Delhi District Court
Ncb vs Athar Pervez Ors on 30 July, 2024
IN THE COURT OF SUDHIR KUMAR SIROHI:ASJ
(SPECIAL JUDGE) (NDPS ACT): NEW DELHI DISTRICT:
PATIALA HOUSE COURTS:NEW DELHI
DLND010004162013
NCB Vs. : ATHAR PARVEJ & ORS.
SC No. : 8867/2016
CNR No. : DLND01-000416-2013
Date of Institution : 31.10.2013
Date of Judgment reserved on : 12.07.2024
Date of Judgment : 30.07.2024
Brief details of the case
A) Session Case No. : 8867/2016
B) Offence complained : 22,23,9A, 25A and 29 of
of or proved NDPS Act
C) Date of Offence : 22.08.2013
D) Name of the complainant: Mr. Pradeep Singh IO
E) Name of the accused : 1. Athar Pervez
s/o Sh. Hasiburrehman
r/o 132, KV Sub-Station
Mohan Nagar, Sahibabad,
Ghaziabad, UP.
2. Viqar Ahmed
s/o Sh. Farooqh Ahmad
r/o VPO, Ujhari,
PS-Nagli, Tahsil Hasanpur,
Distt. JP Nagar, Uttar
Pradesh
3. MBI Victor
(judgment not passed
against the accused).
4. Manoj Basoya
s/o Sh. Jagdish Basoya
r/o A 212, Rajiv Colony,
Mohan Nagar, Sahibabad,
Ghaziabad, Uttar Pradesh
F) Plea of the accused : Pleaded not guilty
NCB Vs Athar Parvej & Ors.
SC No. 8867/2016
Page No. 1 of 40
G) Final order : Acquittal
H) Date of Judgment : 30.07.2024
JUDGMENT
Brief facts mentioned in the charge-sheet This judgment is delivered against only accused Athar Parvez. Viqar Ahmed and Manoj Basoya under Section 353(6) CrPC.
1. Brief facts of the case are that a secret information received by the NCB officials on 21.08.2013 that the accused persons Athar Parvez and Viqar Ahmed will be coming near Mc Donald's, New Friends Colony, New Surya Hotel, New Delhi to deliver narcotic drugs in their Santro car between 2300 to 2330 hours, both the aforesaid persons were apprehended by NCB officers and two bags were recovered from their car bearing no. UP-14-AZ 3972. One bag was found containing 30 Kg of a substance and the other bag was found containing 2.5 Kg of another substance and as per the test conducted with the help of Field Testing Kit the 30 kg of substance was found to be pseudoephedrine while the 2.5 kg of the substance was found to be Methaqualone. Pursuant to their apprehension both the accused persons were issued summons u/s 67 NDPS Act and accused Athar Parvez assertedly inter alia disclosed that he used to export pseudoephedrine and methaqualone through the courier services provided by Amrinder and pursuant to the said statement of Athar Parvez, a raid was conducted at the office of Amrinder Kumar (discharged) and Amrinder on being enquired by the NCB officials produced before them two parcels which had been NCB Vs Athar Parvej & Ors.
SC No. 8867/2016 Page No. 2 of 40booked by accused Athar Parvez with him and the said parcels were found containing 24.700 kg. of methaqualone on being tested by Field Testing Kit. Accused Athar Parvez had inter alia also disclosed that he used to supply pseudoephedrine to one Victor who was involved in manufacturing of methaqulone and recently he had supplied 15 kg. of pseudoephedrine to Victor. Pursuant to the said statement of Athar Parvez, a raid was conducted and accused Victor was apprehended but nothing incriminating was recovered from his possession or his house. Accused Athar Parvez has also disclosed regarding the involvement of accused Manoj Basoya as one of the main abettor and conspirator for the commission of offence and pursuant to the said statement of Athar Parvez, a raid was conducted and accused Manoj Basoya was apprehended but nothing incriminating was recovered from his possession or his house. However statement of all the said accused were recorded u/s 67 NDPS Act by the NCB officials. The sample that was taken out of the bag that was recovered from the said Santro car which assertedly contained pseudoephedrine, when sent to CRCL, Delhi tested positive for the said substance i.e. pseudoephedrine. However, the samples that were taken out of the bag that was recovered from the Santro car and the parcels that were recovered from Amrinder, which assertedly contained methaqualone, when sent to CRCL, Delhi did not test positive for the said substance. In its report the Chemical Examiner of the CRCL opined that on the basis of chemical examination the presence of methaqualone could not be ascertained in the samples sent and that for want of characterization facilities, the exact identification of the samples could not be ascertained. Thereafter on an application filed by the NCB Vs Athar Parvej & Ors.
SC No. 8867/2016 Page No. 3 of 40NCB, they were permitted by Ld. Predecessor vide order dated 17.10.2013 to send the duplicate samples taken from the said bag and the parcels to CFSL, Hyderabad for further analysis. In the meantime, NCB filed complaint against the accused persons on 22.10.2013. Amrinder Kumar moved an application seeking bail and vide order dated 31.10.2013 Ld. Predecessor court granted interim bail to him till the report from CFSL, Hyderabad is received. On 20.02.2014 report from CFSL, Hyderabad was filed and as per the said report dated 10.01.2014, the duplicate samples tested positive for methamphetamine. In view of the said report of CFSL, Hyderabad, Amrinder who was on interim bail, was taken into custody. Thereafter accused Amrinder Kumar moved an application seeking retesting of case property in view of the contradiction between report of CRCL, Delhi and report of CFSL, Hyderabad and Ld. Predecessor court vide order dated 11.09.2014 held that in view of the said discrepancy retesting in respect of both the said case property had become necessary and on 27.10.2014 samples were drawn from both the said case properties i.e. bag recovered from the Santro car and parcels recovered from Amrinder and the same were directed to be sent to CRCL, New Delhi for chemical analysis. As per the CRCL report dated 28.11.2014 the sample taken out of the bag recovered from the said Santro car had tested positive for methamphetamine hydrochloride. However in the other sample (i.e. the sample taken out from the parcel recovered from Amrinder) the presence of diacetylmorphine (heroin), morphine, aphedrine, pseudoephedrine, catamine, cocaine, amphetamine, methamphetamine and methaqualone could not be ascertained but simultaneously the said lab opined that for want of NCB Vs Athar Parvej & Ors.
SC No. 8867/2016 Page No. 4 of 40characterization facilities, exact identification of sample could not be ascertained and therefore to rule out the possible presence of any narcotic drug and psychotropic substance in the sample under reference, the same may be forwarded to CFSL, Hyderabad for its characterization. In this background NCB moved an application dated 05.02.2015 seeking permission to draw fresh sample from the seized substance recovered from Amrinder Kumar and to send the same to CFSL, Hyderabad to find out the exact identification of the substance but the said application was dismissed by this court vide detailed order dated 28.02.2015. One of the person namely Amrender Kumar was discharged by the Ld. Predecessor vide order dated 28.01.2016
2. On appearance of the accused persons copies of documents were supplied to accused persons. Charge for committing offence punishable under Sections 25A and 22(c) NDPS Act was framed against accused Athar Parvez and Viqar Ahmed while charge u/s 29 r/w 8 & 9A of NDPS Act was framed against accused Athar Parvez, MBI Victor and Manoj Basoya by Ld. Predecessor vide order dated 28.01.2016, to which accused persons pleaded not guilty and claimed trial.
3. To prove its case the prosecution has examined 24 witnesses. Prosecution witnesses correctly identified the accused persons in the court.
Prosecution Evidence:-
For brevity only evidence of important witnesses discussed.
4. PW1 Mr. Rajesh Kumar deposed that on 21/8/2013 he was posted as Intelligence Officer in NCB DZU, R.K. Puram, NCB Vs Athar Parvej & Ors.
SC No. 8867/2016 Page No. 5 of 40New Delhi. On that day he received an information regarding one person namely Athar Parvez aged about 31 years and one another person namely Viqar Ahmad aged about 30 years, height about 5'8" will come in silver colour Santro registration bearing no. UP 14 AZ 3972 at Mc Donalds, New Friends Colony, near Surya hotel between 2300 hours to 2330 hours. Information (Ex PW1/1) was reduced into writing by PW1 and put up before the Superintendent Sh. Jai Kishan at about 1600 hours. Sh. Jai Kishan, Superintendent marked that information to Sh. Pradeep Singh, IO and he also issued search authorization in his favour to search the car as well as the aforesaid two persons. IO Pradeep Singh requested PW1 to join the raiding team at about 2200 hours. They along with IO Sh. Vishwanath Tiwari, Azad Singh, IO, Mahender Sepoy left the office of NCB, DZU in govt. vehicle bearing no. 5143 make Bolero. Before leaving, IO Pradeep Singh took all accessories required in seizure and DD kit etc. They reached Mc Donalds New Friends Colony at about 2230 hours. After reaching there, IO Pradeep Singh contacted passersby and shared the information with them to become independent witness during search and seizure proceedings. He contacted 5-6 persons but only one person namely Upadhyay agreed to become as independent witness during search and seizure proceedings. After that they mounted the surveillance near Mc Donalds at about 2330 hours the aforesaid Santro car occupied by two persons came there and stopped for few moments, thereafter it started moving towards main road. One of their team member signaled the said car to stop but instead of stopping he raised the accelerator of the car. After that the raiding team members along with public witness sat in the Bolero, NCB Vs Athar Parvej & Ors.
SC No. 8867/2016 Page No. 6 of 40chased the said car and also gave repeated signals to stop the car but they did not stop the car. The said car took turn towards Maharani Bagh colony, near gate no. 1 in B block. Before the said car reached to Maharani Bagh colony, the said car crashed with one unknown motor cycle even then they did not stop the said car. The road was blocked in block B and the said car took U turn from right side. Since they were chasing the said car also reached there and collided with the said car, however nobody was injured in the said collusion. Thereafter both the occupants of the car came out of the car and at that time IO Pradeep Singh asked them to reveal their identity and to this they informed their names as Athar Parvez, who was driving the vehicle and other person revealed his name as Viqar Ahmad. After that IO Pradeep Singh shared the information with them and also showed the search authorization to both of them. IO Pradeep Singh issued notice u/s 50 NDPS Act to accused Athar Parvez, IO Azad singh notice u/s 50 NDPS Act to Viqar Ahmad and apprised both of them about their legal rights to be searched before the Magistrate and the Gazetted officer if they wanted but both declined. On their personal search no incriminating material was recovered from their body. After that the search of Santro car was conducted and on opening the dicky of the said car two bags - one green colour big size and one black colour were recovered. On opening green colour bag, 5 transparent polythene bags were recovered filled with white crystalline powder. IO Pradeep Singh tested the crystalline powder from each packet separately and the same were given positive result for Pseudoephedrine. All the material of the five packets was transferred in a gunny bag and weighed and its weight came out to be 30 kg. Thereafter two samples of NCB Vs Athar Parvej & Ors.
SC No. 8867/2016 Page No. 7 of 40five grams each were taken out from the said substance and put into a zip lock pouch, thereafter kept in white envelopes were given mark A1 and A2. The remaining material were kept in the same gunny bag and tied the mouth of the gunny bag with the string and put in same green colour bag along with packing material and the same was converted into a cloth pullanda and was given mark A. After that the black colour bag was opened. On opening black colour bag, 2 transparent polythene bags were recovered filled with off white colour powder. IO Pradeep Singh tested the crystalline powder from each packet separately and the same were given positive result for Methaqualone. All the material of the two packets was transferred in a bag and weighed and its weight came out to be 2.5 kg. Thereafter two samples of five grams each were taken out from the said substance and put into a zip lock pouch and thereafter kept in white envelopes and were given mark B1 and B2. The remaining material were kept in the same bag and tied the mouth of the bag with the string and put in same black colour bag along with packing material and the same was converted into a cloth pullanda and was given mark B. All the aforesaid packets were pasted with paper slips signed by accused Athar Parvez and Viqar Ahmad, public witness and IO Sh. Pradeep Singh then sealed with the seal of NARCOTICS CONTROL BUREAU DZU-4. IO Pradeep Singh prepared test memo in triplicate at the spot and also drawn the panchnama in this regard. Panchnama was concluded at about 0230 hours in the intervening night of 21/22 August, 2013. PW1 issued summons u/s 67 of NDPS Act dated 22/8/2013 to accused Athar Parvez (ExPW1/2). Since their Bolero vehicle was not functional after the impact, IO Pradeep Singh called another vehicle from the NCB Vs Athar Parvej & Ors.
SC No. 8867/2016 Page No. 8 of 40office. Both the aforesaid accused persons requested the NCB officers to take them to NCB office for the purpose of their statement as they are not aware of the location of NCB office. On 22/8/2013 PW1 engaged M/S Abhi Cranes for bringing the damaged Bolero jeep Maharani Bagh to NCB office and gave a sum of Rs.1500/- for the same. PW1 also arranged a sum of Rs.300/- for getting the mechanical inspection of the vehicles. The photostat copies of payment receipt/bill for the aforesaid payment (mark A and B) as the originals of the said bills were deposited with the accounts department of NCB for its payment to the respective persons. PW1 also issued a summon u/s 67 of NDPS Act to Yogesh Midha @ Vicky (ExPW1/3).
5. PW2 Sh. Pardeep Singh deposed that on 21.08.2013, he was working as intelligence Officer at NCB, DZU, R.K Puram, New Delhi. On that day, at about 4.15-4.30 PM, Sh. Jai Kishan, Supt. called him in his cabin and at that time, Sh. Rajesh Kumar, IO was also sitting with him. Sh. Jai Kishan, Supt, marked a secret information to PW2 which was forwarded by Sh. Rajesh Kumar, IO to the superintendent. Superintendent also directed PW2 to constitute a team to take further necessary action in this matter. PW2 read the said information which was briefed to him by the superintendent and came to know that in the present case, search to be conducted today night itself. The said information was about two persons namely Athar Parvez, aged about 31 years and Viqar Ahmad, aged about 30 years, 5'.8" feet in height will come in their silver colour Santro car bearing no. UP14AZ-3972 to deliver Narcotic drugs near Mc-Donald Restaurant near Surya Hotel, New Friends Colony, New Delhi between 11.00 PM to NCB Vs Athar Parvej & Ors.
SC No. 8867/2016 Page No. 9 of 4011.30 PM (Ex. PW1/1). Acting on the basis of directions of superintendent, PW2 constituted a team of NCB officers consisting of himself, Sh. Rajesh Kumar IO, Sh. Azad Singh, IO, Sh. Vishwanath Tiwari IO, Sh. Mahender Singh Sepoy and Sh. Babu Lal driver. PW2 briefed the team about the information and requested them to remain present in the NCB office for the said information and for taking necessary action. After discussion with the team, it was decided that the team should leave for New Friends Colony at about 10.00 PM in the night. At about, 9.30 PM, PW2 collected all necessary items i.e field testing kit, IO kit etc. required for search and seizure and thereafter PW2 went to Mr. Jai Kishan, Suptd for issuance of seal and search authorization. He issued seal NARCOTICS CONTROL BUREAU DZU-4 at 21.50 hours and entry to this effect was made in the seal movement register, PW2 also put his dated signatures in the relevant column (Ex. PW2/1). PW2 also collected search authorization from Sh. Jai Kishan, Suptd for the search of the Santro car and the persons named above and the said search authorization (Ex. PW2/2). They left the NCB office in government vehicle bearing no. CH01-GA-5143, make Bolero for Mc-Donald Restaurant, New Friends Colony at about 10.00 PM and reached nearby the aforesaid Restaurant at about 10.30 PM after getting down from the Bolero car and before reaching near Mc- Donald Restaurant, PW2 requested 5-6 passersby to join NCB team as witness during search and seizure proceedings after introducing themselves and sharing their information with them. Since it was the time of late night and as such one person namely Mr Pramod Upadhyay agreed to rejoin as independent witness with the NCB team and other persons left the place NCB Vs Athar Parvej & Ors.
SC No. 8867/2016 Page No. 10 of 40showing their inability to become the independent witness in this case. The NCB officials and the independent witness spread near the Mc-Donald Restaurant in eye contact and mounted surveillance there, started waiting for the aforesaid vehicle and persons. At about 11.35 PM, the aforesaid silver colour Santro car occupied by the two persons reached near Mc-Donald Restaurant. The said car stopped near Mc-Donald Restaurant for a while thereafter the car started moving towards the main car. The NCB team signaled the said car to stop but the said car did not stop, on non stopping of the said car, NCB team along with independent witness rushed immediately in the Bolero which was ready to move and started chasing the aforesaid Santro car. The Santro car took turn on C.V Raman Marg to escape. After covering few Kilometers, the said Santro car turned on the left side in Maharani Bagh Colony thereafter entered in B-Block of Maharani Bagh. The Santro car entered in B-Block from gate no.1 thereafter the Santro car hit one unknown motorcycle but the Santro car did not stop. The car further went inside B-Block, reached at the dead end and then took sharp U turn on the right side. Both the vehicle i.e. the said Santro car and Bolero car collided face to face in front of house no. B-104. None of the occupants of both the aforesaid vehicles sustained any injury. They encircled the aforesaid Santro car. Accused Athar Parvez was sitting on the driver seat and accused Viqar Ahmad was sitting next to the driver seat. Both the accused got down from the Santro car. PW2 gave introduction of himself and of other team members. PW2 also shared with them the information with him of this case and also took their identification and they revealed their names as Athar Parvez and Viqar Ahmad. Then, NCB Vs Athar Parvej & Ors.
SC No. 8867/2016 Page No. 11 of 40PW2 showed them the search authorization (Ex. PW2/2) to both accused and the witness. Thereafter, PW2 gave notice u/s 50 of NDPS Act (Ex PW2/3) to accused Athar Parvez and also explained him about his legal rights that if he wanted his search could be conducted in presence of Magistrate or gazetted officer and for which he declined, made endorsement to this effect on the notice and same was also signed by independent witness. Similarly, Sh. Azad Singh IO gave notice u/s 50 of NDPS Act to accused Viqar Ahmad and also explained him about his legal rights. They both offered their search to both the accused persons and witness before taking the search of the aforesaid accused persons which they declined. Thereafter, PW2 took the personal search of accused Athar Parvez and found a driving license pertaining to him from his pocket and no drugs were recovered from his search of his body. Similarly, nothing incriminating was recovered to Sh. Azad Singh, IO on the personal search of accused Viqar Ahmad. Thereafter, they took the search of Santro car and on searching Dicky of the car they found two bags i.e. one green colour trolley bag make of Carry Polo and small black colour carry bag make Herbalife and both bags were taken out of the Santro car. Firstly they opened the green colour Trolley bag. They found 5 packets containing white crystalline powder in transparent polythene. Thereafter, PW2 took one packet and on opening, PW2 took a pinch of powder and tested the same with the help of field testing kit which gave positive test for Pseudoephedrine and thereafter the remaining fours packets were also tested with the help of field testing kit one by one on taking pinch of powder from the said packets. On testing all gave positive test for Pseudoephedrine. The powders of all the NCB Vs Athar Parvej & Ors.
SC No. 8867/2016 Page No. 12 of 40aforesaid five packets were identical in its nature, texture and colour and all had given positive test for Pseudoephedrine therefore the powder of all the aforesaid packets was collected in one plastic gunny bag. The gunny bag was weighted and found 30 Kgs. The aforesaid powder was homogeneously mixed and thereafter took two samples of five grams each and the same were kept separately in small zip lock plastic pouch and thereafter they were separately kept in two white envelops marked A1 and A2. The mouth of the plastic gunny bag was closed by sutli and the said gunny bag was kept in green colour trolley bag. The bag was then wrapped in a white markin cloth and the same was given mark A. Thereafter, PW2 opened the black colour carry bag and on opening the said bag, PW2 found two transparent polythene containing off white Crystalline powder. PW2 took a small pinch of powder from one of the said transparent polythene and tested with the help of field testing kit, the same gave positive test for Methaqualone. Similarly the second packet was opened and small pinch of powder was taken for testing and on testing with the help of field testing kit, it also gave positive test for Methaqualone. The powders of aforesaid two packets were identical in its nature, texture and colour and all had given positive test for Methaqualone therefore, powder of both the aforesaid packets was collected in one transparent polythene. The polythene was weighted and found 2.5 Kgs. The aforesaid powder was homogeneously mixed and thereafter took two samples of five grams each and the same were kept separately in small zip lock plastic pouch and thereafter they were separately kept in two white envelops and they were marked B1 and B2. The mouth of the transparent polythene was NCB Vs Athar Parvej & Ors.
SC No. 8867/2016 Page No. 13 of 40closed by plastic string and the said transparent polythene was kept in the black colour carry bag. The bag was then wrapped in a white markin cloth and the same was given mark B. The white paper slips were affixed on A1, A2, A, B1, B2 and B and the same paper slips were then affixed on the aforesaid marked parcels then same were sealed with the seal of NARCOTICS CONTROL BUREAU DZU-4. All the aforesaid packets were taken into possession for further investigation. PW2 also prepared test memo forms in triplicate at the spot. PW2 also affixed the seal impression on the punchnama and on the test memo forms. On further search of the santro car, PW2 found registration certificate of the car, insurance, pollution certificate from the dash board and the same were taken into possession along with the driving license which was recovered from his personal search. The car was also seized by PW2. PW2 prepared the punchnama of the entire proceeding took place at the spot and the same was read over and explained to the aforesaid accused persons and witness by PW2 then obtained their signatures on RC, insurance, pollution, driving license and punchnama (Ex. PW2/4), the driving license (Ex. PW2/5), RC (Ex. PW2/6), insurance (Ex. PW2/7), pollution (Ex. PW2/8). The office copy of test memo form (Ex. PW2/9). On 26/8/2013 PW2 sent an intimation of the arrest of one of the accused namely M.B.I. Victor to the Secretary, Ministry of External Affairs along with its format of information and copy thereof to the Secretary Foreign Division, Ministry of Home Affairs on behalf of the Superintendent (ExPW2/17). On 27/8/2013 the public witness Sh. Pramod Upadhyay gave his voluntarily statement in pursuance of notice u/s 67 of NDPS Act before PW2 and before NCB Vs Athar Parvej & Ors.
SC No. 8867/2016 Page No. 14 of 40the start of his statement, PW2 explained the provisions of Section 67 to him. Since he made the request to PW2 that he could not write himself therefore PW2 requested Sh. Bankey Ram, IO to write his statement (Ex PW2/18) on his dictation. Since PW2 took the custody remand of the accused Athar Parvez and he was in the custody of NCB for five days and after getting him medically examined from S.J. Hospital the further statement of accused Athar Parvez (Ex PW2/19) was recorded by PW2. Accused Athar Parvez also made his further statement before PW2 on 28/8/2013 (ExPW2/20) and 29.08.2013 (Ex PW2/21). On 29/8/2013 Sh. Parmeet Kumar one of the witness in this case appeared before PW2 in pursuance of the notice u/s 67 of NDPS Act for tendering his statement. PW2 explained him the provisions of Section 67 of the NDPS Act and also informed him that he has right to keep silent and thereafter he tendered his self written voluntary statement before PW2 (ExPW2/22). Accused Athar Parvez also made his further statement before PW2 on 30/8/2013 (ExPW2/23). On 3/9/2013 Sh. Parvinder Singh one of the witness in this case appeared before PW2 in pursuance of the notice u/s 67 of NDPS Act for tendering his statement. PW2 explained him the provisions of Section 67 of the NDPS Act and also informed him that he has right to keep silent and thereafter he tendered his self written voluntary statement (Ex PW2/24) before PW2. On the same day, Sh. Laxman Gupta one of the witness in this case appeared before PW2 in pursuance of the notice u/s 67 of NDPS Act for tendering his statement. PW2 explained him the provisions of Section 67 of the NDPS Act and also informed him that he has right to keep silent and thereafter he tendered his self written voluntary statement (Ex PW2/25) NCB Vs Athar Parvej & Ors.
SC No. 8867/2016 Page No. 15 of 40before PW2. On 5/9/2013 PW2 wrote letter to Nodal Officer, Idea Cellular for providing the CAF, CDR of mobile numbers 9718394490, 7836917140 and 7836917141 for the period 1/4/2013 to 21/9/2013 (ExPW2/26). Similarly, on the same date PW2 wrote letter to Nodal Officer, Aircel Ltd. Delhi for providing the CAF and CDR of mobile number 8802908396 for the period 1/4/2013 to 21/9/2013 (ExPW2/27). On 6/9/2013 PW2 wrote a letter to Nodal Officer, Vodafone Essar Mobile Service for providing the CAF and CDR for five mobile numbers for the period 1/8/2013 to 22/8/2013 (ExPW2/28). On 6/9/2013 PW2 received the CDR and CAF from Idea Cellular Phone along with certificate u/s 65 of Indian Evidence Act and received CDR of aforesaid numbers. On 13/9/2013 PW2 received the fax copy of intimation of service of the summon u/s 67 of the Act (ExPW2/35) to Yogesh Middha @ Vickey through Superintendent NCB Chandigarh. On 18/9/2013, Sh. Yogesh Middha @Vicky appeared before PW2 in pursuance of summons u/s 67 of NDPS Act and PW2 explained him the provisions of Section 67 of the Act and thereafter he tendered his voluntarily statement (ExPW2/36) and he also furnished documents of his company. On 7/10/2013 PW2 gave summons u/s 67 of the NDPS Act (Ex PW2/37) to Sh. Avsar Ahmad to appear in NCB office for his statement on 10/10/2013. On 16/10/2013 PW2 sent summon u/s 67 of the NDPS Act (Ex PW2/45) to Sh. Somesh Duggal of M/S Duggal Forex to attend the NCB office on 17/10/2013 at ten hours to tender his statement. PW2 also gave summons u/s 67 of NDPS Act (Ex PW2/46) to Sh. Praveen Kumar, Manager WUMT, Ghaziabad to tender his statement on 17/10/2013. On the same day PW2 went to PS New Friends NCB Vs Athar Parvej & Ors.
SC No. 8867/2016 Page No. 16 of 40Colony to collect the copy of DD from the said Police Station as someone has called to the police on telephone no. 100 when the vehicles collided with each other on 21/22 August, 2013. PW2 copied the DD no. 87 B dated 21/7/2013 from the rojnamcha maintained in Police Station New Friends Colony (ExPW2/47). PW2 gave the summons u/s 67 of NDPS Act (Ex PW2/48) to ASI Devinder Singh and the same was received by him. ASI Devender Singh who also came on the spot on that day i.e. 21/22 August, 2013 in response to the call given to telephone no. 100. Sh. Devender Singh, IO gave his self written statement (Ex PW2/49) before PW2 on the same day. PW2 also collected the delivery run sheet of trackon courier Sarita Vihar i.e. the details of persons received to the courier company of Amrinder (mark Z11). The reports/letters received by senior officers from FRRO, CRCL, CFSL, police, RTO, insurance company etc. were marked to PW2 either by Superintendent or by Zonal Director and all the said letters/reports had been filed in the complaint before this court. PW2 file complaint in court. PW2 correctly identified the case property. During deposition of PW2, one stitched cloth pullanda having mark A sealed with the seal of NARCOTIC CONTROL BUREAU DZU 4 produced by MHCM. A paper slip affixed on it bearing the particulars case no. VIII/22/DZU/2013. This paper slip (Ex PW2/54) sealed on three of the corners and one seal on one corner was missing. The pullanda cannot be opened without removing the seals. The pullanda opened and found to contain one green colour trolley bag make Carry Polo. On opening the green colour trolley bag, it was found containing plastic sack whose mouth tied with sutli and on opening the sutli a polythene bag and the mouth of which was closed with plastic NCB Vs Athar Parvej & Ors.
SC No. 8867/2016 Page No. 17 of 40string and the polythene packet contained white colour substance in hard form with big lumps. PW2 stated that this was the substance which was recovered from the green colour trolley bag kept in dicky of the Silver colour Santro car bearing no. UP 14 AZ 3972 when the same was occupied by accused Athar Parvez and Viqar Ahmad. PW2 further stated that at the time of recovery it was in the powder form. The trolley bag further contained five transparent polythene bags and PW2 stated that this substance was contained in these five transparent polythene bags which were kept in this bag. The cloth pullanda along with trolley bag and its contents (colly. ExP1). During deposition of PW2, one cloth pullanda having mark B bearing the particulars of case no. VIII/22/DZU/2013 sealed with the seal of court (AGB) produced and the same was opened on 27/10/2014. On opening the cloth pullanda it was found containing black colour carry bag having name of Herbalife and from the bag a transparent polythene bag containing off white colour crystalline substance and two polythene bags out of which one was zip lock and other was without zip lock were found. PW2 stated that the same was recovered from the dicky of the Silver colour Santro car bearing no. UP 14 AZ 3972 when the same was occupied by accused Athar Parvez and Viqar Ahmad. The paper slip (ExPW2/55) which was already taken on judicial record vide order dated 27/10/2014 bears the case number of this case. The cloth pullanda along with black colour carry bag along with its contents (colly. ExP2). During deposition of PW2, two envelopes mark A-1 and B-1 produced. During deposition of PW2, one envelope mark B-2 produced. PW2 stated that this is the envelope which was received from CFSL, Hyderabad. During NCB Vs Athar Parvej & Ors.
SC No. 8867/2016 Page No. 18 of 40deposition of PW2, one white envelope mark A-2 sealed with the seal of NARCOTIC CONTROL BUREAU DZU 4 produced. A paper slip affixed on it bearing the particulars case no. VIII/22/DZU/2013. The envelope cannot be opened without removing the seals. The envelope was opened and found containing one transparent zip lock pouch having white colour powdery substance. PW2 stated that the sample was drawn from the substance which was recovered from the green colour trolley bag kept in the dicky of the Silver colour Santro car bearing no. UP 14 AZ 3972 when the same was occupied by accused Athar Parvez and Viqar Ahmad (colly. ExP3). PW2 filed the analysis reports received from CFSL, Hyderabad after filing of the present complaint and the samples were sent for analysis. As per the directions and order dated 24/10/2016, PW2 took the digital photograph of car no. UP14AZ3972 (four in number showing all the sides of the car) (ExP4, ExP5, ExP6 and ExP7). PW2 analysed the CDR of all the mobile phone numbers of the accused persons and found that they were in touch with each other and hatched the conspiracy of the offence of this case.
6. PW4 Sh. Arun Kumar Maurya deposed that on 23.08.2013, he was posted as In-charge Narcotic section in CRCL, New Delhi. He allotted three samples brought by Sh. Vasudev Bhardwaj, Sepoy, NCB, New Delhi to Sh. Prashant Kumar, ACE, CRCL, New Delhi. The three samples marked as A -1, B-1 which contains the seal of NARCOTICS CONTROL BUREAU, DZU-4 and sample S-1 which contained the seal of NARCOTICS CONTROL BUREAU, DZU-2 along with their respective forwarding letters with test memo in duplicate. The NCB Vs Athar Parvej & Ors.
SC No. 8867/2016 Page No. 19 of 40seals on all the samples were in intact condition. Mr. Prashant Kumar, ACE after verification of the same, issued the acknowledgement receipt of the aforesaid samples (Ex. PW 4/1 and Ex. PW 4/2). The aforesaid receipts were handed over to Sh. Vasudev Bhardwaj, Sepoy. Thereafter the samples were registered as CLD 487(N) to sample A-1, CLD 488(N) to sample B-1 and CLD 489 (N) to sample S-1 and kept in strong room in presence of PW4 and PW4 was the custodian of said strong room. On 16.09.2013 the aforesaid test memos and samples were taken out from the Strong room and were re-allotted to Sh. Mukesh Kumar Gautam, ACE, CRCL after transfer of Sh. Prashant Kumar from Narcotics Section. The samples were opened and the weight of the samples were taken and analyzed. On opening the samples marked as A-1 was in the form of white crystalline powder and B-1 and S-1 were in the form of off-white powder. On the basis of chemical and chromatographic examination the sample marked as A-1 answered positive test for pseudo-ephedrine hydrochloride. Whereas the sample marked as B-1 and S-1 did not answer positive test for Methaqualone and the same were requested to be forwarded to CFSL, Hyderabad as the characterization facility in CRCL was not available. Thereafter the remnant samples were prepared with test report. The remnant samples were sealed with the seal of Central Revenue Control Laboratory, Govt. of India 2 and sent for dispatch to NCB, DZU New Delhi. The report for samples A-1 and B-1 (Ex. PW 4/3). The report for samples S-1 (Ex. PW 4/4). The test of aforesaid samples were conducted under control and supervision of PW4. During deposition of PW4, MHCM produced envelope A-1 having CLD 487 (N) sealed with the seal NCB Vs Athar Parvej & Ors.
SC No. 8867/2016 Page No. 20 of 40of Central Revenue Control Laboratory, Govt. of India 2 and on opening the same, it was found containing white powder in a transparent ziplock pouch. PW4 stated that it was the remnant of the sample which was examined by Sh. Mukesh Kr. Gautam under his supervision. This envelope along with the contents (Exhibited as Ex. P-8). During deposition of PW4, envelope B-1 having CLD 488 (N) produced by the MHC(M), NCB sealed with the seal of Central Revenue Control Laboratory, Govt. of India 2 and on opening the same, it was found containing off- white powder in a transparent ziplock pouch. PW4 stated that it was the remnant of the sample which was examined by Sh. Mukesh Kr. Gautam under his supervision. This envelope along with the contents (Exhibited as Ex. P-9). During deposition of PW4, envelope S-1 having CLD 489 (N) produced by the MHC(M), NCB sealed with the seal of Central Revenue Control Laboratory, Govt. of India 2 and on opening the same, it was found containing off-white powder in a transparent ziplock pouch. PW4 stated that it was the remnant of the sample which was examined by Sh. Mukesh Kr. Gautam under his supervision. This envelope along with the contents (Exhibited as Ex. P-10).
7. PW8 SI Rajbir Singh deposed that he had brought the roznamcha containing DD no. 87B dated 21.08.2013. The same was assigned to ASI Devender Singh. The aforesaid DD was recorded on the basis of information received from PCR about an assault. The copy of the same [already Ex.PW2/47 (OSR)].
8. PW12 SI Devender Singh deposed that on 21/22.08.2013, he was posted at PS New Friends Colony as ASI and he was on night emergency duty. DD No. 87 B was assigned to him by DO NCB Vs Athar Parvej & Ors.
SC No. 8867/2016 Page No. 21 of 40of PS New Friends Colony regarding a quarrel (already Ex PW2/47). After receipt of the aforesaid information, PW12 reached at the spot at gate no. 1, Maharani Bagh, New Delhi. PW12 contacted the caller of the call made to the police whose name was Mr. Parvender. He briefed PW12 about the facts of collusion of two vehicles i.e. Bolero car and Santro car. Bolero car hit the Santro car and consequently, the Santro car hit the motorcycle. After some discussion between them, the rider of motorcycle left the place before PW12 reached. Both the aforesaid vehicles were standing in front of Kothi no. 104. Both the aforesaid vehicles were damaged from front. The officials of Narcotic Control Bureau informed that they had caught two persons in a drug case. On 16.10.2013, PW12 had received a notice U/s 67 of NDPS Act from NCB office and in response thereto, PW12 went to NCB office and gave his written statement to the NCB officials (Ex PW 2/49) and the said statement was given before SI Pardeep.
Statement of the accused:
9. Statement of the accused persons were recorded under Section 313 Cr.P.C. and all the incriminating circumstances appearing in evidence were put to accused persons to which they denied all the incriminating circumstances. During 313 CrPC statement, accused persons submitted that recovery was planted upon them. Accused persons did not prefer to lead defence evidence then matter was fixed for final arguments.
Arguments:
10. Ld. SPP for NCB argued that it has been proved by the deposition of prosecution witnesses that the accused Athar NCB Vs Athar Parvej & Ors.
SC No. 8867/2016 Page No. 22 of 40Parvez and Viqar Ahmed was found in possession of 30kg of pseudophedrine and 2.5kg of methamphetamine on 22.08.2023 when they were apprehended after chase, they were transporting contraband in the vehicle bearing no. UP14AZ 3972 which belongs to co-accused Manoj while accused MBI victor and Manoj were converting pseudoephedrine into methamphetamine and methaqualone, the FSL report is positive for pseudoephedrine and methqualone even independent witness Mr. Pramod Upadhyay has deposed about the recovery from accused persons therefore, accused persons may be convicted for the charge framed.
11. Ld. Counsels for the accused Athar Parvez, Viqar, and Manoj Basoya argued that all these accused persons have been falsely implicated by the NCB and the NCB has failed to prove its case. It is further argued that there is violation of Section 52 A NDPS Act as the samples which were sent for forensic examination were not drawn before the Ld. Magistrate nor there is certificate of correctness of inventory as required u/s 52A NDPS Act by the Ld. Magistrate. It is further argued by the Ld. Counsel for these accused persons that there is violation of standing order of 1/88 & 1/89 as from the Sentro Car bearing no. UP14AZ 3972 firstly a green colour trolley bag was recovered in which 5 packets containing crystalline powder in transparent polythene was found and the sample A1 and A2 were drawn after mixing the contents of 5 bags, thereafter, another black colour carry bag was recovered in which two plastic polythene were found containing white crystalline powder and similarly the samples B1 and B2 were drawn after mixing the contents of two NCB Vs Athar Parvej & Ors.
SC No. 8867/2016 Page No. 23 of 40polythene, therefore, the mixing of contents as per order 1/88 & 1/89 is not allowed and even IO has not weighed the separate packets, therefore, it can not be said that all the packets were containing contraband.
12. It is further argued by the Ld. Counsel for accused persons that Section 42 NDPS Act has not been complied in the present matter as the accused Viqar Ahmed and Parvez were apprehended during midnight. It is also argued by Ld. Counsels for accused that PW8 ASI Rajbir proved the DD entry 87B and the same is w.r.t. quarrel and not w.r.t. recovery of contraband even PW12 SI Devender Singh who was assigned DD number 87B and deposed that he remained on the spot for 15-20 minutes but no contraband was seized by the NCB officials in his presence. It is further argued that PW20 Mr. Laxman Gupta who is the witness of prosecution has turned hostile and has not supported the case of prosecution, PW21 Mr. Parvinder who was security guard at the place where recovery was effected has also not been made a witness of recovery despite his presence on the spot, therefore, there is no independent witness of the seizure from the accused Athar and Viqar, this shows that the whole case has been manipulated by the NCB officials in order to falsely implicate accused Athar Parvez, Viqar, and Manoj Basoya and prays for acquittal of these accused persons.
13. Ld. counsels for accused persons relied upon following judgments titled as
a) Yusuf @ Asif Vs. State, Criminal Appeal no. 3191 of 2023 decided by Hon'ble Supreme Court of India on 13.10.2023.
NCB Vs Athar Parvej & Ors.
SC No. 8867/2016 Page No. 24 of 40b) Simarjit Singh Vs State of Punjab, SLP No. 1958/2023 dated 09.05.2023 Hon'ble Supreme Court of India Discussion:
Non compliance of Section 52A NDPS Act:
14. In the present matter, PW2 Mr Pradeep Singh IO has deposed that the samples Mark A1 and A2 were drawn from 30kg powder which gave positive result on spot for pseudoephedrine, sample Mark B1 and B2 were drawn from 2.5 kg of methamphetamine (on spot test was positive for methaqualone). The second IO PW13 Mr. Jai Kishan has deposed that on 23.08.2023 he sent the sample Mark A1 and B1 alongwith test memo in duplicate in chemical examiner, CRCL through Mr. Vasudev Bhardwaj. PW4 Mr. Arun Kumar Maurya, Chemical examiner has deposed that on 23.08.2023, the sample Mark A1 & B1 were received in CRCL New Delhi, therefore, in the present matter, the sample drawn on the spot by IO/PW2 Mr. Pradeep Singh were sent to CRCL for examination.
15. In Simarjit Singh Vs State of Punjab, SLP No. 1958/2023 dated 09.05.2023 Hon'ble Supreme Court of India held as:-
5. The learned counsel appearing for the appellant relied upon a decision of this Court in the case of Union of India v. Mohanlal & Anr. He submitted 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. He also pointed out that the examination-in-Chief of PW-7 SI Hardeep Singh which shows that the samples were drawn immediately after the seizure.
6.The learned counsel appearing for the respondent-State supported the impugned judgments.
NCB Vs Athar Parvej & Ors.
SC No. 8867/2016 Page No. 25 of 407.We have perused the evidence of PW-7 Hardeep Singhin which he has stated that from the eight bags of poppy husk, two samples of 250 gms each were drawn and converted into 16 parcels. This has been done immediately after the seizure.
8.In paragraphs 15 to 17 of the decision of this Court in Mohanlal's case, it was held thus:
"15.It is manifest from Section 52-A(2) include (supra) that upon seizure of the contraband the same has to be forwarded either to the officer-in-
charge of the nearest police station or to the officer empowered under Section 53 who shall prepare an inventory as stipulated in the said provision and make an application to the Magistrate for purposes of (a) certifying the correctness of the inventory, (b) certifying photographs of such drugs or substances taken before the Magistrate as true, and (c) to draw representative samples in the presence of the Magistrate and certifying the correctness of the list of samples so drawn.
16.Sub-section (3) of Section 52-A requires that the Magistrate shall as soon as may be allow the application. This implies that no sooner the seizure is effected and the contraband forwarded to the officer-in-charge of the police station or the officer empowered, the officer concerned is in law duty- bound to approach the Magistrate for the purposes mentioned above including grant of permission to draw representative samples in his presence,which samples will then be enlisted and the correctness of the list of samples so drawn certified by the Magistrate. In other words,the process of drawing of samples has to be in the presence and under the supervision of the Magistrate and the entire exercise has to be certified by him to be correct.
17.The question of drawing of samples at the time of seizure which, more often than not,takes place in the absence of the Magistrate does not in the above scheme of things arise. This is so especially when according to Section52-A(4) of the Act, samples drawn and certified by the Magistrate in compliance with sub-sections (2) and (3) of NCB Vs Athar Parvej & Ors.
SC No. 8867/2016 Page No. 26 of 40Section 52-A above constitute primary evidence for the purpose of the trial. Suffice it to say that there is no provision in the Act that mandates taking of samples at the time of seizure. That is perhaps why none of the States claim to be taking samples at the time of seizure."
9.Hence, the act of PW-7 of drawing samples from all the packets at the time seizure is not in conformity with the law laid down by this Court in the case of Mohanlal1.This creates a serious doubt about the prosecution's case that substance recovered was a contraband.
10.Hence, the case of the prosecution is not free from suspicion and the same has not been established beyond a reasonable doubt.
Accordingly, we set aside the impugned judgments insofar as the present appellant is concerned and quash his conviction and sentence.
In the judgment of Yusuf @ Asif Vs. State, Criminal Appeal No. 3191/2023 Hon'ble Supreme Court of India has held:
"11. For the sake of convenience, relevant sub- sections of Section 52A of the NDPS Act are reproduced hereinbelow:
"52A. Disposal of seized narcotic drugs and psychotropic substances.-
(1)______ (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 subsection (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 NCB Vs Athar Parvej & Ors.
SC No. 8867/2016 Page No. 27 of 40referred to in subsection (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 Magistrate for the purpose of-
(a) certifying the correctness of the inventory so prepared; or
(b) taking, in the presence of such Magistrate,photographs of [such drugs or substances or conveyances] and certifying such photographs as true; or(c) allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn.(3) Where an application is made under subsection (2), the Magistrate shall, as soon as maybe, allow the application.(4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872) or the Code of Criminal Procedure, 1973 (2 of 1974),every court trying an offence under this Act, shall treat the inventory, the photographs of [narcotic drugs, psychotropic substances, controlled substances or conveyances] and any list of samples drawn under subsection (2) and certified by the Magistrate, as primary evidence in respect of such offence."
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 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.
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 NCB Vs Athar Parvej & Ors.
SC No. 8867/2016 Page No. 28 of 40that 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 subsection (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 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 Union of India vs Mohanlal and Anr. (2016) 3 SCC 379 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 the refrom would not be a valid piece of primary NCB Vs Athar Parvej & Ors.
SC No. 8867/2016 Page No. 29 of 40evidence in the trial. Once there is no primary evidence available, the trial as a whole stands vitiated.
17. Accordingly, we are of the opinion that the failure of the concerned authorities to lead primary evidence vitiates the conviction and as such in our opinion, the conviction of the appellant deserves to be set aside. The impugned judgment and order of the High Court as well as the trial court convicting the appellant and sentencing him to rigorous imprisonment of 10 years with fine of Rs.1 lakh and in default of payment of fine to undergo further imprisonment of one year is hereby set aside."
In the present matter, the sample drawn by PW2 Mr. Pradeep Singh seizing IO were sent to CRCL and not the sample drawn before Ld. Magistrate as per Judgment of Simarjit (Supra) and Yusuf (supra), nor thereis any certificate of conrrectness of seizure inventory by Ld. Magistrate as per above referred judgments and Section 52A NDPS Act. In the case in hand, no 52A proceedings have been conducted, therefore, in absence of any material on record to establish that the samples of the seized contraband were drawn in presence of Ld. Magistrate and that the inventory of the seized contraband was duly certified by Ld. Magistrate, it is apparent that seized contraband and samples drawn are not a valid piece of primary evidence in trial [reliance placed on Yusuf (supra) judgment]. When there is no primary evidence available w.r.t. samples of contraband, then the whole trial vitiates and on this sole ground the accused persons are entitle to acquittal but other pleas of Ld. Counsels for accused persons are also discussed.
16. Therefore, samples which were sent to CRCL for forensic examination was drawn by IO/PW2 Mr. Sandeep Singh and these samples were not drawn before Ld. Magistrate nor there is any NCB Vs Athar Parvej & Ors.
SC No. 8867/2016 Page No. 30 of 40certificate of correctness of inventory of seizure memo by Ld. Magistrate as required under Section 52A NDPS Act and the said samples drawn before Ld. Magistrate would have been primary evidence w.r.t. contraband, therefore, there is violation of Section 52A NDPS Act and in absence of any primary evidence w.r.t. contraband, the trial stands vitiated as per Yusuf (supra) judgment.
Violation of standing order 1/88 & 1/89:
17. PW2 Pradeep Singh has deposed that "thereafter, we took the search of santro car and on searching Dicky of the car we found two bags I.e one green colour trolley bag make of Carry Polo and small black colour carry bag make Herbalife and both bags were taken out of the santro car. Firsly we opened the green colour Trolley bag. We found 5 packets containing white crystalline powder in transparent polythene. Thereafter, I took one packet and on opening, I took a pinch of powder and tested the same with the help of field testing kit and it gave positive test for Pseudoephedrine and thereafter the remaining fours packets were also tested with the help of field testing kit one by one on taking pinch of powder from the said packets. On testing all gave positive test for Pseudoephedrine. The powders of all the aforesaid five packets were identical in its nature, texture and colour and all had given positive test for Pseudoephedrine therefore the powder of all the aforesaid packets was collected in one plastic gunny bag. The gunny bag was weighted and found 30 Kgs. The aforesaid powder was homogeneously mixed and thereafter took two samples of five grams each and the same were kept separately in small zip lock plastic pouch and NCB Vs Athar Parvej & Ors.
SC No. 8867/2016 Page No. 31 of 40thereafter they were separately kept in two white envelops and they were marked A1 and A2. The mouth of the plastic gunny bag was closed by sutli and the said gunny bag was kept in green colour trolley bag. The bag was then wrapped in a white markene cloth and the same was given mark A. Thereafter, I opened the black colour carry bag and on opening the said bag, I found two transparent polythene containing off white Crystalline powder. I took a small pinch of powder from one of the said transparent polythene and tested with the help of field testing kit and the same gave positive test for Methaquolone. Similary the second packet was opened and small pinch of powder was taken for testing and on testing with the help of field testing kit, it also gave positive test for Methaquolone. The powders of aforesaid two packets were identical in its nature, texture and colour and all had given positive test for Methaquolone therefore, powder of both the aforesaid packets was collected in one transparent polythene. The polythene was weighted and found 2.5 Kgs. The aforesaid powder was homogeneously mixed and thereafter took two samples of five grams each and the same were kept separately in small zip lock plastic pouch and thereafter they were separately kept in two white envelops and they were marked B1 and B2."
18. Therefore, in the present matter it is apparent that individual weight of 5 transparent packets from green colour trolley bag and two transparent polythene from black colour carry bag were not taken by the IO/PW2, all the 5 packets from first bag gave positive test for pesudophedrine while 2 packets from second bag gave positve test for methaqualone (as per NCB Vs Athar Parvej & Ors.
SC No. 8867/2016 Page No. 32 of 40CRCL report found to be methamphetamine) and after they were mixed being of same nature, colour and texture, their weight came to 30 kg and 2.5 kg respectively then the sample A1, A2 & B1, B2 were drawn from them respectively. Even the IO did not bother to weigh the sample A1, A2 & B1, B2, therefore, neither the PW2 IO Pardeep Singh has deposed anything about the weight of the samples A1, A2 nor the PW4 Mr. Arun Kumar Maurya from CRCL has deposed about weight of the samples.
19. In the Laxman Thakur Vs. State Bail Appl. no. 3233/2022 decided on 14.12.2022" it was held by Hon'ble High Court of Delhi:-
"7.The judgment of Sumit Tomar (supra) has been duly considered by the Coordinate Bench of this Court titled in a judgment titled as „Santini Simone vs. Department of Customs‟ [2020 SCC OnLine Del 2128] and relevant paras read as under:
"57. In Sumit Tomar v. State of Punjab , (2013) 1 SCC 395, the Court was examining the case where according to the prosecution, two plastic bags containing „bhooki‟ opium powder were recovered from the dickey of the car. The contents of both the bags were mixed and two samples of 250 grams each were taken out. The remaining contraband weighing 69.5 kgs were sealed in two bags and the samples were sent to Forensic Science Laboratory for examination. It was contended on behalf of the appellant that the procedure followed by the concerned seizing officials was irregular and the alleged contraband could not be mixed and the samples taken thereafter. It was contended that since the punishment is based on the quantity of contraband recovered, mixing of substances from two bags was unacceptable. The said contention was rejected. The Court held that merely because different NCB Vs Athar Parvej & Ors.SC No. 8867/2016 Page No. 33 of 40
punishments have been prescribed depending on quantity of the contraband, the same has not caused any prejudice to the appellant. The Court reasoned that even after taking two samples of 250 grams each, 69.5 kgs of contraband was still available.
58. In Amani Fidel Cheri Vs. NCB, Criminal Appeal No. 1027/15 by Hon'ble High Court of Delhi it was held that:- four brown colour packets were allegedly recovered. The said packets contained powdery substances, which on being tested, yielded a positive result for heroin. The substances were then mixed properly and weighed with the help of an electronic machine and it was found that the same weighed 1.5 kgs. Thereafter, two samples of 5 grams each were drawn from the recovered substance and put into zip lock pouches. It was contended that the procedure adopted was not permissible. The procedure of transferring the contents of all four packets into one and then drawing a sample from the mixture had caused a serious prejudice, as it could not be ascertained whether the four packets contained the alleged narcotic. The Court found that the procedure adopted fell foul of the Standing Order No. 1/88 dated 15.03.1988 issued by the Narcotics Control Bureau (which was pari materia to Standing Order 1/1989 dated 13.06.1989, issued by Department of Revenue, Ministry of Finance, Government of India). The Court held that where more than one container/package is found, it is necessary that samples be drawn from each separate container/package and be tested with a field-
testing kit. If the container/packages are identical in shape, size and weight then lots of 10 or 40 container/packages may be prepared. Thereafter, representative samples from each container/package be drawn.
59. In Basant Rai (supra), a Coordinate Bench of this Court considered a case where the accused was allegedly found carrying a polythene bag, containing eight smaller polythene bags, NCB Vs Athar Parvej & Ors.
SC No. 8867/2016 Page No. 34 of 40containing a brown colour substance, which was alleged to be charas. The Investigating Officer had taken small pieces from each packet and mixed the same and thereafter, drawn two samples which were sent to FSL for analysis. The Court found fault with the said procedure and allowed the appeal. The Court held as under:
"25. After hearing both the learned counsel for parties and going through the Trial Court Record, I find force in the submission of learned counsel for appellant. Admittedly, the samples were drawn after breaking small pieces from 08 of the polythene bags which were allegedly kept in a green coloured bag by the appellant in his right hand. The IO prepared two samples of 25 grams each after taking a small quantity from each of the slabs.
26. Though the settled law is that if it is not practicable to send the entire quantity then sufficient quantity by way of samples from each of the packets of pieces recovered should be sent for chemical examination. Otherwise, result thereon, may be doubted.
27. For example, if the 08 packets were allegedly recovered from the appellant and only two packets were having contraband substance and rest 6 packets did not have any contraband; though all maybe of the same colour, when we mix the substances of all 8 packets into one or two; then definitely, the result would be of the total quantity and not of the two pieces. Therefore, the process adopted by the prosecution creates suspicion. In such a situation, as per settled law, the benefit thereof should go in favour of the accused. It does not matter the quantity. Proper procedure has to be followed, without that the results would be negative."
60. In Edward Khimani Kamau (supra), a Coordinate Bench of this Court rejected the procedure where the substance found in nine packets was transferred into one packet and two NCB Vs Athar Parvej & Ors.
SC No. 8867/2016 Page No. 35 of 40samples were drawn from the same. The Court held that it could not be ascertained that all nine packets contained heroin.
61. In Charlse Howell @ AbelKom (supra), the NCB had allegedly recovered 330 grams of heroin. The powder recovered was packed in 166 polythene strips, which were concealed in the laces/hem of two lehengas. The concealed powder from the 166 strips was collected in a transparent polythene and on weighing, it was found to be 330 grams. Two samples of five grams were drawn and put separately in zip lock polythene pouches. A Coordinate Bench of this Court following the decision of the Supreme Court in Union of India v. Bal Mukund, (2009) 12 SCC 161, held that the procedure adopted was not in conformity with the Standing Order 1/88 dated 15.03.1988, issued by the Narcotics Control Bureau."
8. I am of the view that as mandated by the Hon‟ble Supreme Court in judgment of „ Union of India vs. Bal Mukund & Ors.‟ [(2009) 12 SCC 161], standing order 1/88 has been opined to be a "requirement of law".
9. The 3 Bench judgment of Bal Mukund (supra) is binding on this Court.
10. Relevant portion of Standing order 1/88 reads as under:
"2.4 In the case of Seizure of a single package/container, one sample (in duplicate) shall be drawn. Normally, it is advisable to draw one sample (in duplicate) from each packet/container in case of seizure of more than one package/container."
11. The standing order 1/88 mandates that the transferring of content of all packets into one and then drawing a sample from the mixture is not permitted.
12. I am of the view that in the present case, the instructions in 1/88 has not been followed and the sample has been drawn after mixing the contents NCB Vs Athar Parvej & Ors.
SC No. 8867/2016 Page No. 36 of 40of various packets into one container. The same has caused serious prejudice to the case of the applicant. Since the collection of sample itself is faulty, the rigours of Section 37 of the NDPS Act will not be applicable."
20. In the abovesaid referred case of Laxman Thakur (supra), the Hon'ble High Court of Delhi relied upon the case of Amani Fidel Chris (supra) in which four brown colour packets were allegedly recovered on being tested they yield positive test for heroin then the substance was mixed properly and weighed 1.5 kg thereafter two samples of 5 grams were drawn, it was held by Hon'ble High Court of Delhi that the sample was not representative sample and was in violation of office order no. 1/88.
21. In the present matter also PW2 Mr. Pradeep Singh put the contents of 5 packets from first bag into one and also contents of second bag i.e. two packets into one though they all gave positive test for pseudoephedrine and methaqualone (as per CRCL methamphetamine respectively) then the mixture was mixed homogeneously and samples A1, A2 & B1 , B2 were taken respectively. PW2 has also deposed that all five packets of first bag and two packets of second bag were of same colour and texture, therefore the substance was mixed but the same is in violation of standing order no. 1/88 & 1/89. In standing order no. 1/89 wherein it has been mentioned that: "2.4 In the case of Seizure of a single package/container, one sample (in duplicate) shall be drawn. Normally, it is advisable to draw one sample (in duplicate) from each packet/container in case of seizure of more than one package/container."
NCB Vs Athar Parvej & Ors.
SC No. 8867/2016 Page No. 37 of 4022. The standing order 1/88 & 1/89 mandates that the transferring of content of all packets into one and then drawing a sample from the mixture is not permitted. Even otherwise also, the bunching is permissible as per standing order 1/88 & 1/89 into lots of 10 packages/containers except in case of Ganja and Charas in which the case 40 packages can be bunched into a lot, which is not the present case and in the present case even the weight of individual polythene packet was not taken by the IO, before mixing them, therefore, there is violation of standing order 1/88 & 1/89 during procedure of sampling by NCB officials and the sample sent to the CRCL were not the representative samples.
23. PW8 SI Rajbir proved DD number 87B dated 21.08.2023 (Ex.PW2/47) lodged in PS New Friends colony at 11:56 pm and the same is w.r.t. a quarrel/jhagda. The same was marked to PW12 SI Devender Singh who reached on the spot and found collusion of two vehicle Bolero and Sentro Cars but did not disclose anything about the recovery in his presence, though, he stated that he remained on the spot for 15-20 minutes and till that time no contraband was seized by the NCB officials. It is ironical that police officials who is not an NCB person reached on the spot and NCB officials informed him that they have got pseudoephedrine the same was disclosed by PW12 SI Devender Singh during cross examination by the accused Athar Parvez and during cross examination on behalf of accused Viqar Ahmad he deposed that he reached on the spot within 2-3 minutes and remained on the spot for 15-20 minutes while panchnama started at 0015 hours on 22.08.2023, therefore, if NCB officials has not seized the contraband in presence of PW12 who reached on the NCB Vs Athar Parvej & Ors.
SC No. 8867/2016 Page No. 38 of 40spot within 2-3 minutes as the DD entry was lodged at 11:56 pm then how NCB officials can tell that they have caught the accused persons with pseudoephedrine and there is no police report w.r.t. fact that the pseudoephedrine was recovered from accused Athar and Viqar nor PW12 SI Devender Singh has deposed he saw any bag lying in the vehicle or outside the vehicle and that too when it was the case of accident between two vehicles. The vehicle of NCB and accused Athar, Viqar, as per case of NCB, collided on the left side of gate opposite B-104 near gate 1 but despite that PW20 Mr. Laxman Gupta who was the NCB witness and was on duty at the gate has not deposed anything about the recovery rather he deposed that he wrote whatever was dictated to him in his statement u/s 67 NDPS Act. Even Mr. Parvinder Singh who was security guard at the gate no. 1 has also not deposed anything about the recovery of contraband from accused persons and the sole independent witness of the seizure Mr. Pramod Upadhyay was dropped by the NCB on 15.04.2024, therefore, the independent witnesses of NCB who have deposed in the court has not stated anything about the seizure from the accused Viqar and Athar and the person whose name is mentioned in seizure memo Ex.PW2/4 namely Mr. Pramod Upadhyay was dropped by NCB, therefore, there is no independent witness on record who can corroborate the versions of NCB officials and it is a fact that people gathered on the spot when the collision of NCB vehicle and accused Athar's vehicle took place. Even the testimony of PW12 Mr. Devender Singh also cast a doubt on the testimony of NCB officials that even being police officials no recovery was effected in his presence though he was present on the spot for 15-20 minutes, he reached NCB Vs Athar Parvej & Ors.
SC No. 8867/2016 Page No. 39 of 40on the spot within 2-3 minutes of DD entry 87B which was lodged at 11:56 pm on 21.08.2023 and panchnama was prepared at 0015 hours on 22.08.2013 by NCB officials.
Final verdict:
24. In view of the discussion above, due to violation of mandatory provision and discrepancy in the evidence of NCB officials, the department has failed to prove its case against the accused Athar Parvez, Manoj Basoya and Viqar Ahmed.
Accordingly, Athar Parvez and Viqar Ahmed are acquitted of the offence u/s 25A and 22 (c) NDPS Act, accused Athar Parvez and Manoj Basoya are also acquitted of the offence u/s 29 r/w Section 8 and 9A of NDPS Act.
25. Separate ordersheet for compliance of bail bond u/s 437-A CrPC has been passed.
Announced in the open court on 30th July 2024.
(SUDHIR KUMAR SIROHI) ASJ (SPECIAL JUDGE) NDPS Act, New Delhi District, PHC, ND NCB Vs Athar Parvej & Ors.
SC No. 8867/2016 Page No. 40 of 40