about 11.30 am who personally visited the Office of ACP on the same day and transmitted the information to ACP Sh. Ranvir Singh Dahiya. It is further established on record that the secret information was reduced into writing at around 11.45 am by PW-7 Inspector Sanjay Neolia vide DD no. 10 carbon copy of which is Ex.PW7/A and he handed over this DD to PW-11 Inspector Vijender Singh who after putting his endorsement forwarded the same to PW-8 ACP R.S. Dahiya. It is further established on record that DD No.10 Ex.PW7/A regarding the secret information was produced before PW-8 ACP R.S. Dahiya within the prescribed time. It is, thus, held that compliance of Section 42 NDPS Act has been properly made in the present case.
DISCUSSION ON THE POINT OF RECOVERY OF CONTRABAND
34. As per prosecution case, on 20.07.2016, a secret information was received by SI Sanjay Neolia whereupon he with permission of his superiors constituted a raiding team comprising of himself, HC Ravinder and Ct. Samrat. The raid was conducted at the place of information and SC No. 1023/2016 Page 21 of 59 State vs. Mohd. Hasin @ Pahalwan Judgment dt.12.07.2024 the accused was apprehended from whom 110 grams of heroin was effected.
35. In order to prove its case, the prosecution has examined recovery witnesses, namely, PW-1 ASI Ravinder Kumar (the then Head Constable), PW-6 HC Samrat (the then Constable) and PW-7 Inspector SI Sanjay Neolia (the then SI) and 1st IO. All the recovery witnesses have spelled out in detail the manner in which the accused was apprehended and recovery of contraband was effected from him.
36. PW-7 Inspector Sanjay Neolia, who is the first IO and In-charge of the raiding team, deposed that pursuant to directions of Inspector Vijender Singh, he constituted raiding party including himself, HC Ravinder and Ct. Smart and took IO kit, field testing kit and electronic weighing machine with him and they along with the secret informer left the office at around 12.00 noon in a private car vide DD No. 12 which is Ex.PW7/B. He further deposed that they reached at the spot i.e. Patparganj Industrial Area, near Metro Pillar No. 201 via Shanti Van Red light, Geeta Colony, DC (East) Office, Karkari Mod and Hasan Pur Depot. The private car was parked inside the Patparganj Industrial area gate and at about 12.55 pm, he detailed the raiding team and they took their positions at the spot. At about 1.10 pm, one person (accused) was seen coming from the ISBT, Anand Vihar side and going towards Gazipur and on seeing the said person, the secret informer identified him as accused Haseen @ Pahalwan SC No. 1023/2016 Page 22 of 59 State vs. Mohd. Hasin @ Pahalwan Judgment dt.12.07.2024 from a distance of 25 meters and thereafter the secret informer left the spot. He further deposed that the accused stopped there and after waiting for about 10 minutes when he started moving back towards Anand Vihar, ISBT side, the raiding team apprehended the accused. He further deposed that he introduced the raiding team to the accused and directed HC Samrat to bring the car near the spot. He informed the accused about the secret information received by him and told the accused that he was required to be searched. He also apprised the accused about his legal rights to conduct his search in the presence of a Gazetted Officer or a Magistrate and served a notice under Section 50 NDPS Act upon the accused but the accused refused to get his search conducted in the presence of a Gazetted officer or a Magistrate and also refused to take search of the raiding party and of the private vehicle. He further deposed that he conducted cursory search of the accused and a transparent polythene bag containing some brown colour powder was recovered from right side pocket of wearing pants of the accused which on checking in the field testing kit was found to be heroin and on weighing the same it was found 110 grams.
37. The aforesaid testimony of PW-7 SI Sanjay Neolia, the 1st IO has been duly corroborated by other two recovery witnesses PW-1 ASI Ravinder Kumar and PW-6 HC Samrat. They have deposed on the similar lines as deposed by PW-7 SI Sanjay Neolia in his chief examination and very well supported his version SC No. 1023/2016 Page 23 of 59 State vs. Mohd. Hasin @ Pahalwan Judgment dt.12.07.2024 regarding apprehension of the accused from the spot and recovery of the contraband i.e. 110 grams heroin from the possession of the accused.
38. In the cross-examination of above recovery witnesses, nothing material could be brought on record by the Ld. Defence Counsel to disbelieve their aforesaid deposition.
39. PW-7 SI Sanjay Neolia, the 1st IO stated in his cross-examination that he had collected the weighing machine from the malkhana and the field testing kit was already with him. He admitted that he exclusively used his field testing kit. He further deposed that the capacity of the weighing machine was minimum 5 grams, however he could not recollect its maximum capacity. He also did not remember the make, model and colour of the weighing machine. He categorically stated that he checked the weighing machine before they left from office of Narcotic Cell. He further stated that no government vehicles were available for them when they went for raid. He further stated that vehicle No. DL2CAL 2859 was his private vehicle. He stated that on the day of incident, there was no official vehicle available which could have been used by them for the purpose of conducting raid. He categorically stated that the field testing kit used by them can detect the cocaine, opium, heroin etc. He stated that test of the recovered substance was done after mixing the complete recovered contraband and when they checked the recovered contraband, purple colour came on the field SC No. 1023/2016 Page 24 of 59 State vs. Mohd. Hasin @ Pahalwan Judgment dt.12.07.2024 testing kit. He was suggested that nothing incriminating substance was recovered from the possession of the accused and that the accused was lifted from his house in Bhajanpura which he denied.
40. PW-1 ASI Ravinder Kumar stated in his cross-
examination that IO bag, field testing kit and electronic weighing machine were with the IO when he met him in the office. He further stated that it took 5 minutes to constitute the raiding party and DD entry no. 12 was lodged. He further stated that private vehicle was of 1 st IO. He admitted that the 1st IO had not mentioned in DD no. 12 that the aforesaid car belongs to him. He stated that the secret informer was sitting on the back side beside him and the 1st IO was driving the car and Ct. Samrat was sitting beside the driver. He further stated that the electronic weighing machine was of silver colour but he could not remember its make. He categorically stated that 1st IO, Ct. Samrat and he himself apprehended the accused and that cursory search of the accused was done by 1 st IO. He stated that 1st IO tested the recovered contraband from field testing kit by taking out some contraband from the recovered contraband and putting one drop of chemical A1 and 3 drops of chemical A2 of the field testing kit and the colour of the tested contraband changed to purple. He further stated that the contraband was taken out from the recovered packet for testing with the help of one wooden stick kept in the field testing kit. He further stated that the tested contraband was not kept and it was thrown away.
SC No. 1023/2016 Page 25 of 59State vs. Mohd. Hasin @ Pahalwan Judgment dt.12.07.2024
41. PW-6 HC Samrat, the another recovery witness, stated in his cross-examination that all the raiding party went to the spot in the same car. He was not aware whether government vehicle was available on the date of recovery. He further stated that the above mentioned car was possessed by SI Sanjay Neolia. He further stated that IO was having his IO bag, field testing kit etc with him. He could not remember the make and colour of weighing machine. He admitted that IO made departure entry in his presence and that at that time HC Ravinder was also present. He stated that IO Sanjay Neolia used the field testing kit to test the contraband. He was asked to explain the procedure of testing the contraband with the help of field testing kit and he replied that IO took sample from the contraband kept in plastic polythene recovered from the accused with the help of one small glass/wooden stick and put the small quantity of contraband on one small tray and, thereafter, IO put few drops from two bottles which were part of field testing kit on the contraband which was kept on the tray and consequently the colour of the said substance turned purple. He stated the sample quantity which was used in field testing kit was too small and that is why it was not weighed.
42. This witness (PW-6) when again appeared for his cross-examination, he stated that the contraband was shuffled before taking sample and the test of the sample was conducted by IO SI Sanjay Neolia by himself and he had not taken help of anyone. He affirmed his earlier SC No. 1023/2016 Page 26 of 59 State vs. Mohd. Hasin @ Pahalwan Judgment dt.12.07.2024 statement that the quantity of the sample which was taken for testing was not measured because the quantity was very small/less. He further stated that the sample was taken from the contraband by glass stick available in the field testing kit. He stated that when they left to conduct the raid, the vehicle was driven by IO SI Sanjay Neolia and he was sitting on the front seat beside the driver. He further stated that the accused was apprehended and controlled by all the members of the raiding team. He could not tell minimum/maximum capacity of the weighing scale.
43. The aforesaid testimonies of above recovery witnesses i.e. PW-1 ASI Ravinder Kumar, PW-6 HC Samrat Singh and PW-7 Inspector Sanjay Neolia make it clear that they have stood firm on their deposition and corroborated each other's version be it was time when they departed from their office to conduct raid, registration of the private vehicle in which they departed, ownership of the vehicle, sitting arrangement in the vehicle or the colour of the tested contraband. PW-1 ASI Ravinder Kumar and PW-6 HC Samrat Singh have also explained the procedure conducted by the 1 st IO SI Sanjay Neolia to test the contraband in corroboration of each other. All the recovery witnesses have very well withstood the test of cross examination and no material contradiction has surfaced in their cross examination to doubt their version regarding the recovery proceedings.
44. Although the accused in his statement recorded SC No. 1023/2016 Page 27 of 59 State vs. Mohd. Hasin @ Pahalwan Judgment dt.12.07.2024 under Section 313 Cr.P.C. has taken a defence that he had gone to Chandni Chowk for purchase of clothes on 19.07.2016 and at about 3.30 pm, when he was returning to his home at Khajuri Khas, some police officials enquired him near Chandi Chowk bus stand about his residence and thereafter they had taken him to Narcotic Cell where the police officials asked him to take name of some persons who were indulged in drug trafficking and against whom the cases under NDPS Act were pending. He told them that he did not know any such person and on this, the police officials got annoyed and falsely implicated him in a false case.
45. However, this defence of the accused is apparently an afterthought as no such suggestion was given to any of the recovery witnesses that he was apprehended by the police on 19.07.2016 from Chandni Chowk area and not on 20.07.2016 from Patparganj Industrial area. Rather this defence of the accused is in contradiction to the defence taken by him during the cross-examination of PW-7 Inspector SI Sanjay Neolia, the 1st IO where he was suggested that the accused was lifted from his house in Bhajanpura which suggestion was denied by the witness. This defence of the accused also does not appear to be plausible as he simply claimed false implication and foisting of contraband upon him by the police officials for the aforesaid reason but he has neither claimed animosity nor acquaintance with the police officials. Hence, there was no reasonable ground for his false implication on the SC No. 1023/2016 Page 28 of 59 State vs. Mohd. Hasin @ Pahalwan Judgment dt.12.07.2024 said vague and bald plea.
46. During course of the arguments, the Ld. Defence Counsel has also argued that the recovery witnesses could not tell the make, model and maximum capacity of the weighing machine used in the recovery proceedings which makes the story of the prosecution regarding recovery of 110 grams heroin doubtful.
47. However, I do not find any merit in the contention of the Ld. Defence Counsel. It is true that the recovery witnesses, namely, PW-1 ASI Ravinder Kumar, PW-6 HC Samrat Singh and PW-7 Inspector Sanjay Neolia could not remember the make or maximum capacity of the electronic weighing machine which was used in the recovery proceedings, however on this count, recovery proceedings cannot be doubted; more so when the testimonies of the recovery witnesses could not be shaken by the Ld. Defence Counsel on material aspects. None of the witness was suggested that the electronic weighing machine was not properly functioning or it had no capacity to weigh the recovered contraband. Therefore, in the absence of any such suggestion, it does not make any dent to the case of the prosecution if the recovery witnesses could not tell the make or maximum capacity of the electronic weighing machine.
48. As noted above, the testimonies of all the raiding team members as narrated above clearly show that they have disclosed all the material facts pertaining to the time SC No. 1023/2016 Page 29 of 59 State vs. Mohd. Hasin @ Pahalwan Judgment dt.12.07.2024 when they departed from the office to the spot, how they departed, the time when they arrived at the place of information, the time when the accused arrived there, the manner in which they apprehended the accused, from which pocket of the pants of the accused, the contraband was recovered, the colour of the tested contraband etc. They have deposed on the similar lines and very well supported the version of each other and their testimonies could not be shaken by the Ld. Defence Counsel during their cross-examination.
49. In view of these discussions, it is held that prosecution has successfully proved that the accused was apprehended from the spot i.e. Patparganj Industrial Area exit gate, near Metro Pillar no. P-201 and that 110 grams heroin was recovered from the right side pocket of the wearing pants of the accused.
DISCUSSION ON THE POINT OF COMPLIANCE OF SECTION 50 OF NDPS ACT
50. Section 50 of the NDPS provides the conditions under which search of persons shall be conducted. The legal position in respect to the Section 50 NDPS Act has been laid down by Hon'ble Supreme Court in the case titled as State vs Baldev Singh reported as 1999 AIR (SC) 2378 that the compliance of the provisions of section 50 NDPS Act is mandatory. It is also held in this case that the compliance of this provision is not necessary where recovery was effected without prior information and SC No. 1023/2016 Page 30 of 59 State vs. Mohd. Hasin @ Pahalwan Judgment dt.12.07.2024 where it was the case of a chance recovery. The relevant para of this judgment reads as under:-
11. On its plain reading, Section 50 would come into play only in the case of a search of a person as distinguished from search of any premises etc. However, if the empowered officer, without any prior information as contemplated by Section 42 of the Act makes a search or causes arrest of person during the normal course of investigation into an offence or suspected offence and on completion of that search, a contraband under the Narcotic Drugs And Psychotropic Substances Act is also recovered, the requirements of Section 50 of the Act are not attracted.
51. In the case titled as State of Punjab vs. Balbir Singh reported as 1994(3) SCC 299, same view has been taken by Hon'ble Supreme Court. The relevant para reads as under:-
26. The questions considered above arise frequently before the trial courts. Therefore, we find it necessary to set out our conclusions which are as follows :
1) If a police officer without any prior information as contemplated under the provisions of the Narcotic Drugs And Psychotropic Substances Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offence as provided under the provisions of Cr P.C. and when such search is completed at that stage Section 50 of the Narcotic Drugs and Psychotropic Substances Act would not be attracted and the question of complying with the requirements thereunder would not arise. If during such search or arrest there is a chance recovery of any narcotic drug or Psychotropic substance then the police officer, who is not empowered, should inform the empowered officer who should thereafter proceed in SC No. 1023/2016 Page 31 of 59 State vs. Mohd. Hasin @ Pahalwan Judgment dt.12.07.2024 accordance with the provisions of the Narcotic Drugs And Psychotropic Substances Act. If he happens to be an empowered officer also, then from that stage onwards, he should carry out the investigation in accordance with the other provisions of the Narcotic Drugs And Psychotropic Substances Act.
2 (A) -----------
2 (B) -----------
2 (C) ------------
(3) ------------
(4) -------------
(5) On prior information, the empowered officer or authorized officer while acting under Section 41(2) or 42 should comply with the provisions of Section 50 before the search of the person is made and such person should be informed that if he so requires, he shall be produced before a gazetted officer or a magistrate as provided thereunder. It is obligatory on the part of such officer to inform the person to be searched. Failure to inform the person to be searched and if such person so requires, failure to take him to the gazetted officer or the magistrate, would amount to non-compliance of Section 50 which is mandatory and thus it would affect the prosecution case and vitiate the trial. After being so informed whether such person opted for such a course or not would be question of fact.
52. In the instant case, there was prior intimation with the police regarding illegal possession of contraband by the accused. Therefore, provisions under Section 50 of the NDPS Act were mandatorily required to be complied with in the present case.
53. As per prosecution case, after apprehension of the accused, he was served with the mandatory notice under Section 50 of the NDPS Act and only after his refusal to avail his legal rights, his search was carried out. However, the accused in his statement recorded under Section 313 Cr.P.C. has denied to have been served with any such SC No. 1023/2016 Page 32 of 59 State vs. Mohd. Hasin @ Pahalwan Judgment dt.12.07.2024 notice or to have written his refusal in his own handwriting on the carbon copy of the notice. In view of the said claim of the accused, it is to be seen whether or not compliance of Section 50 of the NDPS Act was properly made before the search of the accused.
54. As per deposition of PW-7 Inspector Sanjay Neolia, the 1st IO of the case and the In-charge of the raiding team, after apprehension of the accused, he introduced the raiding party to the accused and asked Ct. Samrat to bring the car near the spot. He informed the accused regarding the secret information about him and that heroin could be recovered from him. He also informed the accused that he was required to be searched by him personally. He further deposed that he also informed the accused about his legal right to get his personal search conducted in presence of a Gazetted Officer or a Magistrate on the spot and also that he could be taken to Gazetted Officer or Magistrate, if he desired for his personal search before them. The meaning of Gazetted Officer and Magistrate was explained to the accused by him. He further deposed that the accused was also informed by him about his legal right to conduct the personal search of raiding team members and also of their vehicle prior to his own personal search but the accused refused for the same and Section 50 NDPS Act notice was served by him. He further deposed that the accused recorded his refusal on the carbon copy of Section 50 NDPS Act notice in his own handwriting which is Ex. PW1/A and the original notice was kept by the accused in SC No. 1023/2016 Page 33 of 59 State vs. Mohd. Hasin @ Pahalwan Judgment dt.12.07.2024 his pocket and, thereafter he conducted personal search of the accused and from the right side pocket of the pants worn by the accused, contraband was recovered in a transparent polythene. He further deposed that after arrest of the accused, his personal search was conducted by 2 nd IO SI Dinesh vide personal search memo Ex.PW1/C during which original notice under Section 50 of the NDPS Act was recovered besides Rs. 320/- in cash.
55. During his cross-examination, PW-7 Inspector Sanjay Neolia stated that when he informed Inspector Vijender about conducting raid, he did not tell him the name of the Gazetted officer or Magistrate before whom the accused was to be taken. He voluntarily stated that the nearest available GO or Magistrate of the spot where the accused is apprehended is to be confirmed by them. He denied the suggestion that he did not serve any notice under Section 50 NDPS Act upon the accused or that nothing incriminating substance was recovered from the possession of the accused.
56. The aforesaid cross-examination of PW-7 Inspector Sanjay Neolia clearly shows that the Ld. Defence Counsel could not impeach his testimony regarding preparation of notice under Section 50 of the NDPS Act by him and service of the original notice upon the accused at the spot before his search.
57. PW-1 ASI Ravinder Kumar and PW-6 HC Samrat who were the other members of the raiding party in their SC No. 1023/2016 Page 34 of 59 State vs. Mohd. Hasin @ Pahalwan Judgment dt.12.07.2024 respective chief examination have deposed on the similar lines that IO informed the accused about his legal rights that if he wanted, he could be produced before Gazetted Officer/ Magistrate before conducting his personal search and also informed him that if he intended to conduct the personal search of the members of raiding team and of the private vehicle, he may do the same, but the accused refused for the same and the notice under Section 50 of the NDPS Act was served upon him by SI Sanjay Neolia and the accused recorded his refusal on the carbon copy of the notice Ex. PW1/A in his own handwriting.
58. Nothing material could be brought on record by the Ld. Defence Counsel in the cross-examination of both the witnesses as well to disbelieve their version regarding preparation of notice under Section 50 and its service upon the accused by the 1 st IO/ SI Sanjay Neolia at the spot.
59. On the contrary, PW-1 ASI Ravinder Kumar categorically stated notice under Section 50 of the NDPS Act was prepared by 1st IO in his own handwriting in duplicate vide carbon process. He further categorically stated that the meaning of Gazetted officer was explained as the officer who are notified in the gazette of government and meaning of Magistrate was also explained as a officer who administers justice. He could not remember whether any Gazetted officer or Magistrate was called by the 1st IO at the spot. However, when the accused had refused to avail his legal rights, there was no SC No. 1023/2016 Page 35 of 59 State vs. Mohd. Hasin @ Pahalwan Judgment dt.12.07.2024 requirement under law by the IO to call a Gazetted officer or a Magistrate at the spot.
60. PW-6 HC Samrat has also categorically stated in his cross-examination that first of all, the 1st IO prepared notice under Section 50 of the NDPS Act on the spot in his own handwriting and he had also read the contents of the notice and signed the notice as a witness. He further stated that the contents of the notice under Section 50 of the NDPS Act were read over to the accused by IO SI Sanjay Neolia. He could not tell the time when notice under Section 50 was prepared but he stated that it was prepared within half an hour of their arrival at the spot. He stated that the registration number of the car which was offered to the accused to be searched was not mentioned in the notice under Section 50 NDPS Act. He further stated that the number of the vehicle was also not mentioned in the refusal of the accused and it was also not told to the accused because the vehicle was available in front of the accused which was offered to be searched by him. As such, the witness has clarified the reason for not mentioning the registration number of the vehicle to be searched by the accused in the notice under Section 50 of the NDPS Act or in the refusal of the accused.
61. PW-1 ASI Ravinder Kumar, one of the recovery witnesses and PW-10 Inspector (the then SI) Dinesh Kumar, the 2nd IO of the case who conducted personal search of the accused after his arrest on the spot also corroborated the deposition of 1st IO SI Sanjay Neolia that SC No. 1023/2016 Page 36 of 59 State vs. Mohd. Hasin @ Pahalwan Judgment dt.12.07.2024 during personal search of accused, original notice under Section 50 of NDPS Act and cash of Rs. 320/- were recovered which testimonies again could not be shaken by the Ld. Defence Counsel during their cross-examination.
62. The accused has not disputed the fact that reply/refusal on the carbon copy of the notice Ex. PW1/A is in his handwriting and that the same also bears his signature. Though during course of the arguments, Ld. Defence Counsel has argued that the signatures of the accused were taken by the police on some blank documents which were later converted into incriminating documents against the accused including notice under Section 50 of the NDPS Act, but this claim of the accused is not believable in the absence of any animosity or acquaintance pointed out by the accused with the police officials.
63. In view of the testimonies of the recovery witnesses, the prosecution has successfully proved on record that the accused was properly served with the notice under Section 50 of the NDPS Act at the spot before his search and there was no violation of the said mandatory provision.
DISCUSSION ON THE POINT OF SEIZURE OF CONTRABAND, PROCEEDINGS REGARDING DRAWING OF SAMPLE AND COMPLIANCE OF SECTION 55 OF THE NDPS ACT
64. As per the prosecution case, SI Sanjay Neolia, the SC No. 1023/2016 Page 37 of 59 State vs. Mohd. Hasin @ Pahalwan Judgment dt.12.07.2024 first IO of the case after getting the recovery effected from the possession of the accused drew samples out of the recovered contraband, sealed and seized them and sent the sealed case property to the SHO concerned who got deposited the sealed case property in the malkhana in compliance of Section 55 of the NDPS Act.
65. In this regard, PW-7 Inspector (the then SI) Sanjay Neolia deposed that two separate samples of 5 grams each were drawn from 110 grams heroin recovered from the accused and the same were kept in two separate transparent bags mouth of which were tied by rubber bands by him and both the samples were wrapped in a white cloth and two separate pullandas were prepared which were marked as A and B. He further deposed that remaining quantity of the contraband was kept separately in the transparent polythene and its mouth was tied with a rubber band and the same was wrapped in a white cloth and it was marked as C. He further deposed that all the three cloth pullandas of the contraband were sealed with the seal of '7 APSNB DELHI' and, thereafter, FSL form was filled up and same seal impression was put on the FSL Form. Then he prepared the seizure memo Ex. PW1/B of the recovered contraband and the seal after use was handed over to HC Ravinder. He, thereafter, prepared rukka Ex. PW7/C and handed over the same to Ct. Samrat along with three sealed pullandas, carbon copy of seizure memo and FSL form with direction to hand over rukka to Duty officer for registration of case and the SC No. 1023/2016 Page 38 of 59 State vs. Mohd. Hasin @ Pahalwan Judgment dt.12.07.2024 remaining things to the SHO, PS Crime Branch. He further deposed that Ct. Samrat left the spot for PS Crime Branch, Malviya Nagar at 4.30 pm by the same private car.
66. The aforesaid testimony of PW-7 Inspector Sanjay Neolia, the 1st IO has been duly corroborated by PW-1 ASI Ravinder Kumar and PW-6 HC Samrat who were the witnesses to the seizure of contraband by the 1 st IO from the possession of the accused and its sampling. They have deposed on the similar lines as deposed by PW-7 Inspector Sanjay Neolia and very well supported his version regarding seizure of the contraband from the possession of the accused, its sampling and sealing.
67. In the cross-examination of the above witnesses, nothing material came out to impeach their testimonies regarding seizure of contraband and its sampling done by 1st IO/SI Sanjay Neolia at the spot.
68. PW-1 PW-7 Inspector Sanjay Neolia categorically stated in his cross-examination that the seal of '7A PSNB DELHI' was issued to him permanently during his posting in Narcotics Cell. He voluntarily stated that when he left charge of said Narcotics Cell, he returned the seal. He denied the suggestion that there is practice of making entry in the register to issue seal to the concerned IO on the same day when the raid is to be conducted. He further stated that the seal used in the sealing of the case property was issued from the malkhana Narcotic Cell Darya Ganj SC No. 1023/2016 Page 39 of 59 State vs. Mohd. Hasin @ Pahalwan Judgment dt.12.07.2024 with proper receipt. He further stated that the seal was issued after his joining in the Narcotic Cell and that after using the seal, he did not deposit it in the malkhana of narcotic cell. He admitted that the sample seal was with him.
69. PW-1 ASI Ravinder Kumar also stated in his cross-
examination that the pullandas were sealed by 1 st IO and that one seal each was affixed on the pullandas and the FSL form.
70. PW-6 HC Samrat has also supported the version of PW-7 Inspector Sanjay Neolia that the he was handed over the tehrir, carbon copy of seizure memo, FSL form and sealed case property by the 1 st IO/PW-7 Inspector Sanjay Neolia with a direction to hand over the tehrir to the Duty Officer for registration of case and the remaining things to the SHO and accordingly he left the spot at about 4.30 pm in the private car. He further deposed that he reached at PS at about 5.40 pm and handed over tehrir to Duty Officer ASI Ramavtar at about 5.40 pm. He further deposed that he handed over the case property, FSL form and carbon copy of seizure memo to SHO Inspector Sunil Kumar at about 5.45 pm and thereafter the SHO appended his seal on the FSL form and three pullandas. He further deposed that SHO enquired from the duty officer regarding the FIR details and mentioned the same on seizure memo, FSL form and case property. Thereafter, SHO called MHCM Jag Narain at his office along with register no. 19 and handed over the case property, FSL SC No. 1023/2016 Page 40 of 59 State vs. Mohd. Hasin @ Pahalwan Judgment dt.12.07.2024 form and seizure memo to MHCM who made entry in this regard in register no. 19. He further deposed that the SHO also signed the register no. 19 and made DD no. 15 at about 6.20 pm in compliance of Section 55 NDPS Act.
71. The aforesaid testimony of the witness could not be impeached by the Ld. Defence Counsel during his cross- examination. The witness categorically stated that he had not used any carry bag/polythene to take the case property, carbon copy of seizure memo and FSL form from spot to Crime Branch for registration of FIR. He further stated that DD entry no. 14 was made by the DO when he reached at Narcotic Cell with case property and the said DD entry was regarding Itla-Aamad-Tehrir. He further stated that DD no. 16 regarding bandimukdama was made by the DO. He further categorically stated that he reached at PS Crime Branch at 5.40 pm for registration of FIR and DD no. 16 was made at 07.15 pm.
72. PW-4 ASI Ram Avtar, who was posted at PS Crime Branch as Duty Officer on 20.07.2016 has corroborated the aforesaid version of PW-6 HC Samrat regarding handing over tehrir to him and the DD entries made by him. He deposed that on 20.07.2016, at about 5.40 am, he had received a rukka which was sent by SI SI Sanjay Neolia from HC Samrat and on the basis of rukka, he got the present case FIR registered through computer, computerized copy of which is Ex.PW4/A and the endorsement made by him to this effect on the rukka is Ex. PW4/B. He also deposed that he had also made SC No. 1023/2016 Page 41 of 59 State vs. Mohd. Hasin @ Pahalwan Judgment dt.12.07.2024 corresponding DD No. 14A and DD No. 16-A, copies of which are Ex.PW4/C 7 Ex. PW4/D respectively regarding registration of FIR.
73. Nothing material came out in the cross-examination of this witness except the suggestions put to him which were denied by the witness.
74. PW-5 Inspector Sunil Kumar, the then SHO, PS Crime Branch has also supported the version of PW-6 HC Samrat regarding handing over of the sealed case property to him by PW-6 HC Samrat and the proceedings carried out by him in compliance of Section 55 of the NDPs Act. He deposed that on 20.07.2016, at about 5.45 pm, Ct. Samrat Kumar came to his office and handed over him three sealed pullandas sealed with the seal of 7APSNB, DELHI marked as A, B & C along with FSL form and carbon copy of seizure memo. He asked FIR number and other details form the duty officer and put the FIR number 130/16 on the relevant memos and also on the sealed pullandas and FSL Form. After that, he counter sealed all the three pullandas with his seal of 'SK' and also put the seal impression on FSL form and also signed the same. He called MHCM HC Jag Narain in his office along with register no. 19 and handed over aforesaid things to MHCM who made relevant entry in register no. 19 in this regard, copy of which is Ex. PW2/A. He further deposed that after conducting the proceedings, he lodged DD no. 15 in rojnamcha at 6.20 pm in this regard, copy of which is Ex. PW5/A SC No. 1023/2016 Page 42 of 59 State vs. Mohd. Hasin @ Pahalwan Judgment dt.12.07.2024
75. Nothing material came out from the cross-
examination of this witness to doubt his aforesaid testimony. He categorically stated that Ct. Samrat came to his office and the case property was in his hand and the same was not in carry bag. Thus, the witness has confirmed the version of PW-6 HC Samrat that he had not used any carry bag/polythene to take the case property. He further stated that when he called MHCM Jag Narain in his office, Ct. Samrat was also present there and he left from his room at 6.20 pm.
76. The testimony of this witness has been further corroborated by PW-2 ASI Jagnarain, the then MHC(M) at PS Crime Branch who deposed that on 20.07.2016, he was called by Inspector Sunil Kumar, SHO, PS Crime Branch who gave him three sealed pullandas marked A, B & C bearing seal of '7A PS NB DELHI' and 'SK' along with FSL form bearing the same seals and carbon copy of seizure memo and he made entry in this regard in register no. 19 at serial no.2513. He produced copy of the relevant page of the register showing the said entry as Ex. PW2/A.
77. The accused chose not to cross-examine this witness and thus the aforesaid testimony of the witness has gone unrebutted and unchallenged .
78. In view of the testimonies of aforesaid prosecution witnesses, it is apparent that after recovery of contraband, the sampling was done on the spot and the 1 st IO PW-7 Inspector Sanjay Neolia after sealing the samples and the SC No. 1023/2016 Page 43 of 59 State vs. Mohd. Hasin @ Pahalwan Judgment dt.12.07.2024 case property did not retain the seal with him and handed over the same to PW-1 ASI Ravinder Kumar who also corroborated the same. It is further evident that immediately after seizure, the pullandas of the contraband & samples along with FSL form were sent to PW-5 Inspector Sunil Kumar, the then SHO who also put his seal on the sealed pullandas and immediately deposited the case property in the malkhana. Hence, it stands proved that proper compliance of Section 55 of the NDPS Act has been made in the instant case.
DISCUSSION ON THE POINT OF COMPLIANCE OF SECTION 57 OF NDPS ACT
79. As per requirement of Section 57 of the Act, whenever any person makes any arrest or seizure under this Act, he shall, within forty-eight hours after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate superior official.
80. In this regard, PW-7 Inspector Sanjay Neolia deposed that he prepared a report under Section 57 of the NDPS Act which is Ex. PW7/E bearing his signature at point X and forwarded it to Inspector Vijender.
81. The witness was not cross-examined at all on this aspect and this part of his testimony has gone unrebutted and uncontroverted.
82. Even otherwise, PW-11 Inspector Vijender Singh has corroborated the aforesaid version of PW-7 Inspector SC No. 1023/2016 Page 44 of 59 State vs. Mohd. Hasin @ Pahalwan Judgment dt.12.07.2024 Sanjay Neolia, the 1st IO. He deposed that on 21.07.2016, SI SI Sanjay Neolia had produced the report under Section 57 NDPS Act regarding seizure of 110 grams heroin from accused Hasin @ Pahalwan which is Ex. PW7/E which he signed and forwarded to ACP concerned Sh. Ranvir Singh Dahiya. He further deposed that SI Diensh had also produced before him carbon copy of special report under Section 57 NDPS Act regarding arrest of the accused which is Ex. PW11/A which was also signed by him and forwarded to ACP Sh. Ranvir Singh Dahiya.
83. Except the suggestion put to the witness that no report was forwarded by him to the ACP concerned which was denied by him, there is nothing material in the cross- examination of this witness to impeach his aforesaid deposition.
84. In order to prove that the information regarding seizure of the contraband from the possession of the accused and his arrest was made to the ACP concerned within the prescribed time, the prosecution has examined PW-9 Ct. Amit Kumar who brought the original diary register of the year 2016 maintained at ACP Office. He deposed that report under Section 57 of the NDPS Act regarding seizure of contraband prepared by SI Sanjay Neolia dated 21.07.2016 Ex.PW7/E and another report under Section 57 of the NDPS Act prepared by SI Dinesh Kumar dated 21.07.2016 were received in their office vide diary nos. 1789 and 1790 dated 21.07.2016. He further deposed that both the reports were seen and signed by the SC No. 1023/2016 Page 45 of 59 State vs. Mohd. Hasin @ Pahalwan Judgment dt.12.07.2024 then ACP.
85. Although the witness was not posted in the ACP office at the relevant time when the entries nos. 1789 and 1790 dated 21.07.2016 were made as stated by him in his cross-examination and he could tell as to who made these entries, however it does not make any dent to the case of the prosecution regarding receipt of reports under Section 57 of the NDPS Act at the ACP Office on 21.07.2016. The witness has brought the original diary register maintained at the ACP Office showing the entries made by the concerned staff. He has also produced the original report prepared by SI Dinesh Kumar dated 21.07.2016 under Section 57 of the NDPS Act as Ex.PW9/A bearing signature of ACP which clearly shows that the report was seen by the concerned ACP on 21.07.2016 itself. Original of the report prepared by SI Sanjay Neolia regarding seizure of 110 grams of heroin dated 21.07.2016 is also on judicial record bearing signature of the ACP, though no exhibit has been marked on the same.
86. PW-8 Retd. ACP R.S. Dahiya has also supported the testimony of PW-9 Ct. Amit Kumar and deposed that on 21.07.2016, Reader put up two reports under Section 57 of the NDPS Act before him, both dated 21.07.2016, one regarding recovery or heroin prepared by SI Sanjay Nelia Ex.PW7/E and the other prepared by SI Dinesh, both forwarded by Inspector Vijender. He further deposed that he put his signature on both the original reports.
SC No. 1023/2016 Page 46 of 59State vs. Mohd. Hasin @ Pahalwan Judgment dt.12.07.2024
87. The aforesaid testimony of the witness has remained unchallenged as the accused chose not to cross- examine the witness.
88. In view of the above discussions, the prosecution has successfully proved on record that two reports under Section 57 of the NDPS Act, one prepared by SI Sanjay Neolia, the 1st IO dated 21.07.2016 regarding seizure of the contraband from the possession of the accused, carbon copy of which is Ex.PW7/E and another prepared by SI Dinesh, the 2nd IO dated 21.07.2016 regarding arrest of the accused Ex.PW9/A (carbon copy of which is Ex.PW11/A) were produced before PW-11 Inspector Vijender Singh on 21.07.2016 who immediately forwarded the same to ACP Ranbir Dahiya which were received in the ACP office on the same day i.e. 21.07.2016 and the same were also signed by the concerned ACP on the same day i.e. within the prescribed time. Hence, mandatory provision under Section 57 of the NDPS Act has been duly complied with in the instant case.
DISCUSSIONS ON THE POINT OF NON JOINING OF THE PUBLIC WITNESSES
89. During course of the arguments, Ld. Defence Counsel submitted that the prosecution case is highly doubtful as no public witness has been joined during the entire investigation and the prosecution case solely rests on the testimonies of police witnesses who are not reliable and creditworthy being interested witnesses.
SC No. 1023/2016 Page 47 of 59State vs. Mohd. Hasin @ Pahalwan Judgment dt.12.07.2024
90. Admittedly, in the present case no public or independent witness has been joined during course of the investigation, however it is clear from the testimonies of the prosecution witnesses that PW-7 Inspector Sanjay Neolia, the 1st IO made efforts to join public witnesses, but none agreed.
91. In this regard, all the members of the raiding team, namely, PW-1 ASI (the then Head Constable) Ravinder Kumar , PW-6 HC (the then Constable) Samrat and PW-7 Inspector (the then SI) Sanjay Neolia, the 1st IO have deposed on the similar lines that before reaching the spot, SI Sanjay Neolia had requested 6 public persons at Shanti Van red light and 6 public persons in front of Hasan Pur Depot red light to join the raiding party but none agreed and went away showing their genuine reasons without disclosing their names and addresses. They have also deposed that after apprehension of the accused, some passersby who had gathered there were also asked to join the investigation but all of them refused for the same.
92. In the cross-examination, PW-1 ASI Ravinder Kumar stated that IO did not ask any person to join raid in front of their office when they were leaving for raid. He further stated that no notice in writing was given to public persons who did not join the raid at Shanti Van red light and opposite Hasanpur depot.
93. PW-6 HC Samrat Singh stated in his cross-
examination that no guard from EDM Mall or any person SC No. 1023/2016 Page 48 of 59 State vs. Mohd. Hasin @ Pahalwan Judgment dt.12.07.2024 from police picket were asked to join the investigation.
94. PW-7 Inspector SI Sanjay Neolia has also stated in his cross-examination that no person from the nearby factory was requested to join the raiding party due to shortage of time. He voluntarily stated that only passersby were requested to join the investigation. He further stated that 2nd IO did not call any person from nearby factory to join the investigation in his presence. He further stated that after apprehension of the accused and till arrival of 2 nd IO at the spot, he did not call any person from nearby factory to join the investigation.
95. The aforesaid cross-examination of the recovery witnesses shows that IO/SI Sanjay Neolia did not ask any public person in front of Narcotic Cell or called any person from the nearby factory near the spot to join the raiding party. However, it is to be noted here that SI Sanjay Neolia received the secret information at about 11.15 am on 20.07.2016 and after satisfying with the information, he produced the secret informer before his immediate superior officer Inspector Vijender Singh at 11.30 am who in turn intimated the ACP concerned about the secret information and directions were received to conduct the raid. Thereafter, SI Sanjay Neolia reduced the secret information in writing vide DD No. 10 Ex. PW7/A at 11.45 am in compliance of provisions of under Section 42 of the NDPS Act and constituted a raiding party. He left the Narcotics Cell along with other team members for the spot at around 12 noon in his private car. As per the SC No. 1023/2016 Page 49 of 59 State vs. Mohd. Hasin @ Pahalwan Judgment dt.12.07.2024 secret information, the accused was supposed to come at exit gate of Patparganj Industrial Area, near Metro Pillar no. P-201 between 1.00 to 2.00 pm to supply heroin to someone. In these facts, the raiding team did not have sufficient time to associate the public witnesses at all places between Narcotic Cell, Crime Branch, Kotwali, Darya Ganj to the spot at Patparganj Industrial Area as there was possibility of the accused being escaped. Therefore, even if SI Sanjay Neolia did not ask any public person in front of the Narcotic Cell or after reaching at the spot did not call any person from nearby factory to join the raiding party due to shortage of time as also explained by him during his cross-examination, he cannot be faulted with. It was not the case that he did not try to associate the public persons in the investigation before apprehension of the accused. He had asked the passersby to join the investigation at two places at Shanti Van red light and in front of Hasan Pur red light but they refused to join the investigation. It is also a fact that no notice was served by SI Sanjay Neolia upon the public persons who had refused to join the investigation. But as noted earlier, he did not have sufficient time to serve the notice upon the public persons because if he had devoted his time in writing down the names and addresses of the passersby to serve the notice upon them, there was every possibility that the accused would have escaped.
96. Similarly, if after apprehension of the accused till arrival of second IO SI Dinesh, the 1st IO/ SI Sanjay SC No. 1023/2016 Page 50 of 59 State vs. Mohd. Hasin @ Pahalwan Judgment dt.12.07.2024 Neolia did not call any person from the nearby factory, proceedings carried out by him cannot be doubted. After apprehension of the accused, he had asked the public persons who had gathered there to join the proceeding, but they denied.
97. Even otherwise, non joining of independent witness in the present case is not fatal to the prosecution case in view of testimonies of prosecution witnesses particularly of recovery witnesses who have corroborated each other on material aspect and their testimonies could not be impeached by the Ld. Defence Counsel. In this regard, this court is supported by the case law i.e. Ajmer Singh vs. State of Haryana reported as 2010 (2) SCR 785. The relevant para reads as under:-
It is true that a charge under the Act is serious and carries onerous consequences. The minimum sentence prescribed under the Act is imprisonment of 10 years and fine. In this situation, it is normally expected that there should be independent evidence to support the case of the prosecution. However, it is not an inviolable rule. Therefore, in the peculiar circumstances of this case, we are satisfied that it would be travesty of justice, if the appellant is acquitted merely because no independent witness has been produced. We cannot forget that it may not be possible to find independent witness at all places, at all times. The obligation to take public witnesses is not absolute. If after making efforts which the court considered in the circumstances of the case reasonable, the police officer is not able to get public witnesses to associate with the raid or arrest of the culprit, the arrest and the recovery made would not be necessarily vitiated. The court will have to appreciate the relevant evidence and will have to determine whether the evidence of the police officer was believable after SC No. 1023/2016 Page 51 of 59 State vs. Mohd. Hasin @ Pahalwan Judgment dt.12.07.2024 taking due care and caution in evaluating their evidence.
98. It is well settled law that the evidence of police official cannot be doubted unless previous enmity between the accused and the police officials is shown. In Sunil Tomar vs. State of Punjab, Criminal Appeal no. 1690-1691 of 2012 decided on 19.10.12, it was held :-
"In a case of this nature, it is better if prosecution examines at least one independent witness to corroborate its case. However, in the absence of any animosity between the accused and official witnesses, there is nothing wrong in relying upon their testimonies and accepting the documents placed for basing conviction. After taking into account the entire material relied upon by the prosecution, there is no animosity established on the part of the official witnesses by the accused in defence and we also did not find any infirmity in the prosecution case".
99. Furthermore, the police officials are considered to be equally competent and reliable witnesses and their testimony can be relied upon even without corroboration by an independent witness if same is cogent and reliable. In Rohtas vs. State of Haryana, JT 2013(8) SC 181, Hon'ble Supreme Court held that :-
"Where all the witnesses are from police department, their depositions must be subject to strict scrutiny. However, the evidence of police officials cannot be discarded merely on the ground that they belong to the police force and either interested in investigating or the prosecuting agency".
100. Further, it is also not uncommon that these days SC No. 1023/2016 Page 52 of 59 State vs. Mohd. Hasin @ Pahalwan Judgment dt.12.07.2024 people are generally reluctant to become part of investigation. In this regard, the Hon'ble High Court in the case of Bheru Lal vs, State while observing that recovery cannot be doubted for the reason of non joining of public witness held as under:-
"19. Dealing with a similar contention in 'Ram Swaroop v. State (Govt. NCT) of Delhi', 2013(7) SCALE 407, where the alleged seizure took place at a crowded place yet no independent witness could be associated with the seizure, the Apex Court inter alia observed as under:
"7. ....We may note here with profit there is no absolute rule that police officers cannot be cited as witnesses and their depositions should be treated with suspect. In this context we may refer with profit to the dictum in State of U.P. v. Anil Singh, 1988 Supp SCC 686, wherein this Court took note of the fact that generally the public at large are reluctant to come forward to depose before the court and, therefore, the prosecution case cannot be doubted for non- examining the independent witnesses."
101. Thus, in view of the settled legal position, the testimony of the police officials examined in the instant case cannot be seen with suspicion merely for the reason of non joining of independent witness as firstly it is clear that efforts were made by the PW-7 Inspector Sanjay Neolia to join investigation. Secondly, the testimonies of the police officials do not suffer from any material contradiction. Thirdly, no animosity between the accused and the police officials has been pointed out. Therefore, even otherwise, there is no reason to disbelieve the testimonies of police officials regarding reason of non joining of public witnesses and the prosecution case SC No. 1023/2016 Page 53 of 59 State vs. Mohd. Hasin @ Pahalwan Judgment dt.12.07.2024 cannot be doubted for non-examining the independent witnesses.
102. The Ld. Defence Counsel during course of the arguments has also pointed out that street light available at the spot has not been shown in the site plan and it casts doubt on the story of the prosecution regarding apprehension of the accused from the spot.
103. In this regard, PW-7 Inspector SI Sanjay Neolia has stated in his cross-examination that street light was available at the place where the accused was apprehended. He further stated that in the site plan prepared by SI Dinesh, no point is shown qua street light. Similarly, PW-10 Inspector Dinesh Kumar, the 2 nd IO stated in his cross-examination that there was source of light of street light at the spot under which he prepared the site plan. He further stated that he did not mention this fact in site plan.
104. However, if the street light has not been shown in the site plan prepared by SI Dinesh Kumar, the prosecution case does not become doubtful when the prosecution has duly proved the recovery of contraband from the possession of the accused from the spot which is evident from the testimonies of recovery witnesses whose testimonials could not be impeached by the Ld. Defence Counsel as narrated above.
105. The Ld. Defence Counsel has also vehemently assailed the sampling done by the 1st IO PW-7 Inspector Sanjay Neolia during course of the arguments. He SC No. 1023/2016 Page 54 of 59 State vs. Mohd. Hasin @ Pahalwan Judgment dt.12.07.2024 contended that sampling was done in violation of Section 52 A (2) of the NDPS Act and the 1 st IO should have drawn the samples before the Magistrate and for non compliance of the said mandatory provision, the entire prosecution case against the accused stands vitiated and on this count only, the accused is liable to be acquitted.
106. It is a matter of record that samples of the contraband recovered from the possession of the accused were drawn by SI Sanjay Neolia, the 1st IO at the spot. Now, it has to be seen as to whether the act of drawing samples by the 1st IO without taking recourse to the provisions of sub-section 2 of Section 52A of the NDPS Act has rendered the entire prosecution against the accused vitiated as argued by the Ld. Defence Counsel.
107. In Simaranjit Singh vs. State of Punjab, Criminal Appeal No. 1443 of 2023 decided on 09.05.2023, similar issue was raised by the Ld. Counsel for the appellant that the prosecution is vitiated as the work of drawing sample was done by PW-7 without taking recourse to sub-section 2 of Section 52A of the NDPS Act.
108. The Hon'ble Apex Court while referring to paragraphs 15 to 17 of its decision in Union of India vs. Mohanlal & Anr., (2016) 3 SCC 379 observed as under: -
"9. Hence, the act of PW-7 of drawing samples from all the packets at the time of seizure is not in conformity with the law laid down by this Court in the case of Mohanlal. This creates a serious doubt about the prosecution's case that substance recovered was a contraband".SC No. 1023/2016 Page 55 of 59
State vs. Mohd. Hasin @ Pahalwan Judgment dt.12.07.2024
109. With these observations, the Hon'ble Apex Court held that the the case of the prosecution is not free from suspicion and the same has not been established beyond a reasonable doubt; accordingly set aside the impugned judgments and quashed the conviction and sentence of the appellant in that case.
110. In Yusuf @ Asif vs. State, Criminal Appeal No. 3191 of 2023 decided on 13.10.2023, a case was registered in the year 2000 on the basis of information received by the Intelligence Officer of Narcotics Control Bureau. As per the information, a vehicle was intercepted on 28.03.2000 and four persons present in the vehicle were found in possession of commercial quantity i.e. 20 kilogram of heroin. After trial, all the said four persons were held guilty under the provisions of NDPS Act and they were sentenced to rigorous imprisonment for 10 years and to pay fine of Rs. 1 lakh each, in default to undergo further imprisonment of one year. The said conviction was confirmed by the Hon'ble High Court by dismissing the appeal preferred by all the four convicts holding that there was no error in the findings of the Trial Court. Aggrieved by his conviction and sentence, one of the convicts has preferred an appeal before the Hon'ble Apex Court.
111. The Hon'ble Supreme Court taking note of provisions of Section 52A(2), (3) and (4) of the NDPS Act, held as under: -
SC No. 1023/2016 Page 56 of 59State vs. Mohd. Hasin @ Pahalwan Judgment dt.12.07.2024
12. A simple reading of the aforesaid provisions, as also stated earlier, 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 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.
13. Notwithstanding the defence set up from the side of the respondent in the instant case, no evidence has been brought on record to the effect that the procedure prescribed under sub-sections (2), (3) and (4) of Section 52A of the NDPS Act was followed while making the seizure and drawing sample such as preparing the inventory and getting it certified by the Magistrate. No evidence has also been brought on record that the samples were drawn in the presence of the Magistrate and the list of the samples so drawn were certified by the Magistrate. The mere fact that the samples were drawn in the presence of a gazetted officer is not sufficient compliance of the mandate of sub-section (2) of Section 52A of the NDPS Act.
14. It is an admitted position on record that the samples from the seized substance were drawn by the police in the presence of the gazetted officer and not in the presence of the Magistrate.
There is no material on record to prove that the Magistrate had certified the inventory of the substance seized or of the list of samples so drawn.
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 SC No. 1023/2016 Page 57 of 59 State vs. Mohd. Hasin @ Pahalwan Judgment dt.12.07.2024 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.
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 stands vitiated.
112. In view of proposition of law laid down by the Hon'ble Apex Court in the aforesaid judgments, it is clear that if samples of the seized contraband are not drawn in the presence of the Magistrate and the inventory of the seized contraband is not duly certified by the Magistrate as required under Section 52A (2) of the NDPS Act, the whole trial against the accused stands vitiated.
113. In the instant case, it has come on record from the testimonies of recovery witnesses that PW-7 Inspector Sanjay Neolia, the 1st IO after seizure of contraband, drew samples on the spot. He after seizure of the contraband did not send it to the officer as required under Section 53 of the Act nor inventory of the seized contraband was prepared by the Officer as mentioned in SC No. 1023/2016 Page 58 of 59 State vs. Mohd. Hasin @ Pahalwan Judgment dt.12.07.2024 sub section (1) of Section 52A nor the samples were drawn in the presence of the Magistrate nor the samples so drawn at the spot have been certified by the Magistrate to be correct. It is, thus, evident that the IO did not follow the procedure as laid down under Section 52A(2) of the NDPS Act while drawing the samples and there is violation of said mandatory provision. Hence, the accused is liable to be acquitted on this ground alone as has been done by the Hon'ble Apex Court in the judgments cited supra.
114. Accordingly, accused Mohd. Hasin @ Pahalwan is acquitted of the offence punishable under Section 21 of the NDPS Act. Bail bonds furnished by him under Section 439 Cr.P.C. stands cancelled and his surety is discharged. The bail bonds furnished by him under Section 481 (1) BNSS, 2023 (earlier 437A Cr.P.C) in the sum of Rs.10,000/- are accepted, which shall remain in force for a period of six months.
115. File be consigned to Record Room after necessary compliance. Digitally signed by BALWANT BALWANT RAI BANSAL RAI Date:
BANSAL 2024.07.16
16:21:34
+0530
Announced in the open Court
on 12th July, 2024 (Balwant Rai Bansal)
Special Judge (NDPS Act), Shahdara
Karkardooma Courts, Delhi
SC No. 1023/2016 Page 59 of 59
State vs. Mohd. Hasin @ Pahalwan Judgment dt.12.07.2024