Delhi District Court
State vs Mohd. Wasim on 18 September, 2023
IN THE COURT OF SHRI ARUL VARMA, ASJ-04 AND
SPECIAL JUDGE (NDPS) SOUTH-EAST: SAKET COURTS:
NEW DELHI
CNR No. DLSE01-000049-2017
SC No 05/2017
FIR No. 620/2016
P.S. Jaitpur
State
Vs.
Mohd Wasim
S/o Sh. Mohd Nasim
R/o Jhuggi, Gali No 5 Joga Bai
Extension, Jamia Nagar
Okhla New Delhi
........ Accused
Date of Institution : 26.12.2016
Date of reserving the Judgment : 18.09.2023
Date of Judgment : 18.09.2023
JUDGMENT
FACTS IN BRIEF / CASE SET UP BY THE PROSECUTION
1. The facts as alleged by the prosecution, are hereby succinctly recapitulated. It was alleged that on 28.10.2016, at about 11:45 AM at Agra Canal Road, beneath Metro Station, Near Kalindi Kunj, PS Jaitpur the accused was found driving scooty No DL-3S-DE-0428 colour black which was carrying two kattas in which, total 18 Kgs 322 grams Ganja was found. Thereafter, the accused was arrested, and investigation was conducted. Whereafter, the present chargesheet came to be filed. FIR No620/2016 State Vs. Mohd Wasim Page No. 1/45
Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.09.18 16:28:14 -0300 CHARGES FRAMED QUA THE ACCUSED
2. Charges under section 20 b (ii) B of NDPS Act, were framed qua the accused to which he pleaded not guilty and claimed trial.
EVIDENCE LED BY PROSECUTION
3. In the trial, the prosecution in support of its case, examined 11 witnesses, the succinct testimonies whereof are as follows:
4. PW-1 HC Kalu Ram deposed that on 28.10.2016 he was posted as HC at PCR. On that day he was on duty from 8:00 AM to 8:00 PM on PCR No. K-73 as Incharge. He alongwith Ct. Vikram was present at Traffic signal Kalindi Kunj in the PCR at around 11:40 AM. He saw one person coming from Faridabad side on a scooty Jupiter of black colour having number DL-3SDE-0428 and took a U Turn after looking them. On suspicion the said scooty was chased and was apprehended near Metro Pul. He saw two Kattas kept on the scooty at foot rest. On checking the Kattas, one Katta was found containing one packet whereas another Katta was found containing two packets and they were found containing Ganja which was revealed through its smell. The control room was informed about the recovery. On inquiry the name of personal apprehended was revealed as Wasim. SI Sheel Kumar arrived at the spot alongwith HC Captan and Ct. Shiv Kumar. IO also checked the recovered contraband which on measuring found to be 6094 grams, 6184 grams and 6048 grams in the three packets. ATO/Insp. Anwar Khan also reached at the FIR No620/2016 State Vs. Mohd Wasim Page No. 2/45 ARUL Digitally signed by ARUL VARMA VARMA 16:28:25 -0300 Date: 2023.09.18 spot. IO had taken out two samples from each packet of 200 grams each. All the contraband and the samples were sealed with seal of SK and AK i.e. by the IO and Inspector. IO had recorded his statement which was exhibited as Ex.PW1/A bearing his signature at point-A and had got the FIR registered through Ct. Shiv Kumar. The sealed pullandas and the scooty were seized vide memos exhibited as Ex.PW1/B and Ex.PW1/C both bearing his signature at point-A. Accused was arrested and his personal search was conducted vide memo exhibited as Ex.PW1/D and Ex.PW1/E, both bearing his signature at point-A. He had also explained the spot to the IO from where the accused was apprehended.
5. PW-2 Ct Shiv Kumar deposed that on 28.10.2016 he was posted as Constable at PS Jaitpur and was on emergency duty. On that day, upon receipt of a call vide DD No. 19A at 11:59 am regarding recovery of Ganja in the DO Room. Thereafter, the said DD was marked to SI Sheel Kumar and he alongwith him went at the spot, i.e. Agra Canal Road, under Metro Bridge, Kalindi Kunj, New Delhi, where HC Kalu Ram, HC Kaptan and accused whose name was disclosed as Mohd. Wasim. One scooty bearing No. DL-3S-DE-0428 make Jupiter of Black Colour was also standing there and two bags were loaded thereon, from which some smell of Ganja was coming. A notice under section 50NDPS Act was served upon the accused and contents of the notice were also read over and explained to the accused. The accused was also told about his right to FIR No620/2016 State Vs. Mohd Wasim Page No. 3/45 Digitally signed by ARUL ARUL Date:
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be searched in the presence of Gazetted Officer or Magistrate but he declined the said request of the IO and he offered his search to the IO. Carbon copy of the said notice was proved as Ex. PW1/D-2 bear his signature at point B. Thereafter, he brought electric weighing machine from shop No. C-115, JJ Colony, Jalebi Chowk, Madanapur Khadar, New Delhi. On weighing the contents of one katta of white and yellow colour, came to be 6Kg. And few grams. The contents were wrapped in a blue colour polythene wrapped with the Khakhi colour tape. He further investigated the matter and apprehended the accused in the present case.
6. PW-3 HC Saurav deposed that on 28.10.2016, he was posted as HC/DO at PS Jaitpur. He further deposed that he had received rukka from Ct Shiv Kumar for registration of FIR, who was sent to SI Sheel Kumar. On the basis of said rukka, FIR of this case was registered, which was proved as Ex. PW3/A. He also made his endorsement on the rukka, which was proved as Ex. PW3/B. He further deposed that he had brought the DD register.
7. PW-4 ASI Kaptan, deposed that on 28.10.2016, he was posted as HC in PS Jaitpur. On that day, on receipt of DD No. 19A, at 11:59 am, he alongwith SI Sheel Kumar and Ct. Shiv Kumar reached at Metro Station near Agra Canal, Kalandi Kunj, where HC Kalu Ram Incharge Kite73 PCR met them and produced one person to and informed that the said FIR No620/2016 State Vs. Mohd Wasim Page No. 4/45 Digitally signed by ARUL ARUL VARMA VARMA Date:
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person was carrying two plastic kattas containing ganja in them on his scooty no. DL3SDE0428 of make Jupiter of black colour. The name of the said person was revealed as Mohd. Wasim. The kattas were checked and were found containing ganja in them. Statement of HC Kalu Ram was recorded by SI Sheel. Thereafter, a notice u/s 50 of NDPS Act was served upon the accused and he was explained that he has a legal right to conduct the search of the police party and that since his search is to be conducted if he desires a Magistrate or Gazetted Officer can be called or he can produced before them before his search to which accused refused to avail his legal right. The carbon copy of the notice u/s 50 of the NDPS Act was proved as Ex.PW1/D2. The original notice was given to accused. thereafter, the kattas which were on the scooty were checked. One of those kattas was of white and yellow colour and other one was of green colour. They both were found containing ganja in it. Thereafter SHO was informed telephonically who sent ATO Inspector Anwar Khan to the spot. Electronic weighing machine was brought by Constable Shiv Kumar and thereafter both the kattas were weighed separately. The katta of yellow and white colour was found containing 6094 gram ganja and the green colour katta was found containing 2 packets containing 6194 & 6048 gram ganja in it. From the first plastic katta which was of white and FIR No620/2016 State Vs. Mohd Wasim Page No. 5/45 Digitally signed by ARUL ARUL Date:
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yellow colour containing ganja in packet, two samples of 200 gram each were drawn as sample and was marked as S1 and S2 and the remaining ganja was kept in white piece of cloth pullanda of which was prepared and was marked as R1. From the second katta of green colour, four samples of 200 gram each were drawn from two packets and they were marked as S3, S4, S5 & S6 and the remaining ganja in two packets was packed with the piece of clothe separately and was marked as R2 & R3. All above parcels were sealed with the seal of SK and FSL form was filled up in this regard. Seal after use was handed over to Ct. Shiv Kumar. ATO Inspector Anwar Khan had interrogated accused and then counter seal all above pullandas with his seal of AK and he also put his seal on FSL Form. Seizure memo already Ex.PW1/B, bearing his signature at pointC was prepared. Scooty was also seized vide seizure memo Ex.PW1/C, bearing his signatures at pointC. He further deposed that IO/SI Sheel Kumar prepared rukka and sent to PS through Ct Shiv Kumar, who after getting registered the FIR brought the copy of the same at spot. The IO prepared the site plan at the instance of HC Kalu Ram. The IO arrested the accused in this case vide arrest memo Ex. PW1/D. The IO conducted the personal search of the accused vide Ex. PW1/E. In the personal search of the accused, one notice u/s 50 of NDPS Act , one FIR No620/2016 State Vs. Mohd Wasim Page No. 6/45 Digitally signed by ARUL ARUL VARMA VARMA Date:
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mobile phone and some cash were recovered. The IO recorded his statement in this regard.
8. PW-6 ASI Umesh Kumar deposed that on 28.10.2016, he was posted at PS Jaitpur and working as the MHC(M). on that day SI Sheel Kumar had deposited in the Malkhana the personal belongings of accused one notice u/s 50 of NDPS Act, one mobile phone and cash of Rs 105/-. He also deposited one scooty bearing registration no DL3SDE0428 make Jupiter. On the same day, SI Sheel Kumar also deposited the 9 sealed parcels mark S1 to S6 and R1 to R3 alongwith a carbon copy of seizure memo and FSL Form. The parcels and FSL Form bearing the seals of SK and AK.I had made an entry no 2052 in this regard in register no 19 the photocopy of which was proved as Ex PW6/A and the same was taken on record. It was further submitted that on 23.12.2016, Ct Naresh took 6 parcels from him to deposit the same with FSL Rohini. He made a note in this regard at point A against the entry Ex. PW6/A. He took the samples through RC No 237/21/16 to the FSL. The copy of RC was proved as Ex. PW6/B bearing his signatures at point-A. Ct Naresh also brought the acknowledgement from the FSL regarding the deposition of sample. The photocopy of acknowledgment was proved as Ex. PW6/C bearing his signatures at point-A. On 23.06.2017, Ct Dharam Singh had brought the result of FSL alongwith 6 sealed parcels sealed by the FSL containing the FIR No620/2016 State Vs. Mohd Wasim Page No. 7/45 Digitally signed by ARUL ARUL VARMA VARMA Date:
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remnant of substance sent for examination. He also made a note in this regard at point A against the entry Ex. PW6/A. He further deposed that he did not want to say anything more.
9. PW-7 Sh. Prince, S/o Sh. Awdesh deposed that he had been running a shop of hardware in the name and style 'Shri Balaji Paint Hardware". On 28.10.2016 in the lunch time, he was present at his shop, then one Ct. Shiv Kumar, beat officer of his area, took the electronic weighing machine from his shop for weighing something. The capacity of weighing machine was about 30-40 kg. They usually weigh substances more than 500 grams in the said weighing machine. The said machine could also weigh substances of even 100/200 grams weight. He further deposed that he collected his weighing machine from the police station. He had not brought the said weighing machine before this Court.
10.PW-8 Retired Insp. Anwar Khan deposed that on 28.10.2016, he was posted as Inspector ATO at PS Jaitpur. On that day, he got the information regarding a person apprehended with 'ganja' near metro bridge of Kalindi Kunj. On this information, he reached at the spot at about 12:45 PM. At the spot, SI Sheel Kumar alongwith the staff met him and informed him that HC Kalu Ram had apprehended one Mohd. Wasim with 'ganja', who was also present at the spot. SI Sheel Kumar handed over him six sample parcels Mark S-1 to S-6 and three big parcels Mark R-1 to R-3. All the parcels were sealed with the seal of 'SK'. He also affixed his counter seal FIR No620/2016 State Vs. Mohd Wasim Page No. 8/45 Digitally signed by ARUL ARUL VARMA VARMA Date:
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'AK' on all the parcels. SI Sheel Kumar also gave him one FSL form having the aforesaid seal of 'SK' and he also affixed his seal on it. He also gave him the carbon copy of seizure memo. He took all the said parcels, FSL form and copy of seizure memo to police station. He further deposed that he had deposited the said items with the MHC(M) in the malkhana. He had recorded DD No. 25-A in this regard. The attested copy of the same was proved as Ex. PW8/A. He deposed that IO might have recorded his statement.
11.PW-9 SI Harish Kumar deposed that he has been working as SO in the office of ACP (operation), South-East, for the last 5-6 months. He further deposed that he had brought the summon record i.e. report u/s 57 NDPS Act regarding the seizure of contraband item and arrest of accused, prepared by SI Sheel Kumar, PS Jaitpur, forwarded by the SHO, Jaitpur, was received in the ACP office on 29.10.2016. The original report was placed on record and proved as Ex. PW9/A. As per record, the same bore the signature of the then ACP at point A. The receiving of the said report was mentioned at entry Serial No. 2 of diary register. The copy of the relevant entry was also proved as Ex. PW9/B.
12.PW-10 SI Sheel Kumar deposed that on 28.10.2016, he was posted at PS Jaitpur. On that day, he received a DD No. 19A vide Ex. PW3/D regarding apprehending of one person on scooty with 'ganja' in the area of J. J. Colony, Jaitpur near canal. In pursuant of the said DD, he FIR No620/2016 State Vs. Mohd Wasim Page No. 9/45 Digitally signed by ARUL ARUL VARMA VARMA Date:
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alongwith HC Kaptan Singh and Ct. Shiv Kumar reached the spot at Agra canal road below metro line near Kalindi Kunj. At the spot, HC Kalu Ram, In-charge, K-73, PCR van met alongwith his staff. He produced one person whose name revealed after inquiry as Mohd. Wasim alongwith one scooty bearing no. DL 3SDE 0428 black colour Jupiter on the board of which two plastic bag (katta) of white colour and green colour were lying. He further deposed that in the said kattas, the 'ganja' was stated to have been carrying away by the said Wasim. It was further deposed by SI Sheel Kumar that he then recorded the statement of HC Kalu Ram, which was proved as Ex. PW1/A attested by him at point X. On checking of kattas, the white colour katta was having one packet and katta of green colour was found two packets. He gave a notice u/s 50 NDPS Act upon the accused in respect of the search of accused and told him that his search was to be taken for the purpose of recovery of some contraband substance, if any, and his search could be conducted in the presence of Gazetted Officer or Magistrate, if he so desire. The accused refused to avail his legal right for getting his search conducted in the presence of any such officer. Even the accused refused to conduct the search of police official despite the offer was given to him. The carbon copy of the said notice was proved as Ex. PW1/D2, which bore his signature at point X. The accused showed inability to write down his reply below the carbon copy of the notice, so at his instance, he recorded his reply on his behalf FIR No620/2016 State Vs. Mohd Wasim Page No. 10/45 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.09.18 16:29:51 -0300 below the carbon copy of the notice which was proved as Ex. PW10/A, which bore his signature of accused at point A. He brought the weighing machine at the spot. In the meantime, the ATO, PS Jaitpur also reached there. He further deposed that he checked the packet found in the white katta which was again containing again blue colour polythene which was wrapped with a tape of brown colour. He opened the packet and it was found 'ganja'. He then checked the two packets found in the green katta. The said packets were of yellow colour polythene wrapped with brown colour tape. He opened both the packets and they were found 'ganja'. He weighed all three packets one by one. In one packet found in white katta, the weight was 6.094 Kg 'ganja' and the another two packets were found containing 6184 grams and 6.048 Kg 'ganja'. He drew two samples of 200 grams each from each three packets. The samples of 'ganja' were converted into parcels and given Mark S-1 to S-6 i.e. S-1 and S-2 given to the samples pertaining to 'ganja' recovered from the packet which was found in white katta and remaining Mark S-3 to S-6 were pertaining to 'ganja' recovered from two packets which were found in the green katta. The remaining ganja in the same packets were given Mark R-1 to the packet found in the white katta, and R-2 and R-3 given to the remaining kattas. The packets were kept in the respective kattas and sealed them with the seal of 'SK'. He also sealed all the sample parcels with the seal of 'SK'. He also filled in the FSL form and affixed the same seal on it. The FIR No620/2016 State Vs. Mohd Wasim Page No. 11/45 Digitally signed by ARUL ARUL Date:
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seal after use was given to Ct. Shiv Kumar. He then seized all the parcels with FSL form through the seizure memo already Ex. PW1/B, which bore his signature at point X. He handed over all the parcels, FSL form and copy of seizure memo to the ATO, Inspector Anwar Khan, who affixed his counter seal on all the parcels and the FSL form and took them away to PS. Thereafter, he prepared rukka Ex. PW10/B, which bore his signature at point A. The rukka was handed over to Ct. Shiv Kumar and sent him to PS for the registration of the FIR. After some time, Ct. Shiv Kumar brought the copy of the FIR to the spot and handed over the same to him. He made inquiry from accused and arrested him in this case vide Ex. PW1/D, which bore his signature at point X. He further conducted the personal search of accused and no contraband substance was recovered. But in the personal search, he recovered one original notice u/s 50 NDPS Act, cash of Rs. 105/- and one mobile phone. He also prepared the personal search memo which was proved as already Ex. PW1/E, bore his signature at point X. He then seized the aforesaid scooty of accused vide seizure memo already Ex. PW1/C, bearing his signature at point X. He interrogated the accused and recorded his disclosure statement vide Mark A-1. He also prepared the site-plan of the place of recovery at the instance of HC Kalu Ram which was already Ex. PW1/D1, bearing his signature at point X. He brought the accused alongwith the scooty to the PS and the scooty was deposited in the FIR No620/2016 State Vs. Mohd Wasim Page No. 12/45 Digitally signed by ARUL ARUL Date:
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malkhana. He further deposed that he recorded the statement of witnesses and prepared a report u/s 57 NDPS Act regarding the seizure of 'ganja' and arrest of accused and sent to ACP through the SHO Mohar Singh Meena. The report was proved as already Ex. PW9/A, bore his signature at point X and it was forwarded by the SHO vide his signature at point B, to the ACP. The sample parcels were sent to FSL in December, 2016. The result was received later on.
13. PW-11 Retired ACP Sh. Om Prakash, deposed that on 29.10.2016, he was posted as ACP, Sarita Vihar. On that day a report u/s 57 NDPS Act regarding the seizure of contraband substance 'ganja' and arrest of accused was received in his office and the same was put up before him by the Reader. The said report was prepared by SI Sheel Kumar, PS Jaitpur and forwarded by the SHO, PS Jaitpur. He further deposed that he had seen the said report which was proved as Ex. PW9/A, bore his signature at point A.
14.The relevancy of the witnesses examined are succinctly delineated in the following tabular form:
PW NAME RELEVANCE
1 HC Kalu Ram He was the Incharge of PCR Van
No K73. During patrolling on
suspicion he apprehended the
accused with the scooty and on
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the foot rest of scooty one katta
was found which was found to be
containing Ganja. He informed
the concerned PS Jaitpur through
Control room, and in pursuance
of which SI Sheel Kumar the IO
alongwith HC Kaptan and Ct
Shiv Kumar reached there.
2 Ct Shiv Kumar He was part of the raiding team
which apprehended the accused
and effected recoveries of
contraband item from the accused
person. He also taken the rukka
for registration of FIR. The IO
also gave the seal to him after
use.
3 HC Saurav He was the Duty Officer in PS
who registered the present FIR i.e
Ex. PW3/A on the basis of rukka
sent by PW-10 SI Sheel Kumar
through PW-2 Ct Shiv Kumar.
4 ASI Kaptan He was part of the raiding team
which apprehended the accused
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and effected recoveries of
contraband item from the accused
person.
5
6 ASI Umesh Kumar (the He was the MHC(M) PS Jaitpur
number of PW to this and proved entries no 2052 vide
witness is given 6 in Ex. PW6/A in Register No. 19
lieu of 5 regarding depositing, and the
inadvertently). notes appended thereto issuance
of case property.
7 Sh. Prince He was the shopkeeper from
whom Ct Shiv Kumar borrowed
the weighing machine and taken
to the spot for weighing the
contraband substance.
8 Retired Inspector He was posted as Additional
Anwar Khan SHO PS Jaitpur and reached the
spot and the IO SI Sheel Kumar
handed over him 6 sample
paroles and 3 other big parcels in
sealed condition with the seal of
SK FSL Form, Carbon copy of
seizure memo on which he
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affixed his seal of 'AK' and
deposited the same in the
Malkhana after making entry in
Register No. 19 in compliance of
Section 55 of the NDPS Act and
he recorded DD no 25 vide Ex.
PW8/A in this regard.
9 Harish Kumar He was posted as SO in the office
of ACP and brought the record ie
original report u/s 57 of NDPS
Act which was prepared by SI
Sheel Kumar and seen by ACP
the report was proved
byEx.PW9/A proved receipt
report u/s 42 and 57 of NDPS
Act.
10 Retired SI Sheel Kumar He is the IO of the case who
received DD No 19 A vide Ex.
PW3/D regarding apprehending
of accused with scooty and Ganja
by the PCR official HC Kalu
Ram. In pursuance of secret
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information, he reached at spot
alongwith HC Kaptan Singh and
HC Shiv Kumar conducted
investigation leading to arrest of
the accused, and effected
recoveries from him. He made
the compliance of Section 50
NDPS Act vide notice Ex.
PW10/A and after recovery he
prepared rukka Ex. PW10/B on
which FIR was registered and
thereafter he prepared report u/s
57 of NDPS Act regarding the
seizure of Ganja and arrest of
accused.
PW-11 ACP Sh. Om Prakash, He proved that he received the
report u/s 57 of NDPS Act
regarding the seizure of Ganja
and the arrest of accused.
STATEMENT OF ACCUSED
15.Accused was examined u/s 313 Cr.PC. In his defence, he averred that he FIR No620/2016 State Vs. Mohd Wasim Page No. 17/45 Digitally signed by ARUL ARUL Date:
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does not know anything about this case and has been falsely implicated in this case. He deposed that he is an innocent person and that he has been falsely implicated in the present case by the police officials. He further stated that nothing had been recovered from his possession and that the alleged case property has been falsely planted upon him. It was further stated by accused that it false case based on concocted story made by the police officials and that his signatures were forcibly taken on some blank, semi-written and written documents by the IO. He further stated that he is an illiterate . He further averred that all the proceedings, if any, were conducted while sitting in the police station and that he is innocent. Further, accused did not lead any evidence in his defence. ARGUMENTS OF LD. ADDL. PUBLIC PROSECUTOR FOR THE STATE AND LD. DEFENCE COUNSEL
16. Sh. Wasi-Ur- Rahman, Ld. Public Prosecutor for the State submitted that all the relevant material prosecution witnesses have been examined and cumulatively they have proved the case of prosecution beyond reasonable doubt. It was also submitted by Ld. Addl PP for State that after the prosecution evidence, the statement of accused has been recorded u/s 313 Cr.PC. In his statement, the accused nowhere explained any circumstance proved against him and put to him during his examination. The accused also did not claim any prejudice for non compliance of any provision, if FIR No620/2016 State Vs. Mohd Wasim Page No. 18/45 Digitally signed by ARUL ARUL VARMA VARMA Date:
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any,.
17.Ld. Addl PP for State further contended that there is no reason to discard the testimony of witnesses examined in this case. Furthermore, there is no defence taken by the accused, which can be considered at par with the prosecution evidence, rather, in light of Section 35 and 54 of NDPS Act, apart from the evidence led by prosecution, there is presumption of having the contraband substance in the possession of accused person unless and until the same is proved contrary to the satisfaction of this Court. It was thus submitted that the all the prosecution witnesses have deposed in similar vein and there is no such discrepancy in the testimony of any of the prosecution witness which could shake the substratum of the case. Although there are some minor discrepancies/omission which are bound to occur in the testimony of natural witnesses that too recorded after a considerable time.
18.Ld. Addl PP for State further contended that in the present case on 28.10.2016, HC Kalu Ram the Incharge of PCR Van while he was on patrolling duty in the area of JJ Colony Jaitpur then on the basis of suspicion, he apprehended the accused alongwith his scooty and on checking, two plastic bags were found on the footrest of scooty and the said bags/kattas were found containing Ganja. HC Kalu Ram had informed the police station through control room, and in this regard DD no19 A Ex. PW3/D was recorded in the police station and the same was FIR No620/2016 State Vs. Mohd Wasim Page No. 19/45 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.09.18 16:31:19 -0300 marked to PW-10 SI Sheel Kumar, the IO of the case.
19.It was further submitted that the IO SI Sheel Kumar reached at the spot alongwith HC Kaptan Singh and Ct Shiv Kumar. Since the recovery of contraband was a chance recovery and thus Section 50 of NDPS Act cannot be invoked as held in case State of Punjab Vs Baldev Singh (1999) 6 SCC 172, the Apex Court held in para 57 that when an empowered officer or a duty authorized officer acting on prior information is about to search a person, it is imperative for him to inform the person concerned for his legal right under Sub Section(1) of Section 50 of NDPS Act of being taken to the nearest Gazetted Officer of a Magistrate for making the search. It was thus submitted that in the present case there was no prior information to the authorised officer rather it was mere a chance recovery during patrolling, therefore Section 50 of NDPS Act cannot be invoked. But, even in the present situation in order to show fairness in the investigation, the IO complied with the provision of Section 50 of NDPS Act properly by serving the notice u/s 50 NDPS Act upon the accused.
20. It was further argued that at the spot the seizure of contraband substance was done properly and sealed the parcels and then handed over to SHO who complied with the provisions u/s 55 of NDPS Act as he affixed his seal on the parcels and the FSL form and put the FIR Number after taking the same from duty officer and then he deposited the same with MHC(M) FIR No620/2016 State Vs. Mohd Wasim Page No. 20/45 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.09.18 16:31:27 -0300 in the Malkhana, which reflects from the exhibited register no 19 of Malkhana. The SHO also had recorded a DD in this regard.
21. Ld. Addl PP for State submitted that as regards the contention of Ld. Counsel for accused that the no public witnesses were joined or no efforts were made to join the public witnesses. This contention is factually not correct because as per the testimony of IOs they had made efforts and asked several passersby to join investigation but none of them had agreed due to their own reasons and further due to the paucity of time no written notice could be served upon them. It was further submitted that in such cases, independence evidence is required but accused cannot be acquitted merely because non production of independence witness. Ld. Addl PP for State placed reliance on Ajmer Singh v State of Haryana (2010) 3 SCC
746. It was thus submitted that the case has been proved beyond reasonable doubt and accused person is liable to be held guilty for the offence he is charged with and accused person ought to be convicted.
22. Per contra, Sh. Rajesh Kumar Singh, Ld. Counsel for accused submitted that there is total non compliance of Section 50 NDPS Act and Section 57 of NDPS Act. It was further submitted that all the prosecution witness have given different versions and there are contradiction in their testimonies. It was further contended that no public witness was joined at the time of investigation or raid or recovery of contraband item. Ld. Counsel lastly contended that the case property was tampered with. Ld. FIR No620/2016 State Vs. Mohd Wasim Page No. 21/45 Digitally signed by ARUL ARUL VARMA Date:
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Counsel for accused invited the court's attention to Ex. PW13/D vide DD No 19 dated 28.10.2016 to contend that the name of accused was nowhere mentioned in the secret information. To contend that there was non compliance of Section 50 of NDPS Act, Ld Counsel submitted that original notice u/s 50 of NDPS Act has never been produced before the court despite it being reflected as recovered from personal search memo of the accused vide Ex. 1/E i.e personal search memo. It was further submitted that all the recovery witness to the personal search memo barring the IO, averred that Nokia Mobile phone was recovered from the accused whereas in fact mobile make Intex was recovered therefrom. It was further submitted that none of the recovery witnesses could tell as to how much money was recovered from the personal search memo of the accused. Ld. Counsel for accused placed reliance on testimony of PW-10 SI Sheel Kumar recorded on16.09.2023 to contend that even the MHC(M) ASI Vivekanand had said that he had taken the charge of Malkhana in the year 2021 and had not received the original notice u/s 50 of NDPS Act. It was further submitted that PW-10 SI Sheel Kumar in his examination in chief dated 14.09.2023, had averred that since the accused had showed his inability to write down his reply below carbon copy of the notice, so at his instance, the IO recorded his report on his behalf below the carbon copy of the notice is Ex. PW 10/A. However, it was submitted by Ld. Counsel that PW-10 SI Sheel Kumar recanted on his FIR No620/2016 State Vs. Mohd Wasim Page No. 22/45 Digitally signed by ARUL ARUL Date:
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above statement while his cross-examination was conducted, he averred that he does not remember as to who has written the reply Ex. PW10/A on behalf of accused below the carbon copy of notice u/s 50 of NDPS Act. It was further submitted that as per the version of PW Ct Shiv Kumar, he signed the original notice of Section 50 of NDPS Act at the police station.
23. Ld. Counsel for accused submitted that there are discrepancies in the version of prosecution qua the person who deposited the case property. It was further submitted that as per the MHC(M) PW-6 ASI Umesh Kumar that it was PW-10 SI Sheel Kumar who had deposited the case property ie sealed pullandas, FSL Form and Seizure memo in the Malkhana.
However, a perusal of testimonies of witnesses namely PW-8 Inspector Anwar Khan and PW-10 SI Sheel Kumar would reveal that they had deposited the case property.
24.Ld. Counsel for accused further submitted that a perusal of MHC(M) register i.e Ex. PW 6/A would reveal that it was the seizure memo which was deposited at the first instance and not the case property. Ld. Counsel for accused further invited the court's attention to examination in chief of PW-1 who deposed as thus:
"At this stage MHC(M) has produced two plastic Kattas duly sealed with the seal of AK. On opening first katta, it found containing one cloth pullanda duly sealed with the seal of SK and case particulars written on it and Marked R1. FIR No620/2016 State Vs. Mohd Wasim Page No. 23/45
Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.09.18 16:31:55 -0300 The pullanda is torn at one place of dimension of 2.5x2 inch which is blocked by a piece of cloth. On opening the same, it found containing one packet of plastic containing leaves of dark green in colour with small flowers. The said packet itself is torned from two places, one is large enough that anything can be taken out from for kept in the same. The case property is shown to the witness who has correctly identified the same and now exhibited as Ex.P1."
25.Ld. Counsel for accused submitted that PW- Kalu Ram had deposed in his examination in chief that the weighing machine was brought by Ct Shiv Kumar in an Auto. However, Ct Shiv Kumar had deposed that he had brought the weighing machine on motorcycle. It was further submitted that as far as returning of weighing machine is concerned, PW- 10 SI Sheel Kumar averred that at the time of returning of weighing machine, HC Kaptan and CT Shiv Kumar was present there in the police station. However, PW-2 Ct Shiv Kumar when grilled, as to how and when the weighing machine was returned, submitted that he did not remember as to after how much time the weighing machine was returned to the shopkeeper nor could he tell the time of returning the weighing machine even whether it was returned in the evening or in the night or on the next day. However, PW Ct Shiv Kumar also did not remember as to who returned the weighing machine to the shopkeeper.
26.Ld. Counsel lastly submitted that there is discrepancy in the version of PW-1 Kalu Ram and PW-4 SI Kaptan Singh qua the place where FIR No620/2016 State Vs. Mohd Wasim Page No. 24/45 Digitally signed by ARUL ARUL VARMA VARMA Date:
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investigation proceedings took place. It was further submitted that in the testimony of PW-1he deposed that IO had used bonnet of PCR as table to write his statement and IO had also recorded statement of HC Kaptan Singh and Ct Shiv Kumar at the bonnet of PCR. However, PW-4 Kaptan Singh submitted that IO prepared all the documents while sitting in the back seat of PCR.
27.It was further submitted that as per the statement of PW-4 SI kaptan Singh all the proceedings were conducted before the arrival of Inspector Anwar Khan and no proceedings were conducted in the presence of Inspector Anwar Khan, is contrary to what inspector Anwar Khan stated before the Court.
28. It was further submitted that PW-4 SI Kaptan Singh submitted that only one seal was used during the proceedings. However, it is the case of prosecution itself that two seals namely SK and AK were used in the proceedings. Ld. Counsel thus submitted that seal was not deposited by the prosecution in the Malkhana.
29.In rebuttal, Ld. Addl PP for State submitted that as regards, the non compliance of provision of Section 55 of NDPS Act and the deposition of parcels of contraband substance by SI Sheel Kumar as per the version of PW-6 ASI Umesh Kumar, the MHC(M), in his testimony qua the fact that the case property was deposited by SI Sheel Kumar and not by Inspector Anwar Khan is liable to be rejected because the fact regarding deposition FIR No620/2016 State Vs. Mohd Wasim Page No. 25/45 Digitally signed by ARUL ARUL Date:
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of case property by Inspector Anwar Khan is reflected not only from the testimonies of IOs and the recovery witnesses but also from the FSL result and the forwarding letter of the FSL wherein it is clearly mentioned that the parcels were bearing the seal of Inspector Anwar Khan as deposed by the witnesses and the Inspector Anwar Khan himself. It is thus submitted that the testimony in this regard of Inspector Anwar Khan and IO SI Sheel Kumar are reliable. Therefore, the compliance of Section 55 NDPS Act has been done properly as deposed by Inspector Anwar Khan that he received the sealed parcels from the IO and then he affixed his counter seal on the same including the FSL form as it is reflective from the forwarding letter attached with FSL result that is how the compliance of Section 55 NDPS Act has been done properly. It was further submitted that the appropriate action against PW-6 ASI Umesh Kumar may be recommended to the senior police officers as he belied the testimonies of the senior officers in this case.
30. As regards, the non compliance of Section 50 NDPS Act, it was submitted that firstly, the contraband substance had already been recovered by chance and that is how irregularity, if any, in the compliance of Section 50 of NDPS Act does not affect the recovery of ganja made earlier by chance. Furthermore, the non production of original notice u/s 50 NDPS Act given to accused and recovered in his personal search later on also do not affect the case of merit because the carbon copy of the said FIR No620/2016 State Vs. Mohd Wasim Page No. 26/45 Digitally signed by ARUL ARUL VARMA VARMA Date:
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notice has been proved alongwith reply of accused thereon. Therefore, this lapse is not sufficient to shake the substratum of the case.
31. It was further submitted that there are some minor contradictions are there in the testimonies of witnesses and such discrepancies are bound to occur in the testimonies of natural witnesses and the same be liable to be ignored.
32. It was further submitted by Ld. Addl PP for State that as regards the contradiction pointed out by Ld. Counsel for accused that PW Kaptan Singh had deposed that no proceedings were conducted in the presence of Inspector Anwar Khan whereas Inspector Anwar Khan had deposed that all the proceedings of seizure and sealing conducted in his presence.
This argument is factually wrong because Inspector Anwar Khan nowhere deposed that procedure of seizure and sealing conducted before him, rather he only deposed that when he reached at the spot, the IO had handed over him six sealed parcels and some documents and that is why PW-4 Kaptan Singh had deposed that no proceedings were conducted in the presence of Inspector Anwar Khan. Thus, he simply meant that the proceedings of seizure of contraband and sealing thereof did not take place in his presence.
STATEMENT OF REASONS FOR THE DECISION A. APPREHENSION OF ACCUSED AND RECOVERY OF ALLEGED CONTRABAND FROM HIM FIR No620/2016 State Vs. Mohd Wasim Page No. 27/45 Digitally signed by ARUL ARUL VARMA Date:
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33. Ordinarily, in cases under the NDPS Act arrests are made and recoveries are effected at the instance of a ubiquitous secret informer. However, in this case, the recoveries of contraband substance was effected from the accused by sheer chance. PW- 1 HC Kalu Ram deposed that he was on PCR duty, as in-charge of PCR No KITE 73 on 28.10.2016 from 08:00 AM to 08:00 PM, he saw the accused coming from Faridabad side on a Jupitar scooty bearing registration no DL3SDE0428 and took a U-turn after seeing the police personnel. He deposed that on suspicion, the said scooty was chased and the driver was apprehended. PW-1 HC Kalu Ram further deposed that he saw two kattas kept on the scooty at its footrest, and on checking the kattas, on katta was found containing one packet, and the other katta was found containing two packets, and all the packets were found containing Ganja, and thereafter the control room was informed about the recovery.
34. It has also been adduced in evidence that pursuant to receipt of call vide DD no 19 A, at 11:59 AM on 28.10.2016, PW-2 Ct Shiv Kumar, who was on emergency duty was marked the abovesaid DD. He and IO PW-10 SI Sheel Kumar went to the spot ie Agra Canal Road, Under Metro, Bridge Kalindi Kunj, New Delhi, where they met PW-1 HC Kalu Ram, PW-4 SI Kaptan alongwith accused his scooty bearing DL3SDE0428 and the contraband items. Thereafter, the proceedings u/s 50 NDPS Act were conducted, the contraband item was seized and sealed, rukka was FIR No620/2016 State Vs. Mohd Wasim Page No. 28/45 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.09.18 16:32:48 -0300 prepared, and other proceedings qua investigation i.e arrest, personal search, etc were conducted and the chargesheet was filed.
35.During the course of arguments, it was argued that no public witnesses were joined. It is correct that there are divergent statement of the police official with respect to joining of public persons. However, that alone cannot discard the case of the prosecution. In fact, PW-8 Inspector Anwar Khan had avowed in his cross examination that the place of incident is not a crowded place and the distance between the place of incident and the red light of Kalindi Kunj and the metro Station of Kalindi Kunj are about 1-1.5 KM. He categorically deposed that when he had reached the spot, there were no public persons gathered at the spot. Significantly, in this context, it would be useful to peruse the following extracts of Ajmer Singh v State of Haryana (2010) 3 SCC 746:
"19 The learned counsel for the appellant has submitted that the evidence of the official witnesses cannot be relied upon as their testimony, has not been corroborated by any independent witness. We are unable to agree with the said submission of the learned counsel. It is clear from the testimony of the prosecution witnesses PW 3, Paramjit Singh Ahalwat, DSP, Pehowa; PW 4, Raja Ram, Head Constable and PW 5, Maya Ram, which is on record, that efforts were made by the investigating party to include independent witness at the time of recovery, but none was willing. 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 a 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. FIR No620/2016 State Vs. Mohd Wasim Page No. 29/45
Digitally signed by ARUL ARUL Date:
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20 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 taking due care and caution in evaluating their evidence."
36.Thus, the testimony of police witnesses cannot be disregarded merely on account of non joining of public witnesses.
37. It is to be noted that as per the deposition of prosecution witnesses, the contraband item was recovered from the accused at Agra Canal Road, under the Metro Bridge. The said place is admittedly a public place as defined in Section 43 of NDPS Act, where public has access. The recovery has not been effected in any building or other conveyance where public does not have access.
38.Therefore, Section 43 of the NDPS Act would be attracted in the facts and circumstances of the present case, and not Section 41 or 42 of the Act. In this context, it would be useful to refer to Mohan Lal V State of Rajasthan (2015) 6 SCC 222 wherein it was held as thus:
"32 In the present case, the High Court has noted that the information was given to the competent authority. That apart, the High Court has further opined that in the case at hand Section 43 applies. Section 43 of the NDPS Act contemplates seizure made in the public place. There is a distinction between Section 42 and Section 43 of the NDPS Act. If a search is made in a public place, the officer taking the search is not required to comply with sub- sections (1) and (2) of Section 42 of the NDPS Act. As has been stated earlier, the seizure has taken place beneath a FIR No620/2016 State Vs. Mohd Wasim Page No. 30/45 Digitally signed by ARUL ARUL Date:
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bridge of public road accessible to the public. The officer, Sub-Inspector is an empowered officer under Section 42 of the Act. As the place is a public place and Section 43 comes into play, the question of non-compliance with Section 42(2) does not arise."
39. Even the Constitutional Bench judgment of Karnail Singh Vs. State of Haryana (2009) 8 SCC 539, it was laid down as thus:
"26 The material differences between the provisions of Section 42 and 43 of the NDPS Act is that Section 42 requires recording of reasons for belief and for taking down of information received in writing with regard to the commission of an offence before conducting search and seizure, Section 43 does not contain any such provision and as such while acting under Section 43 of the Act, the empowered officer has the power of seizure of article, etc. and arrest of a person who is found to be in possession of any narcotic drug or psychotropic substance in a public place where such possession appears to him to be unlawful."
B. COMPLIANCE OF SECTION 55 OF THE NDPS ACT BY THE SHO
40.At this juncture, it would be apt to refer to Section 55 of the NDPS Act:
"SECTION 55. Police to take charge of articles seized and delivered.- An officer-in -charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in-charge of the police station."
41.In the present case, Inspector Anwar Khan, who was posted as Inspector , ATO PS Jaitpur, deposed that on 28.10.2016 he had got information regrading apprehension of the accused with Ganja whereafter he reached the spot at 12:45 PM. He deposed that he met the other police officers connected with the investigation i.e IO/SI Sheel Kumar, who had FIR No620/2016 State Vs. Mohd Wasim Page No. 31/45 Digitally signed by ARUL ARUL Date:
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informed him that PW-1 HC Kalu Ram had apprehended the accused with Ganja. PW-8 Categorically deposed that the IO handed over to him six samples parcels mark S1 to S6 and three big parcels mark R1 to R3 which were already sealed with the seal of SK. The witness avowed that he counter affixed his seal of AK on all the parcels. Thereafter, the FSL Form having seal of SK was given to this witness by PW-10 SI Sheel, and in the said form also, PW-8 affixed his seal. The witness categorically deposed that he took all the above said parcels, FSL form and carbon copy of seizure memo to Malkhana and deposited the same with MHC(M). He proved the DD entry to this effect as Ex. PW8/A.
42. The receipt of the sealed parcels in the Malkhana alongwith carbon copy of seizure memo and FSL form was proved by PW-6 ASI Umesh Kumar who was the MHC(M) PS Jaitpur. He deposed in his examination in chief dated 31.08.2023 that he made an entry no 2052 in this regard in Register no 19 photocopy of which was exhibited as PW6/A. A perusal of Ex. PW8/A would reveal that the said DD No 25 A dated 28.10.2016, record the fact of arrival of Inspector Anwar Khan, ATO from the NDPS recovery place and deposit of the case property with copy of seizure memo and FSL form. Further, a perusal of Ex. PW8/A also reveals that a total of 9 seals with the seal of AK with copy of seizure memo and FSL form duly sealed with SK and counter sealed with the seal of AK were handed over to the MHC(M).
FIR No620/2016 State Vs. Mohd Wasim Page No. 32/45
Digitally signed by ARUL ARUL Date:
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43. Thus, as is evident from the above deposition the prosecution evidence clearly discloses that the sealed articles were produced before Officer In- charge of the police station, that he had put his seal over those articles and there were sent for safe custody. Thus, there is due compliance of Section 55 of NDPS Act in terms of Ashok Kumar Vs State of Haryana AIR 2000 SC 3474 C. REPORT UNDER SECTION 57 OF NDPS ACT
44.It would be apposite to refer to Section 57 of the Act, which is reproduced hereunder:
"Whenever any person makes any arrest or seizure, under this Act, he shall, within forty eight hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior."
45.The legislative intent behind Section 57 of the Act, has been delved upon in Megha Ram v State of Rajasthan 1997 Cri LJ 3091 in the following words:
"Section 57 comes into play in the post-arrest period. It enjoins upon the officer, arresting an accused and effecting recovery of a narcotic drug or psychotropic substance from his possession, to inform his superior officers of the actions taken by him. Compliance of this provision is meant to serve a dual purpose. On the one hand it affords an element of authenticity to the action taken by him in the cause of preventing commission of offences against the NDPS Act. The consciousness of compliance of this section puts, in a sense, a sort of check on the arbitrary exercise of his powers of arrest and seizure by him under the Act and creates a sense of responsibility in him to act in accordance with relevant provisions of law so as not to be undermined in the estimation of his superior officers with regard to the discharge of his duties as a responsible officer. On the other hand the communication of the information apprises the superior officers of the position of offences against the NDPS Act and FIR No620/2016 State Vs. Mohd Wasim Page No. 33/45 Digitally signed by ARUL ARUL Date:
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also of the steps taken and compliance of the relevant rules made by their subordinates in the administration of the said Act. If the officer has acted as a vigilant and duty conscious officer in the pre-arrest-stage of the proceedings and his evidence discloses satisfactory compliance of the mandatory provisions relating to that stage of proceedings and inspires confidence in Court, non-compliance or compliance with some irregularity of certain provisions relating to post-arrest period would not be fatal to the prosecution case as that would be a case of an offence already committed and concluded. The purpose of compliance of S. 57 is to afford further reliability to the action already taken by the subordinate, officer. In that sense of the matter compliance of S. 57 is not mandatory but for that reason its importance in the scheme of the Act cannot be minimised (see State of Punjab v. Balbir Singh)"
46.PW-10 IO/SI Sheel Kumar in his examination in chief dated 14.09.2023 deposed that he had prepared the report u/s 57 of NDPS Act regarding the seizure of Ganja and arrest of accused and sent to ACP through SHO Mohar Sing Meena. He proved the report which was already Ex. PW9/A bearing his signatures at point-X. He further averred that it was forwarded to the ACP by the SHO vide his signatures at point B. He denied the suggestion that he had prepared a false report u/s 57 of NDPS Act.
47.The receipt of report u/s 57 of NDPS Act in the office of the ACP was proved by two witnesses namely PW-9 SI Harish Kumar, who was the SO to the ACP and PW-11 Retire ACP Sh Om Prakash. PW-9 SI Harish Kumar produced the summon record ie report u/s 57 of NDPS Act regarding the seizure of contraband item and the arrest of accused prepared by IO/SI Sheel Kumar forwarded by the SHO and averred that FIR No620/2016 State Vs. Mohd Wasim Page No. 34/45 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.09.18 16:34:04 -0300 the same was received in the office of the ACP on 29.10.2016. He proved the said report as Ex. PW9/A bearing the signatures of the then ACP at point-A. He also deposed that the receiving of the said report is mentioned at entry serial no 2 of the diary register and he proved the relevant entry as Ex. PW9/B. In his cross-examination, he avowed that he was not present at the time of receipt of report u/s 57 of NDPS Act and had not worked with the then ACP and could not identify his signatures. Thus, to prove its case, the prosecution examined the concerned ACP Sh.Om Prakash as PW-11, who deposed that on 29.10.2016, he was posted as ACP Sarita Vihar and on the said day, report u/s 57 of NDPS Act was received in his office and the same was put before him by the Reader. He further averred that the said report was prepared by IO SI Sheel Kumar and was forwarded by the SHO PS Jaitpur. He proved the report as Ex. PW9/A bearing his signatures at point-A.
48.Thus, there was in toto compliance of Section 57 of NDPS Act.
D. COMPLIANCE OF SECTION 50 NDPS ACT
49. Ld. Counsel for accused submitted that there is non compliance of Section 50 of NDPS Act. In his submissions, he had pointed out to lacunae in compliance of this mandatory provision by the prosecution. It was submitted the original notice u/ 50 NDPS Act was never produced before the Court. It was further submitted that there were discrepancies FIR No620/2016 State Vs. Mohd Wasim Page No. 35/45 Digitally signed by ARUL ARUL VARMA Date:
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with respect to the fact as to who wrote the reply of the accused in the notice served to him u/s 50 NDPS Act.
50.To adjudicate this issue, it would be profitable to refer to Section 50 of the Act, which reads as thus:
"Section 50: Conditions under which search of persons shall be conducted:
(1)When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate (2)If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1)"
51.The safeguards mentioned in Section 50 are intended to serve a dual purpose- to protect a person against false accusation and frivolous charges as also to lend credibility to the search and seizure conducted by an empowered officer.
52. There is no dispute that compliance of Section 50 of NDPS Act is imperative when prior information qua carrying or supplying of contraband item is received by the police. However, a position is different in case of chance recovery. In the present case, Ld. Addl PP for State had contended that the present matter was not one where compliance of Section 50 of NDPS Act was mandatory. In the present case, a perusal of testimony of PW-1 HC Kalu Ram would reveal that he was on PCR duty, as in-charge of PCR No KITE 73on 28.10.2016 from 08:00 AM to 08:00 FIR No620/2016 State Vs. Mohd Wasim Page No. 36/45 Digitally signed by ARUL ARUL VARMA VARMA Date:
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PM, he saw the accused coming from Faridabad side on a Jupitar scooty bearing registration no DL3SDE0428 and took a U-turn after seeing the police personnel. He deposed that on suspicion, the said scooty was chased and the driver was apprehended. PW-1 HC Kalu Ram futher deposed that he saw two kattas kept on the scooty at its footrest, and on checking the kattas, on katta was found containing one packet, and the other katta was found containing two packets, and all the packets were found containing Ganja, and thereafter the control room was informed about the recovery. Thus, it was not a case where prior information was received that the accused was carrying contraband items.
53.Significantly, the law qua compliance of Section 50 NDPS Act in cases of chance recovery is no longer res integra. It was laid down in Jagjeet Singh Vs State (2015 )219 DLT 199 as thus:
"10. Before considering the legality of notice, it is required to be seen whether the accidental or chance recovery of narcotic drugs during search would attract the provisions of Section 50 of the NDPS Act.
11. Substantially similar issue came up for consideration before Hon'ble Supreme Court in State of Himachal Pradesh (supra), where the accused was travelling in a bus which was stopped for "traffic check" by the police officials. During checking, it was noticed that the accused was concealing something under his clothes and thereafter on checking, he was found to be concealing a polythene envelope containing charas. The Sessions Court convicted the accused by observing that the accused was in conscious possession of narcotics substance and the recovery was a chance recovery, accordingly, provisions of Section 42 of the Act relating to search and seizure were not applicable since the police officials had no prior information about the possession of charas by the accused. However, the High Court acquitted the accused on the FIR No620/2016 State Vs. Mohd Wasim Page No. 37/45 Digitally signed by ARUL ARUL Date:
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2023.09.18 0300 ground that though the search conducted was a random search but the police officers had a positive suspicion that the accused might be carrying contraband. Therefore, compliance of Section 50 of the Act was mandatory. Since no option was given to the accused, therefore, his conviction and sentence was not justified. State preferred an appeal against the acquittal of the accused and the broad submission was that the recovery of charas from him was a chance recovery. As such, in view of the Constitution Bench decision in State of Punjab v. Baldev Singh, 1999 SCC (Cri) 1080 which endorsed the view taken in State of Punjab v. Balbir Singh, 1994 SCC (Cri) 634, the personal search of accused resulting in recovery of contraband did not violate Section 50 of the Act. Hon'ble Supreme Court extracted para 25 of Baldev Singh's case which reads as follows:-
"(1) If a police officer without any prior information as contemplated under the provisions of the NDPS Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offences as provided under the provisions of Code of Criminal Procedure and when such search is completed at that stage Section 50 of the NDPS 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 accordance with the provisions of the NDPS 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 NDPS Act."
12. Thereafter it was observed by the Supreme Court that the expression "chance recovery" has not been defined anywhere and its plain and simple meaning seems to be a recovery made by chance or by accident or unexpectedly. It is true that the respondent behaved in a suspicious manner which resulted in his personal search being conducted after he disembarked from the bus. However, there is no evidence to suggest that before he was asked to alight from the bus, the police officers were aware that he was carrying a narcotic drug, even though that area may be one where such drugs are easily available. At best, it could be said that the police officers suspected the respondent of carrying drugs and nothing more. Mere suspicion, even if it is "positive suspicion" or grave suspicion cannot be equated with "reason to believe". These are two completely different concepts. It is this positive suspicion, and not any reason to believe, that led FIR No620/2016 State Vs. Mohd Wasim Page No. 38/45 Digitally signed by ARUL ARUL VARMA VARMA Date:
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to the chance recovery of charas from the person of respondent. Similarly, the positive suspicion entertained by the police officers cannot be equated with prior information. The procedure to be followed when there is prior information of the carrying of contraband drugs is laid down in the NDPS Act and it is nobody's case that that procedure was followed, let alone contemplated. Applying this to the facts herein, it is clear that the police officers were looking for passengers who were travelling ticketless on the bus in question on the highway and nothing more. They accidentally or unexpectedly came across drugs carried by a passenger (the respondent). This can only be described a recovery by chance, since they were neither looking for drugs nor expecting to find drugs carried by anybody. In view of Baldev Singh, it was not necessary for the police officers to comply with the provisions of Section 50 of the Act. As such, the appeal was allowed.
54. Thus, in the present case, the In-charge of PCR happened to chance upon the accused, who was carrying the contraband item and it was not a case where prior information was received of contraband item was being carried. Thus, this is a case where non compliance of Section 50 of NDPS Act was not mandatory, even then a Section 50 NDPS Act notice was duly served upon the accused, informing him of his right to be searched in the presence of a Magistrate or a Gazetted Officer. This right was refused to be availed by the accused. Further, the factum of service of notice u/s 50 of NDPS Act was also proved by the prosecution inasmuch as the copy of the said notice was recovered from accused from his personal search memo i.e Ex. PW1/E. The contention of Ld. Counsel the original notice was not produced on record, pales into insignificance in light of the above discussion and in light of the fact that the carbon copy FIR No620/2016 State Vs. Mohd Wasim Page No. 39/45 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.09.18 16:35:10 -0300 thereof was duly produced and proved.
E. DEPOSIT OF EXHIBITS IN FSL FOR FORENSIC EXAMINATION AND FSL REPORT.
55. The sanctity of chain of custody qua deposit of Exhibits in FSL from the Malkahan was also duly proved by the prosecution. PW- 6 ASI Umesh Kumar deposed that on 23.12.2016, Ct Naresh took 6 parcels from him to deposit the same with FSL. The witness made a note in this regard at point A against entry Ex.PW6/A. The samples were taken to the FSL through RC No 237/21/16 and the witness proved the copy of the RC as Ex. PW6/B bearing his signatures at point-A. The deposit of case property by Inspector Anwar Khan is reflected from the testimonies of IO and recovery witnesses and also from the FSL result and forwarding letter of the FSL wherein it has clearly been mentioned that the parcels 1 to 6 were bearing the seals of AK ie of Inspector Anwar Khan. The receipt of the acknowledgment form from the FSL was also proved by this witness and he deposed that Ct Naresh had brought the acknowledgement form and the same was Ex. PW6/C bearing signatures at point-B. The result of the FSL was produced by Ct Dharam Singh on 23.06.2017, as per the version of PW-6 ASI Umesh Kumar. He further deposed that he made a note in this regard at point A against entry Ex. PW6/A. The said FSL report was placed on record by IO/SI Shamsher Singh on 16.09.2023, and was exhibited as Ex. PX. The same is admissible in evidence u/s 293 FIR No620/2016 State Vs. Mohd Wasim Page No. 40/45 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.09.18 16:35:19 -0300 Cr.PC. A perusal of Ex. PX, FSL report dated 03.05.2017, reveals that on physical, Microscopic Chemical, TLC and GC-MS examination exhibits 1, 2, 3, 4, 5 and 6 were found to contain Ganja ( Cannabis). Thus, the factum of contraband item being Ganja was cogently established by the prosecution.
F. FAILURE TO EXPLAIN CIRCUMSTANCES APPEARING AGAINST THE ACCUSED
56.It was contended by the State that the accused did not avail the opportunity to explain the circumstances appearing in the evidence against him, and only put forth a mere bare denial or replied to the accusations by merely stating that 'it is incorrect'. He could not explain recovery of contraband items from him. The accused did not even put forth a plea of alibi. He only averred in his defence that he is an innocent person and that he has been falsely implicated in the present case by the police officials. He further stated that nothing had been recovered from his possession and that the alleged case property has been falsely planted upon him. It was further stated by accused that it is a false case based on concocted story made by the police officials and that his signatures were forcibly taken on some blank, semi-written and written documents by the IO. He further stated that he is an illiterate . He further averred that all the proceedings, if any, were conducted while sitting in the police station and that he is innocent.
FIR No620/2016 State Vs. Mohd Wasim Page No. 41/45
Digitally signed by ARUL ARUL Date:
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57.There is a presumption u/s 54 of the NDPS Act which lays down that in trials under the NDPS Act, it may be presumed that the accused has committed an offence, unless and until the contrary is proved. The expression' unless and until the contrary is proved', clearly imposes the burden of proving that possession of prohibited substance is legal, or that he was not so found in possession, is on the accused himself. In this case, neither the presumption could be rebutted, nor could the accused explain the circumstances appearing in evidence against him.
58. Ld. Counsel for the accused had sought to highlight certain inconsistencies in the version of the prosecution. It was submitted that there were discrepancies qua the return of weighing machine brought by Ct Shiv Kumar. In this context, Ld. Counsel had emphasized that PW-2 could not remember as to when and where the weighing machine was returned to the shopkeeper PW-7 Prince. However, this inconsistency is insignificant inasmuch as the prosecution witness, PW- Ct Shiv Kumar, and PW-7 Prince categorically affirmed the fact that the weighing machine was indeed taken by the beat constable. The other discrepancy qua place of conducting investigation proceedings also do not merit any importance in view of the fact that the proceedings took place on or in the government gypsy. This is no discrepancy qua the place of conducting proceedings. All the discrepancies pointed out by Ld. Counsel for the FIR No620/2016 State Vs. Mohd Wasim Page No. 42/45 Digitally signed by ARUL ARUL VARMA Date:
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accused fall in the realm in the minor inconsistencies and do not shake the substratum of the case of the prosecution. What is of pivotal importance is that the prosecution has successfully proved the compliance of mandatory provisions of the NDPS Act in the present case.
59.Furthermore, u/s 35 of NDPS Act, the Court shall presume the existence of a culpable mental state on the part of the accused, and it is incumbent upon the accused to prove the fact that he had no such mental state with respect to the act. It has further been clarified in Section 35(2) that the accused has to prove the above, beyond reasonable doubt and not merely by establishing preponderance of probabilities. In the present case, as discussed aforesaid, the prosecution surely has established its case beyond reasonable doubt but the accused person could not demonstrate that he did not have the requisite culpable mental state.
60. Furthermore, nothing could be elicited in the testimony of the prosecution witnesses, and nothing therein could be controverted by the accused. The veracity of the testimony of the witnesses was cogent and credible, and complete reliance can be placed upon them. In this context, it would be pertinent to reproduce the following extracts of Jagjeet Singh Vs State (2015 )219 DLT 199 "All these witnesses were subjected to lengthy cross-
examination, however, nothing material could be elicited to discredit their testimony. It has further come in their statements that some independent persons were tried to be joined, however, none agreed. Ordinarily, FIR No620/2016 State Vs. Mohd Wasim Page No. 43/45 Digitally signed by ARUL ARUL VARMA Date:
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the public at large show their disinclination to come forward to become the witness. If the testimony of the police officer is found to be reliable and trustworthy, the Court can definitely act upon the same. The Court cannot disbelieve the testimony of police officials solely on the presumption that a witness from the department of police should be viewed with distrust. This is also based on the principle that quality of the evidence weights over the quantity of evidence. These aspects have been highlighted in State of UP v. Anil Singh, 1989 SCC (Cri) 48; State (Govt. of NCT of Delhi) v. Sunil, 2001 SCC (Cri) 248; Ramjee Rai v. State of Bihar, (2007) 2 SCC (Cri) 626; Kashmirilal v. State of Haryana, (2014) 1 SCC (Cri) 441.
Appreciating the evidence on record on the anvil of the aforesaid principles, there is no acceptable reason to discard the testimony of the official witnesses which is otherwise reliable and trustworthy."
CONCLUSION
61.Ergo, in view of the reasons hereinabove discussed in extenso, this Court is of the considered view that the prosecution has proved beyond reasonable doubt that the accused Mohd Wasim was found in possession of total 18 Kgs 322 grams Ganja on 28.10.2016, at 11:45 AM Agra Canal Road, under Metro Station, Near Kalindi Kunj, within the jurisdiction of PS Jaitpur New Delhi, and is therefore convicted for the offence punishable under Section 20 b (ii) B of NDPS Act.
62.After complying with the provisions of Section 40 of the NDPS Act, the name and place of business and residence of the convict, nature of the contravention, the factum of the accused being convicted, be published in two English and two Vernacular newspapers and in news websites. Accordingly, copy of this order be sent to the DCP concerned, to do FIR No620/2016 State Vs. Mohd Wasim Page No. 44/45 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.09.18 16:36:07 -0300 the needful.
63. Put for arguments on quantum of sentence on 23.09.2023 Announced in the open court on 18.09.2023 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.09.18 16:36:18 -0300 (ARUL VARMA) ASJ-04 & Spl. Judge (NDPS) South-East District Saket Courts, New Delhi FIR No620/2016 State Vs. Mohd Wasim Page No. 45/45