Delhi District Court
State vs Lovely Miah @ Mumtaz Ali on 20 September, 2023
IN THE COURT OF SHRI ARUL VARMA, ASJ-04 AND
SPECIAL JUDGE (NDPS) SOUTH-EAST: SAKET COURTS: NEW
DELHI
CNR No. DLSE01-006193-2017
SC No 330 of 2017
FIR No. 227/2017
P.S. AMAR COLONY
State
Vs.
Lovely Miah @ Mumtaz
S/o Sh. Afzal Hussain
R/o Khitaber Kuthi, Dinhata-II
PS Dinhata Cooch Behar,
West Bengal
Mazahar Pordhari
S/o Sh. Toyab Ali
R/o Godavari Village PS Sukchar
District Dhubri Assam
........ Accused
Date of Institution : 19.08.2017
Date of reserving the Judgment : 19.09.2023
Date of Judgment : 20.09.2023
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 22.06.2017 at 01:40 PM near Gaddha Masjid, Captain Gaur Marg, Okhla Mandi, Sriniwas Puri, PS Amar Colony, New Delhi, accused accused Lovelu Miah @ Mumtaz Majhar Pordhari were found in possession of one white colour plastic sack each, which were found containing 21.09 Kg and 17.1 Kg Ganja Digitally signed by ARUL ARUL VARMA VARMA Date:
FIR No 227/2017 State Vs.Lovelu Miah @ Mumtaz & Anr. Page No. 1/66
2023.09.20 14:32:55 +0530 respectively. Further, it was also alleged that at the instance of accused Lovelu Miah @ Muntaz, on 24.06.2017, from a room of accused Lovelu Miah @ Mumtaz, situated on the ground floor of Jhuggi No S -73 Gandhi Camp, Sriniwas Puri, New Delhi within the jurisdiction of PS Amar Colony two plastic kattas were found containing 31.500 Kg of Ganja. Thereafter, both the accused persons were arrested, and investigation was conducted. Whereafter, the present chargesheet came to be filed.
CHARGES FRAMED QUA THE ACCUSED
2. vide order dated 05.09.2017, Charges under section 20/29 of NDPS Act, were framed qua the accused persons to which they pleaded not guilty and claimed trial. However, on 07.09.2018, an additional charge u/s 20 of NDPS Act was framed qua accused Lovelu Miah @ Mumtaz as on his disclosure statement, 31.500 Kg of Ganja was recovered on 24.06.2017, from a room situated on the ground floor of Jhuggi No S 73, Gandhi Camp Sriniwas Puri, New Delhi, 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 eleven witnesses, the succinct testimonies whereof are as follows:
4. PW-1 Smt. Rafikan, w/o Mohd. Yunus, deposed that a lady namely Digitally signed by ARUL ARUL Date:
VARMA VARMA 2023.09.20 14:33:08 +0530 FIR No 227/2017 State Vs.Lovelu Miah @ Mumtaz & Anr. Page No. 2/66 Salma Bibi who was earlier residing in her neighbourhood and known to her and came to her as she wanted to take on rent one room from her above house about 2 days prior to the incident/hadsa. She had seen and taken the photocopy of Aadhar Card of Salma Bibi and thereafter given one room on rent to her for Rs.1500/- per month. On the day, when the documents in this case were prepared by police, three police officials came to her house. One person was also alongwith them. The police officials had called her and asked for the key of the room taken on rent by Salma Bibi. She was not having the key so the lock of the said room was broken by said police officials with a help of a stone. There was one big bag in the room. The bag was opened and it was found containing some green colour leaves. She was told by the police officials that it was ganja. she had signed on the document prepared by police regarding seizure of ganja. The seizure memo was proved as Ex.PW1/A.
5. PW-2 HC Shekhar deposed that on 22.06.2017, she was posted as Head Constable at the office of Special Staff, South-East District, Madangir, New Delhi. On that day at about 12.00 PM (midday),he was present in his office, when a secret informer reached their office and informed SI Parvesh Kasana who was also present in the office that two persons namely Lovelu Mian @ Mumtaz Ali and Mazhar Pordhari who were resident of Gandhi Camp, Sriniwaspuri, New Delhi and used to illegally supply Ganja in various places in Delhi would come at about 1.30-2.00 Digitally signed by ARUL ARUL VARMA FIR No 227/2017 State Vs.Lovelu Miah @ Mumtaz & Anr. VARMA Date:
2023.09.20 Page No. 3/66 14:33:22 +0530 PM near Gaddha Masjid, Captain Gaur Marg, Sriniwaspuri, New Delhi on the road towards Modi Mill flyover, New Delhi for supply of Ganja to some persons, and they can be apprehended with illegal Ganja, if raided. Thereafter, SI Parvesh Kasana shared the secret information with senior officers and with their direction, from the raiding party consisting himself, PW-2, ASI Vedvir, ASI Dayanand, Const. Jitender, Const. Deepak (driver) and secret informer and after recording the secret information vide DD No.6 dated 22.06.2017 at about 12.30 PM, they left their office by their Government Gypsy bearing No.DL-1CM-4759 and reached near Gaddha Masjid, Captain Gaur Marg, Okhla Mandi at about 1.30 PM. There first IO SI Parvesh Kasana requested 4-5 passersby and 4-5 passengers near the bus stand near Gaddha Masjid to join the investigation after sharing with them the secret information but none of them agreed and left without disclosing their name or identity. In the meantime, secret informer pointed out towards two persons who were sitting on two different plastic kattas on the side of road near Gaddha Masjid, Sriniwaspuri, New Delhi at a distance of around 100 metres from the bus stand near Gaddha Masjid, and told IO that they were accused Lovelu Mian and Majahar Pordhari. Thereafter, secret informer was relieved from the spot. Thereafter, they all cordoned off both the accused persons. SI Parvesh Kasana inquired both the accused who disclosed their name as Lovelu Mian and Majahar Pordhari. Thereafter, SI Parvesh Digitally signed by ARUL ARUL FIR No 227/2017 State Vs.Lovelu Miah @ Mumtaz & Anr. Page No. 4/66 VARMA VARMA Date:
2023.09.20 14:33:37 +0530 Kasana disclosed his identity and identity of the raiding team to both the accused persons and told them that they had received secret information about accused persons supplying illegal Ganja and possibility of accused persons being in possession of Ganja (contraband) and asked the accused persons whether they wish to take search of IO and other police party members and also whether accused persons wished to be searched in the presence of any Gazette Officer/Magistrate but both the accused persons refused either to take search of the police party first or to be searched in the presence of Gazette officer/Magistrate. IO issued separate written notices u/s 50 NDPS Act to accused Lovelu Mian and Majahar which were proved as Ex.PW-2/A and Ex.PW-2/B bearing his signatures at point 'A' respectively. Both the notices were duly read over to respective accused persons which they replied vide their reply and signature at portion encircled as portion X on the body of above stated notices. As both the accused told that they were knowing only to put their signature and they could not write properly, SI Parvesh Kasana wrote their reply after asking the same from accused and taking their dictation and accused Lovelu Mian put his signature in Bengali and accused Majahar put his signature in English. Thereafter, SI Parvesh Kasana took cursory search of both the accused but nothing incriminating was found on their person. Thereafter, SI Parvesh Kasana requested 5-6 public persons who had gathered at the spot after telling them about the situation but none of Digitally signed by ARUL ARUL VARMA FIR No 227/2017 State Vs.Lovelu Miah @ Mumtaz & Anr. VARMA Date:
2023.09.20 Page No. 5/66 14:33:50 +0530 them agreed and left without disclosing their name and addresses. Thereafter, SI Parvesh Kasana checked the plastic katta on which accused Lovelu Mian @ Mumtaz Ali was sitting, after opening the katta mouth of which was tied with sutli and found containing a big packet wrapped in a Khaki colour plastic tape. Upon checking the packet after opening the same, it was found that the packet was wrapped with a red colour polythene tied with sutli all over it. The said packet was containing greenish brown leafy material. IO checked it and concluded that prima facie was appearing to be Ganja. Thereafter, IO/SI Parvesh Kasana weighed the packet received from the possession of accused Lovelu Mian on electronic weighing machine which weigh 21.900 kgms. IO separated two samples of 250 gms each with the help of weighing machine and kept them in two transparent polybags and sealed them with the help of white cloth pulinda with the seal of 'PK'. The said pulindas were given mark A1 and A2 by the IO. Rest of the Ganja received from the possession of Lovelu Mian was again sealed with the help of Khaki tape and after keeping the same in the same packet and same plastic katta with sutli, it was duly sealed with the seal of 'PK'. The case property was given mark A. Thereafter, SI Parvesh Kasana checked the plastic katta on which accused Majahar Pordhari was sitting, after opening the katta mouth of which was tied with sutli and found containing a big packet wrapped in a Khaki colour plastic tape. Upon checking the packet after opening the Digitally signed by ARUL ARUL VARMA FIR No 227/2017 State Vs.Lovelu Miah @ Mumtaz & Anr. VARMA 2023.09.20 Page No. 6/66 Date:
14:34:03 +0530 same, it was found that the packet was wrapped with a red colour polythene tied with sutli all over it. The said packet was containing greenish brown leafy material. IO checked it and concluded that prima facie was appearing to be Ganja. Thereafter, IO/SI Parvesh Kasana weighed the packet received from the possession of accused Majahar Pordhari on electronic weighing machine, it weighed 17.100 kgms. IO separated two samples of 250 gms each with the help of weighing machine and kept them in two transparent polybags and sealed them with the help of white cloth pulinda with the seal of 'PK'. The said pulindas were given mark B1 and B2 by the IO. Rest of the Ganja received from the possession of Lovelu Mian was again sealed with the help of Khaki tape and after keeping the same in the same packet and same plastic katta with sutli, it was sealed with the seal of 'PK'. The case property was given mark B. First IO SI Parvesh Kasana also filed FSL form. All the six pulindas were duly sealed with the seal of 'PK'. IO also put the impression of seal on the FSL form and after use, handed over his seal to him vide handing over memo Ex.PW-2/X bearing his signature at point A. IO seized the Ganja including the sample property seized from the possession of accused, Lovelu Mian vide seizure memo Ex.PW-2/C bearing his signature at point A. IO seized the Ganja including the sample property seized from the possession of accused, Majahar Pordhari vide seizure memo Ex.PW-2/D bearing his signature at point A. Thereafter, SI Digitally signed by ARUL FIR No 227/2017 State Vs.Lovelu Miah @ Mumtaz & Anr. ARUL Page No. 7/66 VARMA VARMA Date:
2023.09.20 14:34:15 +0530 Parvesh Kasana prepared Tehreer and handed over the same to ASI Vedvir for the registration of FIR. First IO/SI Parvesh Kasana also handed over all the six sealed pulindas, FSL form, carbon copy of both the seizure memos to ASI Vedvir with the rukka and directed him to produce the same to SHO, PS Amar Colony and get the FIR registered. Thereafter, ASI Vedvir took the rukka alongwith case property and documents to PS Amar Colony by our Government Gypsy with driver Const. Deepak. After registration of FIR, SI Yogesh Tanwar reached at the spot. First IO handed over custody of both the accused persons to the second IO, who after due inquiry arrested both the accused i.e. Lovelu and majahar vide arrest memos Ex.PW-2/E and Ex.PW-2/F and conducted their personal search vide Ex.PW-2/G and Ex.PW-2/H, all bearing his signature at point A respectively. Both the accused persons were taken to their office, after medical examination where IO interrogated them and recorded their disclosure statement Ex.PW-2/I and Ex.PW-2/J, both bearing his signature at point A respectively. On 23.06.2017 i.e. next day, he again joined IO SI Yogesh Tanwar in the investigation of present case. In his presence, IO SI Yogesh Tanwar again interrogated accused Lovelu Mian @ Mumtaz Ali who disclosed that he can get recovered more Ganja from his jhuggi at Gandhi Camp. IO recorded his disclosure statement which was proved as Ex.PW-2/K bearing his signature at point A. Pursuant to his disclosure statement, Digitally signed by ARUL ARUL VARMA FIR No 227/2017 State Vs.Lovelu Miah @ Mumtaz & Anr. VARMA Date: Page No. 8/66 2023.09.20 14:34:31 +0530 accused Lovelu Mian led the raiding team consisting he, SI Yogesh Tanwar, ASI Dayanand and some other staff, whose name he did not remember to the jhuggi of accused bearing No.S-53/73, Gandhi Camp, Sriniwaspuri, New Delhi from where at the instance of accused Lovelu, two plastic kattas kept near the bed in the room on ground floor in the said jhuggi covered with an old cloth was found and was checked by the IO SI Yogesh Tanwar, after opening the mouth of both the kattas which were tied with sutli and found containing packets wrapped with Khaki colour plastic tape. Upon checking, both the packets after opening the same, it was found that the packets were wrapped with red colour polythene tied with sutli all over it. The said packets were containing greenish brownish leafy material. IO checked them and concluded that prima facie they were appearing to be Ganja. Thereafter, IO/SI Yogesh Tanwar weighed the packets on electronic weighing machine which weighed 23.700 kgms and 7.800 kgms respectively. IO separated two samples of 250 gms each from each packet with the help of weighing machine and kept them in transparent polybags and sealed them with the help of white cloth pulindas with the seal of 'YT'. The said pulindas were given mark C1, C2 and D1, D2 respectively, by the IO. Rest of the Ganja recovered as above stated were again sealed with the help of Khaki tape and after keeping the same in the same packet and same plastic katta with sutli, separately and they were sealed in cloth pulindas and duly sealed Digitally signed by ARUL ARUL FIR No 227/2017 State Vs.Lovelu Miah @ Mumtaz & Anr. VARMA Page No. 9/66 VARMA Date:
2023.09.20 14:34:46 +0530 with the seal of YT. The case property was given mark C and D and duly sealed in the same plastic katta keeping inside the sutli and packet with the seal of 'YT' respectively. During the aforesaid proceeding of recovering Ganja and its seal and seizure took place in the presence of Smt. Rafikan, who was the owner of said jhuggi and was called by the IO and joined the investigation. The IO seized the recovered contraband alongwith duly filled FSL form vide seizure memo already Ex.PW-1/A bearing his signature at point B. After use, IO handed over the seal to him vide handing over memo Ex.PW-2/Y bearing his signature at point A. The case property alongwith FSL form and copy of seizure memo were sent to FSL Amar Colony through ASI Dayanand by the IO. IO also recorded statement of Smt. Rafikan u/s 161 CrPC. Thereafter, he alongwith IO and accused reached at Saket Court where accused was produced and sent to JC. IO recorded his statement to the abovesaid effects.
6. PW-3 ASI Dayanand deposed that on 22.06.2017, he was posted as ASI at PS Special Staff, South East District, Madangir, New Delhi. On that day, at about 12.30 PM (day), when he was present in the office, SI Parvesh Kasana called him, ASI Vedvir, HC Shekhar and Const. Amit in his room and shared the secret information received by him of accused Lovelu Mian @ Mumtaz Ali and Majhar Pordhari coming near Gaddha Masjid, Captain Gaur Marg, New Delhi at about 1.30-2.00 PM for supply Digitally signed by ARUL ARUL VARMA FIR No 227/2017 State Vs.Lovelu Miah @ Mumtaz & Anr. VARMA Date:
2023.09.20 Page No. 10/66 14:35:19 +0530 of Ganja. First IO SI Parvesh Kasana inducted him in the raiding team for the said purpose and he alongwith ASI Vedvir, HC Shekhar, Const. Amit, SI Parvesh Kasana and Const. Deepak (driver) left their office for the spot by Government Gypsy bearing No.DL-1CM-4759 with informer. At about 1.25 PM, they reached near Gaddha Masjid. Where IO requested 4- 5 passersby to join the raiding party after sharing with them secret information but none of them agreed and left the spot without disclosing their name and identity. There secret informer pointed out towards both the accused persons who were sitting separately on one white plastic katta each on the patri by the side of road near Gaddha Masjid. The secret informer was relieved from the spot. On the instruction of IO, they all cordoned off both the accused persons, who after inquiry disclosed their identity as accused Lovelu Mian @ Mumtaz Ali and Majhar Pordhari.
IO/SI Parvesh Kasana told both the accused about the secret information and asked them whether they want to take search of police party. IO also told both the accused persons that if they wish, they can be searched in presence of a Gazetted officer or Magistrate who can be called at the spot or accused persons can be taken to them but both the accused persons refused to search the police party or to be searched in the presence of Gazetted officer/Magistrate. IO served notice u/s 50 NDPS Act upon both the accused separately which were already proved as Ex.PW-2/A and Ex.PW-2/B bearing his signature at point B respectively. Reply of both Digitally signed by ARUL FIR No 227/2017 State Vs.Lovelu Miah @ Mumtaz & Anr. ARUL VARMA VARMA Date:
Page No. 11/66
2023.09.20 14:36:06 +0530 the accused persons are encircled as portion X on the carbon copy of notices Ex.PW-2/A and Ex.PW-2/B on which accused persons put their signature. Reply of accused persons had been written in the handwriting of IO. Thereafter, IO checked the plastic katta on which accused Lovelu Mian was sitting which was found containing greenish brownish leafy material. IO weighed the case property received from the possession of accused Lovelu Mian, weight of which was found 21.900 Kgms. IO separated two samples of 250 gram each with the help of weighing each and kept them in two transparent polybags and gave them mark A1 and A2. Rest of the Ganja was again sealed in the same plastic katta in the same packet and it was given mark A. All the three pulandas were sealed with the seal of 'PK'.Thereafter, IO checked the plastic katta on which accused Majhar Pordhari was sitting which was found containing greenish brownish leafy material. IO weighed the case property received from the possession of accused, weight of which was found 17.100 Kgms. IO separated two samples of 250 gram each with the help of weighing each and kept them in two transparent polybags and gave them mark B1 and B2. Rest of the Ganja was again sealed in the same plastic katta in the same packet and it was given mark B. All the three pulandas were sealed with the seal of 'PK'. Form FSL was filled and same seal was affixed on it. The entire case property was taken into possession vide separate seizure memos Ex.PW-2/C and Ex.PW-2/D bearing his signature Digitally signed by ARUL ARUL FIR No 227/2017 State Vs.Lovelu Miah @ Mumtaz & Anr. VARMA Page No. 12/66 VARMA Date:
2023.09.20 14:36:19 +0530 at point B respectively. The seal after use was handed over to HC Shekhar vide memo Ex.PW-2/X. IO prepared rukka. Rukka was handed over to ASI Vedvir alongwith case property, FSL form and copies of seizure memos with the direction that rukka be handed over to DO and case property alongwith documents be handed over to SHO. After sometime, second IO SI Yogesh Tanwar alongwith ASI Vedvir came to the spot for further investigation. The accused and documents namely, original copies of seizure memos, FSL form were handed over to SI Yogesh Tanwar. SI Yogesh prepared site plan at the instance of SI Parvesh Kasana. Second IO interrogated the accused. The accused were arrested. Their personal search and arrest memos were prepared. Original notice u/s 50 NDPS Act, Rs.12,500/-, Aadhar card and some papers were recovered from the personal search of accused Lovelu Mian @ Mumtaz. The original notice u/s 50 NDPS and some papers were recovered from the personal search of accused Majhar Pordhari. The arrest memo and personal search memos were Ex.PW-2/E to Ex.PW-2/H were prepared which bore his signatures at point B. Both the accused persons were taken to their office after their medical examination. IO also recorded disclosure statement of both the accused which were already proved as Ex.PW-2/I and Ex.PW-2/J, both bearing his signature at point B respectively. IO recorded his statement u/s 161 CrPC. On 23.06.2017, he again joined IO SI Yogesh Tanwar and HC Shekhar. Accused Mumtaz @ Digitally signed by FIR No 227/2017 State Vs.Lovelu Miah @ Mumtaz & Anr. ARUL ARUL VARMA Page No. 13/66 VARMA Date:
2023.09.20 14:36:35 +0530 Lovelu Mian on interrogation disclosed that from jhuggi No.S-53/73, Gandhi Camp, Sriniwaspuri, New Delhi, he can get recovered more Ganja. IO recorded his disclosure statement which was proved as Ex.PW- 2/K bearing his signature at point B. Pursuant to his disclosure statement, accused Lovelu Mian led them to his aforesaid jhuggi and produced two plastic kattas kept near the bed in the room of said jhuggi to the IO SI Yogesh Tanwar. The lady owner of the jhuggi name of which, he did not not remember, was also joined in the proceeding. The said two plastic white kattas were opened and found containing greenish brownish leafy material. IO weighed them which were weighing 31 kgms total. IO separated two samples of 250 gram search from each katta and gave them mark C1, C2 and D1, D2 respectively. Rest of the case property were sealed in their respective plastic kattas and were given mark C and D. All the pulandas were sealed with the seal of 'YT' and taken into possession vide memo already Ex.PW-2/Y bearing his signature at point B. IO also filled FSL form and put the same impression of the seal on the FSL form. IO handed over case property alongwith FSL form and copy of seizure memo to him with the direction to produce the same to SHO. The seal after use was handed over to HC Shekhar. He alongwith case property, FSL forms and copies of seizure memos went to police station and handed over the same to SHO. He came back to the spot after handing over the entire case property and documents to SHO and returned to the Digitally signed by FIR No 227/2017 State Vs.Lovelu Miah @ Mumtaz & Anr. ARUL ARUL VARMA Page No. 14/66 VARMA Date:
2023.09.20 14:36:50 +0530 spot where IO prepared site plan Ex.PW-3/A bearing his signature at point A. IO recorded his statement
7. PW-4 Sh. Shailendra Yadav, Senior Scientific Officer deposed that On 12.07.2017, four sealed cloth parcels were received in FSL and the same were marked to him for chemical analysis. All the four parcels were found intact and tallied as per forwarding authority specimen seals. Ex. A-1 was dried greenish brown colour fruiting and flowering vegetative material kept in a zip lock plastic pouch, stated to be 'Ganja', weight 283.3 gms approx. with cloth parcel and plastic pouch. Ex. B-1 was dried greenish brown colour fruiting and flowering vegetative material kept in a zip lock plastic pouch, stated to be 'Ganja', weight 282.2 gms approx. with cloth parcel and plastic pouch. Ex. A-1 and Ex. B-1 were having three seals of P.K and one seal of UB-1. Ex. C-1 was dried greenish brown colour fruiting and flowering vegetative material kept in a zip lock plastic pouch, stated to be 'Ganja', weight 278.6 gms approx. with cloth parcel and plastic pouch. Ex. D-1 was dried greenish brown colour fruiting and flowering vegetative material kept in a zip lock plastic pouch, stated to be 'Ganja', weight 276.3 gms approx. with cloth parcel and plastic pouch. Ex. C-1 and Ex. D-1 were having two seals of YT and one seal of UB-1. Date of examination was from 17.07.2017 to 27.07.2017. On physical, microscopic, chemical and TLC examination, Ex. A-1, B-1, C-1 and D-1 were found to be 'Ganja (cannabis)'. After the Digitally FIR No 227/2017 State Vs.Lovelu Miah @ Mumtaz & Anr. signed by ARUL Page No. 15/66 ARUL VARMA VARMA Date:
2023.09.20 14:37:17 +0530 examination, the remnants of the exhibits were sealed with the seal of "SY FSL Delhi" impression. His detailed report in this regard was proved as Ex. PW-4/A bearing his signature at point A on each page.
8. PW-5 SI Pravesh Kasana deposed that on 22.6.2017 he was posted as SI at Spl. Staff, SED having office at Madangir, New Delhi. On that day at about 12 noon when he was present in the office secret informer came and informed him that accused Lovelu Mian @ Mumtaz Ali and Majahar Pordhari R/o of Gandhi Camp, Sriniwaspuri, New Delhi and involved in supply of ganja in Delhi were about to reach between 1:30 - 2pm at Gadda Masjid, Okhla Mandi, Sriniwaspuri, New Delhi with ganja for supplying the same and they can be apprehended on immediate raid.
After inquiring secret informer and being satisfied, he produced the secret informer before Insp. Rajender Singh who also inquired him and thereafter Insp. Rajender informed Sh KP Singh, ACP over telephone about the secret information, who directed to take appropriate action. He further deposed that he prepared DD No. 6 dated 22.6.2017, Special Staff, SED, copy of which was mark PW5/X regarding secret information in compliance u/s 42 NDPS Act and forwarded its copy to Insp. Rajender Singh. With permission of senior officers, he formed a raiding party comprising he, ASI Ved Veer, HC Shekhar, Ct. Amit, Ct. Jitender, ASI Dahyanand and driver/Ct. Deepak of govt. Gypsy and they all alongwith IO kit and electronic weighing machine left their office vide DD No. 7 Digitally signed by FIR No 227/2017 State Vs.Lovelu Miah @ Mumtaz & Anr. ARUL ARUL VARMA Page No. 16/66 VARMA Date:
2023.09.20 14:37:33 +0530 dated 22.6.2017, in official gypsy with secret informer and they all left the office at 12.45pm. They took the route of BRT Corridor, Nehru Place, Modi Mill, Capt. Gaur Marg, East of Kailash and then reached near Gadda Masjid, Okhla Mandi, SN Puri. They parked the gypsy on the road side. There he requested 4-5 passersby and 4-5 passengers present at the bus stop to join investigation but none agreed showing their inability. Secret informer pointed out that both the accused who were sitting on the road near Gadda Masjid on plastic kattas respectively and told them that they were aforementioned accused. He relieved the secret informer. They reached near the accused persons and apprehended them. He disclosed his identity and identity of other team members to both the accused and after fixing their identity he told them that they were having information of you accused being in possession of ganja for which search of accused is necessary. He separately informed both the accused about their rights that their search may be conducted in presence of gazetted officer or Magistrate who may be called there or accused may be taken to them and that before offering their search accused person may take search of police party. He served notice u/s 50 NDPS Act, carbon copy of which were already proved as Ex. PW2/A and B, upon the accused persons separately. The accused refused to avail their rights. The accused told that they were illiterate and hence on their request he recorded their refusal on the said notices on their dictation vide portion encircled with red ink as Digitally signed by FIR No 227/2017 State Vs.Lovelu Miah @ Mumtaz & Anr. Page No. 17/66 ARUL ARUL VARMA VARMA Date:
2023.09.20 14:37:51 +0530 portion X. He read over the reply recorded by him to both the accused who signed on the reply at point Y. He took cursory search of both the accused but nothing incriminating was recovered from their person.
9. PW-6 HC Kapil deposed that on 22.06.2017, he was posted as head constable and working as duty officer at PS Amar Colony from 4pm to 12 midnight. At around 5.55pm, ASI Vedveer produced one rukka to him for registration of the FIR. On the basis of said rukka, he got registered present FIR through Computer Operator, copy of which was proved as Ex. PW6/A bearing his signatures at point-A. He had brought the original FIR register which was seen and returned. His endorsement on rukka was proved as Ex.PW6/B and certificate u/s 65-B of the Indian Evidence Act was proved as Ex.PW6/C, both bearing his signatures at point-A. He recorded the quaimi of FIR vide DD No. 24 dated 22.06.2017 copy of which was proved as Ex. PW-6/D.
10.PW-7 SI Ved Veer deposed that on 22.06.2017 he was posted at Special Staff, South-East. On that day at about 12 noon a secret informer came in the office and informed SI Parvesh Kasana that one Lovelu Mian @ Mumtaz and Majahar Pordhari used to supply ganja and on that day at around 1.30 PM they would go to Okhla Mandi near Gadha Masjid, Sri Niwas Puri to supply ganja to someone and they could be apprehended, if raid conducted. SI Parvesh Kasana had apprised the senior officers about the secret information. Thereafter, under the directions of inspector, Digitally signed by FIR No 227/2017 State Vs.Lovelu Miah @ Mumtaz & Anr. Page No. 18/66 ARUL ARUL VARMA VARMA Date:
2023.09.20 14:38:07 +0530 SI Parvesh Kasana had constituted a raiding party comprising of PW-7 ASI Daya Nand, HC Shekhar, Ct. Jitender and Ct. Amit. All the party members were briefed about the information. At about 12.45 PM they proceeded from their office in govt. vehicle no. DL 1 CM 4759 alongwith the secret informer went to the spot via Chirag Delhi flyover and Nehru Place and then reached at Okhla Mandi, Captain Gaur Marg near Gadha Masjid. Upon reaching there i.e. about 50 meter before the Gadha Majid the secret informer had pointed out two persons who were sitting on two white colour boras (big bags) in front of the Gadha Masjid. After pointing out the said persons as the persons about whom he gave the secret information, he went. They apprehended the above two persons and made enquiry from them. After enquiry the names of said persons revealed as Lovelu Mian @ Mumtaz and the name of another person was revealed as Majhar Pordhari. SI Parvesh Kasana had apprised both the said persons that he had secret information about having ganja in their possession. SI Parvesh Kasana had also apprised them about the legal rights and told them that their search had to be taken and the said search could be taken in presence of some Gazetted Officer or a Magistrate if they so desired. Both the persons refused to get conducted their search in presence of any such officer. Thereafter, SI Parvesh Kasana had given a notice u/s 50 NDPS Act to both the accused persons. Thereafter, the bag upon which the Lovelu was sitting opened and checked and it was found Digitally signed by FIR No 227/2017 State Vs.Lovelu Miah @ Mumtaz & Anr. ARUL ARUL VARMA Page No. 19/66 VARMA Date:
2023.09.20 14:38:17 +0530 containing one packet which was wrapped with a brown colour tape. The said packet was opened and from it ganja like substance was taken out and it was revealed to be ganja by smell. SI Parvesh Kasana had weighed the said ganja and it was found to be 21.900 kg. SI Parvesh Kasana taken out two samples of 250 grams each. Both the samples sealed with the seal of PK and remaining ganja kept in the same bag and converted it into a cloth parcel and sealed with the seal of PK. Thereafter, the bag upon which the Majhar Pordhari was sitting opened and checked and it was found containing one packet which was wrapped with a brown colour tape. The said packet was opened and from it ganja like substance was taken out and it was revealed to be ganja by smell. SI Parvesh Kasana had weighed the said ganja and it was found to be 17.100 kg. SI Parvesh Kasana taken out two samples of 250 grams each. Both the samples sealed with the seal of PK and remaining ganja kept in the same bag and converted it into a cloth parcel and sealed with the seal of PK. SI Parvesh Kasana had prepared FSL forms and put the same seal on it. He seized all the parcels and FSL forms. Thereafter, SI Parvesh Kasana prepared rukka and given to him alongwith six parcels, FSL forms and copy of seizure memo and directed him to handover the rukka to Duty Officer for registration of FIR and remaining items were given to the SHO, PS Amar Colony. After getting register the FIR, he took the copy of the FIR alongwith original rukka to the spot and there he handed over the same to ARUL FIR No 227/2017 State Vs.Lovelu Miah @ Mumtaz & Anr. Page No. 20/66 VARMA Digitally signed by ARUL VARMA Date: 2023.09.20 14:38:29 +0530 SI Yogesh Tanwar the IO of the case, who recorded his statement.
11.PW-8 SI Yogesh Tanwar deposed that on 22.06.2017, he was posted as Sub-Inspector at Special Staff, South-East District at Madangir, New Delhi. On that day, he was informed by duty officer regarding the registration of FIR of the present case on the basis of the complaint of SI Parvesh at PS Amar Colony. Upon this information, he reached at Captain Gaur Marg near gaddhe wali masjid, Srinivaspuri where he met SI Parvesh and other police officials. In the meanwhile ASI Ved Veer after getting registered the FIR, brought the copy of the same at the spot and handed over to him as the investigation was assigned to him. SI Parvesh handed over him the documents which he had prepared alongwith custody of two accused persons. He also apprised him about the proceedings conducted by him regarding the recovery of ganja from the said accused persons. He made inquiry from the accused persons and arrested them in this case and prepared the arrest memo as Ex. PW 2/E of Lovelu Miah, bearing his signature at Point A and the arrest memo of accused Majhar Pordhari which was proved as Ex. PW 2/F, bearing his signature at Point X. He conducted the personal search of accused Lovelu Miah and recovered one notice u/s 50 NDPS Act in original with some documents and cash rupees around 12 thousands. He prepared his personal search memo vide Ex. PW2/G, bearing his signature at Point X. He interrogated the accused Lovelu Miah and recorded his disclosure Digitally signed by FIR No 227/2017 State Vs.Lovelu Miah @ Mumtaz & Anr. ARUL ARUL VARMA Page No. 21/66 VARMA Date:
2023.09.20 14:38:42 +0530 statement vide Ex. PW2/I, which bore his signature at Point X but no incriminating could be recovered in pursuance of the said disclosure. He conducted the personal search of accused Majhar Pordhari and recovered one notice u/s 50 NDPS Act in original with some documents and railway ticket from Cooch Behar to Anand Vihar, Delhi. He prepared his personal search memo vide Ex. PW2/H, bearing his signature at Point X. He interrogated the accused Majhar Pordhari and recorded his disclosure statement vide Ex. PW2/J, which bore his signature at Point X but no incriminating could be recovered in pursuance of the said disclosure. He inspected the spot on the pointing of SI Parvesh and prepared the site- plan thereof which was already exhibit PW 5/B, which bore his signature at Point X. Both the accused persons were got medically examined and lodged with the lock-up. On the next day i.e on 23.06.2017, both the accused persons were produced before the Hon'ble Court and accused Majhar Pordhari was remanded to judicial custody whereas he obtained the police custody remand of accused Lovelu Miah for 2 days vide the carbon copy of his request was proved as Ex. PW 8/A, which bore his signature at Point X. After obtaining the police remand, he again interrogated the accused Lovelu Miah and recorded his disclosure statement which was proved as Ex. PW2/A, which bore his signature at Point X. During the interrogation, the accused disclosed that about 2-3 days prior to that day, he had kept 'ganja' in his rented jhuggi at Gandhi Digitally signed by FIR No 227/2017 State Vs.Lovelu Miah @ Mumtaz & Anr. Page No. 22/66 ARUL ARUL VARMA VARMA Date:
2023.09.20 14:38:57 +0530 Camp, Srinivaspuri and he could get recovered the remaining 'ganja' lying in the said jhuggi as some ganja they have already sold. In pursuance of his disclosure statement he led them to his rented jhuggi at Gandhi Camp, Srinivaspuri. Upon reaching there, the said jhuggi was searched in the presence of its owner namely Smt. Rafikan (PW-1). He found two plastic kattas (bags) of white colour. Both the kattas were found containing some vegetation substance which was revealed to be 'ganja'. He weighed both the kattas one by one. In one katta the total ganja was found 23.700 Kg, Mark C was given to it and in another katta ganja was found 7.800 Kg ganja, Mark D was given to it. He had drawn two samples of 250 gram each of ganja from each katta i.e. total four samples. The samples drawn from katta Mark C were given Mark C-1 and C-2 and the samples drawn from katta Mark D were given Mark D-1 and D-2.
12.PW-9 ACP Sh. Udai Bir Singh Bidhuri deposed that on 22.06.2017, he was posted as SHO at PS Amar Colony. On that day at about 06:30 PM, ASI Ved Veer went to his office and produced six sealed packets sealed with the seal of 'PK', form FSL and carbon copy of seizure memo.
He inspected them and called MHC(M) case property in his office. He affixed his seal 'UB1' on all the six pullandas Mark A, A-1, A-2 and Mark B, B-1, B-2. He put his seal on the FSL form also and wrote down the FIR number on the parcels, FSL form and on the carbon copy of seizure Digitally signed by FIR No 227/2017 State Vs.Lovelu Miah @ Mumtaz & Anr. ARUL ARUL VARMA Page No. 23/66 VARMA Date:
2023.09.20 14:39:14 +0530 memo. He further deposed that he directed MHC(M) CP to deposit the above case property in the malkhana. He lodged DD no. 27A in this regard which was proved as Ex. PW9A. ASI Ved Veer left his office after depositing the pullandas. On 24.06.2017, ASI Dayanand came to his office at about 12:30 mid night and handed over six parcels Mark C, C-1, C-2 and D, D-1, D-2, sealed with the seal of 'YT'. He affixed his seal 'UB1' on all the six pullandas Mark C, C-1, C-2 and Mark D, D-1, D-2. He put his seal on the FSL form also. He directed MHC(M) CP to deposit the above case property in the malkhana. He lodged DD no. 19A in this regard which was proved as Ex. PW9B. ASI Dayanand left his office after depositing the pullandas.
13.PW-10 Inspector Rajender deposed that on 22.06.2017, he was posted as Inspector In-charge Special Staff, South East District at Madangir. On that day at about 12:15 PM, SI Parvesh Kasana brought one secret informer in his office and apprised him the secret informer and furnished the secret information that two boys namely Lovely Miah and Mazhar would bring 'ganja' to supply the same in the area of Gandhi Camp, Sriniwaspuri. He verified the information from the secret informer. He conveyed the secret information to Sh. K. P. Singh, ACP (operations), Special Staff, telephonically. Sh. K. P. Singh, ACP, had directed to conduct raid, in accordance with the secret information. SI Parvesh Kasana had written DD No. 6 in respect of the information in compliance Digitally signed by ARUL FIR No 227/2017 State Vs.Lovelu Miah @ Mumtaz & Anr. ARUL VARMA VARMA Date: Page No. 24/66 2023.09.20 14:39:27 +0530 of Section 42 NDPS Act. The said DD was put up before him and he forwarded the same and sent to ACP by dak. SI Parvesh Kasana constituted a raiding party and departed from the office vide DD No. 7.
The said DD was proved as Ex. PW10/A. The said DD was sent by way of a letter to the ACP. The copy of the same was also proved as Ex. PW/B. After registration of the case, the investigation was assigned to SI Yogesh Tanwar, who conducted the investigation of this case. On 23.06.2017, SI Yogesh Tanwar gave a report u/s 57 NDPS Act in respect of the arrest and seizure of contraband vide Ex. PW8/B and he forwarded the same to the ACP (operations) and the same bore his signature at point B. On 24.06.2017, SI Yogesh Tanwar gave a report u/s 57 NDPS Act in respect of the seizure of contraband vide Ex. PW8/C and he forwarded the same to the ACP (operations) and the same bore his signature at point B.
14.PW-11 ACP Sh. K.P Singh deposed that on 22.06.2017, he was posted as ACP (operations), South East District. On that day, at about 12:30 PM, Inspector Rajender, Special Staff had telephonically informed him about the secret information that two persons namely Lovely Miah and Majhar Pordhari would come in the area of Sriniwaspuri for the supply of 'ganja'. He further deposed that he directed the Inspector to constitute the raiding party and take necessary action in accordance with the information. He further deposed that on the same day, an information u/s 42 NDPS Act in Digitally signed by FIR No 227/2017 State Vs.Lovelu Miah @ Mumtaz & Anr. ARUL ARUL VARMA Page No. 25/66 VARMA Date:
2023.09.20 14:39:44 +0530 writing received in his office, sent by SI Parvesh Kasana, through Insp. Rajender, appended with the copy of DD No. 6 recorded with the secret information. His reader had put up the aforesaid information before him alongwith DD No. 6. He had seen the report with DD No. 6, the same was taken on record and shown to the witness. PW-11 proved the report which was received in his office and seen by him was proved as Ex. PW11/A, bearing his signature at point A. The copy of DD No. 6 was also proved as Ex. PW11/B. PW-11 further deposed that on 23.06.2017, one report u/s 57 NDPS Act regarding the seizure of contraband substance i.e. 'ganja' and the arrest of accused persons was received in his office. The same was put up before him and he had seen the same. On 24.06.2017, one report u/s 57 NDPS Act regarding the seizure of contraband substance i.e. 'ganja' at the instance of accused Lovely Miah by SI Yogesh Tanwar was received in his office. The same was put up before him and he had seen the same. He further deposed that the entry no. 350 dated 22.06.2017 was pertaining to the receiving of information u/s 42 NDPS Act. The same was proved as Ex. PW11/E. The entry no. 355 pertaining to the receiving of report u/s 57 NDPS Act qua the seizure of contraband and arrest of both accused persons, sent by SI Yogesh Tanwar. The same was proved as Ex. PW11/F. The entry no. 357 pertaining to the receiving of report u/s 57 NDPS Act qua seizure of contraband from accused Lovely Miah, sent by SI Yogesh Tanwar. The Digitally signed by ARUL FIR No 227/2017 State Vs.Lovelu Miah @ Mumtaz & Anr. ARUL VARMA VARMA Date:Page No. 26/66
2023.09.20 14:39:57 +0530 same was proved as Ex. PW11/G. Original register seen and returned. He further deposed that those entries made by the then Reader.
15.The relevancy of the witnesses examined are succinctly delineated in the following tabular form:
PW NAME RELEVANCE
1 Smt Rafikan w/o Mohd She was the landlady of accused
Yunus and the accused had got
recovered 31 Kg of Ganja from
his residential jhuggi and she was
the witness of the recovery of
Ganja from the said jhuggi.
2 HC Shekhar He was part of the raiding team
which apprehended the accused
and effected recoveries of
contraband item from the accused
persons.
3 ASI Dayanand He was part of the raiding team
which apprehended the accused
and effected recoveries of
contraband item from the accused
persons.
4 Sh. Shailendra Yadav, He was the FSL expert, who
Senior Scientific proved his report viz Ex.PW4/A
Digitally
signed by
ARUL ARUL
Date:
VARMA
VARMA 2023.09.20
14:40:08
+0530
FIR No 227/2017 State Vs.Lovelu Miah @ Mumtaz & Anr. Page No. 27/66
Officer, whereby it was opined that the
seized item contained Ganja.
5 SI Pravesh Kasana He is the first IO of the case who
received secret information,
conducted investigation, leading
to arrest of accused persons and
effected recoveries of contraband
items from them on 22.06.2017.
6 HC Kapil He was the Duty Officer in PS
Amar Colony who registered the
present FIR i.e Ex. PW6/A on
the basis of rukka sent by PW5
SI Parvesh Kasan through PW7
ASI Ved Veer.
7 SI Ved Veer He was part of the raiding team
which apprehended the accused
and effected recoveries of
contraband item from the accused
persons.
8 SI Yogesh Tanwar He was the second IO to whom
investigation was assigned after
registration of the FIR.
Moreover, in pursuant of
Digitally
signed by
ARUL ARUL
Date:
VARMA
VARMA 2023.09.20
14:40:21
+0530
FIR No 227/2017 State Vs.Lovelu Miah @ Mumtaz & Anr. Page No. 28/66
disclosure statement of accused,
he made the further recovery of
total 31.500 Kg of Ganja in two
different kattas ie 23.700 gram
and 7.8 Kg grams. After
completing investigation, he filed
the chargesheet.
9 ACP Udaibir Singh He was posted as SHO received
Bidhuri sealed articles, FSL Form,
Carbon copies of seizure memos
from ASI Ved Veer on
22.06.2017 on which he affixed
his seal of 'UBI' and deposited
the same in the Malkhana after
making entry in Register No. 19
in compliance of Section 55 of
the NDPS Act. He also recorded
DD No 27 A in this regard vide
Ex. PW9/A on 24.06.2017, he
further received from ASI
Dayanand 6 parcels sealed with
seal of YT and which he affixed
Digitally
signed by
ARUL
ARUL VARMA
VARMA Date:
2023.09.20
14:40:33
FIR No 227/2017 State Vs.Lovelu Miah @ Mumtaz & Anr. +0530
Page No. 29/66
his seal UBI and deposited in the
Malkhana. He further recorded
DD no 19A in this regard, which
is Ex. PW/9 B.
10 Inspector Rajender He was the inspector incharge of
Special Staff Madangir, who
received secret information of
contraband from SI Parvesh
Kasana and he telephonically
informed the ACP Sh. K.P Singh
about the information. He also
sent DD No 6 recorded in
compliance of Section 42 of
NDPS Act to the ACP alongwith
two reports of u/s 57 NDPS Act.
11 ACP Sh. K.P Singh He was the ACP operation. He
received the secret information
telephonically from Inspector
Rajender Special Staff. He also
received DD no 6 recorded in
compliance of Section 42 of
NDPS Act and the two reports u/s
Digitally
signed by
ARUL
ARUL VARMA
VARMA Date:
2023.09.20
14:40:42
+0530
FIR No 227/2017 State Vs.Lovelu Miah @ Mumtaz & Anr. Page No. 30/66
57 of NDPS Act through
inspector Rajender.
STATEMENT OF ACCUSED
16.Accused was examined u/s 313 Cr.PC. In their defence, they averred that they do not know anything about this case and have been falsely implicated in this case. Accused Lovelu Miah @ Mumtaz and Majhar Pordhari stated that they are innocent and that nothing was recovered from their possession. Accused further stated that they were lifted by the police officials from Kabada shop of one Malik in Sriniwaspuri and that police officials have wrongly implicated them in this false case. They further averred that It is a false and concocted story created by police officials. Accused further averred that they had nothing to do with the alleged offence and that the case property, if any, was planted upon them by the police officials and that police officials forcibly took their signatures on some blank, semi-written and written papers. Further, accused lead evidence in their defence.
ARGUMENTS OF LD. ADDL. PUBLIC PROSECUTOR FOR THE STATE AND LD. DEFENCE COUNSEL
17. 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 Digitally signed by ARUL ARUL Date:
VARMA VARMA 2023.09.20 14:41:00 +0530 FIR No 227/2017 State Vs.Lovelu Miah @ Mumtaz & Anr. Page No. 31/66 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 their statement, the accused nowhere explained any circumstance proved against them and put to them during their examination. The accused also did not claim any prejudice for non compliance of any provision, if any,.
18.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 persons unless and until the same is proved contrary to the satisfaction of this Court.
19. It was further submitted that initially after receiving the secret information, the compliance of Section 42 of NDPS Act has been done as the same was reduced in writing vide DD No-6 vide Ex. PW10/A which was sent to the ACP through PW-10 Inspector Rajender, In charge Special Staff. The information was also conveyed to the ACP through the inspector telephonically and the ACP had directed to constitute a raiding party and take necessary action in accordance with secret information. Thus, the compliance of Section 42 of NDPS Act has been done and has Digitally signed by ARUL ARUL FIR No 227/2017 State Vs.Lovelu Miah @ Mumtaz & Anr. Page No. 32/66 VARMA VARMA Date:
2023.09.20 14:41:12 +0530 been proved successfully. Ld. Addl PP for State placed reliance on Bahadur Singh Vs State of Haryana (2010) 4 SCC 445.
20. It was further contended that as far as the contention of Ld. Counsel for accused, that the search warrants were not taken by PW-8 SI Yogesh Tanwar who made recovery from the house of the accused, in compliance of the relevant provision of NDPS Act, it is submitted that the search warrants in the present case were not taken but the IO/PW-8 had made a DD erntry in his office regarding his departure for making the recovery from the house of accused in pursuance of his disclosure statement that is how the compliance of relevant provision has been done substantially though no specific warrants taken. Thus, this contention of Ld. Counsel for accused has no legal force and is liable to be ignored.
21.Ld. Addl PP for State further contended that as per the evidence after apprehending the accused persons they were apprised about the secret information and their legal rights that their search in order to recover some contraband substance, could be conducted in the presence of some Gazetted Officer or Magistrate, if they so desire. It was also contended that the written notices u/s 50 of NDPS Act were also served upon both accused persons separately in this regard, however, both the accused persons had refused to avail the legal rights and only thereafter the recovery was effected from the bodily possession of the accused persons.
Digitally signed by ARUL ARUL Date:
VARMA VARMA 2023.09.20 14:41:26 +0530 FIR No 227/2017 State Vs.Lovelu Miah @ Mumtaz & Anr. Page No. 33/66 The proceedings and the testimony in respect of the compliance of Section 50 of NDPS Act is believable and there is no reason to discard the same. Hence, the compliance of Section 50 of NDPS Act has been done and proved successfully. It was further submitted that though there was no need to comply with the provision of u/s 50 of NDPS Act in the present case as the recovery was effected from the kattas and not from the bodily search but even then to show the fairness in the investigation, the compliance of Section 50 of NDPS Act was done.
22. 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 concerned on both occasion (as the recovery was effected twice in the present case) who complied with the provisions u/s 55 of NDPS Act as he affixed his seal of UBI on the parcels and the FSL form on and put the FIR Number both occasions, and then he deposited the same with MHC(M) in the Malkhana, which reflects from the exhibited entry of register no 19 of Malkhana. The SHO also had recorded a DD 27 A which is Ex. PW9/A and DD no 19 A vide Ex. PW9/B in this regard on both occasions. The entry in the register no 19 and the said DD has been proved. It was also argued that the report u/s 57 of NDPS Act regarding the seizure and arrest also prepared and sent to ACP. The said report has also been proved during trial. Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.09.20 14:41:42 +0530 FIR No 227/2017 State Vs.Lovelu Miah @ Mumtaz & Anr. Page No. 34/66
23. 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 as Smt Rafikan, who was examined as PW-1 was an independent witness, who proved the recovery of contraband item from accused. It was further submitted that in such cases, independence evidence is required but accused cannot be acquitted merely because non production of independent witness. Ld. Addl PP for State placed reliance on State of Rajasthan Vs Udai Lal (2008) 11 SCC 408.
24. Ld. Addl PP for State responded against the contention of non compliance of Section 52 A of NDPS Act that Section 51 A of NDPS Act is meant for drawing the representative samples of the case property so that the remaining case property can be disposed of and the samples drawn by the IO at the spot which were sent to FSL is not against the provisions, therefore the contention regarding non compliance of Section 52 A is liable to be ignored.
25.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 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.09.20 14:41:55 +0530 FIR No 227/2017 State Vs.Lovelu Miah @ Mumtaz & Anr. Page No. 35/66 long time. It was thus submitted that the case has been proved beyond reasonable doubt and accused persons are liable to be held guilty for the offence they are charged with and accused persons ought to be convicted.
26.Per contra, Sh. Rizwan Ali, Ld. Counsel for accused Mazhar Pordhari s submitted that the accused was apprehended with 17.01.Kg of Ganja and therefore he was allegedly found to be in possession of intermediate quantity of Ganja. Ld. Counsel thus submitted that the accused Mazhar Pordhari should not be penalized for possessing commercial quantity of Ganja. It was further submitted that prosecution failed to establish the conspiracy between both the accused persons and therefore accused ought to be acquitted from Section29 of NDPS Act Ld. Counsel for accused placed reliance on Amar Singh Ramji Bhai Barot Vs State of Gujarat Appeal (crl) 1218 of 2005.
27. Sh. M Nabi Ld. Counsel for accused Lovelu Miah @ Mumtaz submitted that there was non compliance of Section 52 A of NDPS Act inasmuch as the samples were taken at the time of seizure and were not drawn before the Ld. Magistrate. Ld. Counsel for accused placed reliance on Simarjeet Singh Vs State of Punjab 2023 LiveLaw (SC) 570.
28. It was further submitted that with respect to 2 nd recovery of contraband item from the house of accused Lovelu Miah, three different versions have come on record. It was submitted that PW-1 Rafikan deposed that at the time of recovery, the police officials did not have keys of the lock and Digitally signed by ARUL ARUL VARMA FIR No 227/2017 State Vs.Lovelu Miah @ Mumtaz & Anr. VARMA Date: Page No. 36/66 2023.09.20 14:42:09 +0530 therefore the lock was broken with the help of stone. However, PW-8 Yogesh Tanwar averred that it was PW-1 Rafikjan who gave the keys of the room. It was further submitted that PW-2 HC Shekhar averred that the key of the room was in possession of accused Lovelu Miah.
29. It was further submitted that as per the testimony of PW-1 Rafikan, it was accused Mazhar Pordhari and no Lovelu Miha, who had come alongwith police at the time of 2nd recovery to the house of Rafikan. It was further submitted that the PW-1 Rafikan could not identify the contraband items before the Court. Ld. Counsel for accused pointed out to the cross- examination of PW-1 Rafikan to contend that the witness denied the suggestion that on 24.06.2017 as per the seizure memo Ex. PW1/A, it was accused Lovelu Miah who had come alongwith police to the room of the jhuggi given by PW-1 Rafikan to accused Lovelu Miah. She volunteered that she did not see accused Lovelu Miah getting recovered with contraband item.
30.Ld. counsel further submitted that no public witnesses were joined to prove the proceedings. In this context, Ld. Counsel invited the Court's attention to the statement of PW-2 HC Shekhar, who categorically deposed that nobody was called from the neighbourhood of the accused at the time of recovery of katta containing Ganja. Further, PW-3 averred that even nobody was called from Masjid as a witness. Further, PW-5 did Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.09.20 14:42:22 +0530 FIR No 227/2017 State Vs.Lovelu Miah @ Mumtaz & Anr. Page No. 37/66 not make efforts to join public witness from Masjid and from residential area. It was submitted that even PW-8 SI Yogesh Tanwar submitted that he did not call any person from the said places ie Mosque, Bus stand and Dargah.
31.It was submitted that per the testimony of PW-2, the ganja was weighed without Katta which is not possible to do so neither the witness remember the weight size and colour of the weighing machine.
32.Ld. Counsel further submitted that it is strange that PW-5 averred that he had never met secret informer prior to the registration of the present case. It was further submitted that in fact the secret informer did not give details of the accused while giving secret information. Ld. Counsel also submitted that the departure entry showing the departure of raiding team from police station was not produced on record. Ld. Counsel for accused further submitted that IO averred that he reached at the spot at 05:30 PM whereas PW-5 averred that IO/SI Yogesh Tanwar reached at the spot at 06:30 PM.
33.It was submitted that as per testimony of PW-8 SI Yogesh Tanwar, even though it was shown that accused was taken one day police custody remand. However, in reality he was taken no where as there is no departure or arrival entry in his office PS Amar Colony Special Staff. It was further submitted that no search warrants were taken from superior officer while searching the house of accused Lovelu Miah. It was further Digitally signed by ARUL FIR No 227/2017 State Vs.Lovelu Miah @ Mumtaz & Anr. ARUL VARMA Page No. 38/66 VARMA Date:
2023.09.20 14:42:33 +0530 submitted that as per testimony of PW-8 he did not collect any proof of tenancy or ownership of accused Lovelu Miah in the house where recovery took place.
34. Ld. Counsel submitted that there was delay in sending the samples to the FSL ie 20 days. It was submitted that PW-8 SI Yogesh Tanwar also could not explain the delay rather he made absurd statement that since the process of sending the samples to the FSL was under supervision of concerned SHO, therefore he could not assign any specific reason for delay of 20 days in sending the samples to FSL. It was submitted that PW-8 SI Yogesh Tanwar averred that he did not know who took the samples to FSL from Malkhana. Further, no prosecution witness was cited, who could prove that the samples were taken from FSL to Malkhana. Ld. Counsel thus submitted that there are discrepancies in the version of prosecution and benefit thereof must enure in favour of accused persons and they ought to be exonerated.
STATEMENT OF REASONS FOR THE DECISION A. APPREHENSION OF ACCUSED AND RECOVERY OF ALLEGED CONTRABAND FROM THEM AND COMPLIANCE OF SECTION 42 OF NDPS ACT
35. The manner in which the accused were apprehended has been elucidated by the testimonies of the members of the raiding team party especially PW -2 HC Shekhar, PW-3 ASI Dayanand PW-7 SI Ved Veer and PW-5 Sipraves Kasana. They all deposed in similar vein that secret information Digitally signed by ARUL ARUL VARMA FIR No 227/2017 State Vs.Lovelu Miah @ Mumtaz & Anr. VARMA Date:
2023.09.20 14:42:45 Page No. 39/66 +0530 was received that two persons namely Lovelu Miah and Mazhar Pordhari, who used to illegally supply Ganja in various places in Delhi would come at about 1:30 to 02:00 PM near Gaddha Masjid Captain Gaur Marg Sri Niwas Puri, New Delhi on the road towards Modi Mill Flyover for supply of Ganja. Once the raiding team reached the spot, the secret informer pointed out to the accused persons and the raiding team apprehended both the accused persons and after complying with the provision of Section 50 of NDPS Act, conducted the search of kattas present with accused.
36.The IO checked the katta upon which accused Lovely Miah was sitting and after opening the katta, Ganja weighing 21.9 Kg was recovered therefrom. The IO separated two samples of 250 grams each and converted the samples into two pullandas mark A-1 and A-2 and remaining Ganja was again sealed in the same packet with the seal of PK and was given mark A.
37.The IO checked the katta upon which accused Mazhar Pordhari was sitting and after opening the katta, Ganja weighing 17.1 Kg was recovered therefrom. The IO separated two samples of 250 grams each and converted the samples into two pullandas mark B-1 and B-2 and remaining Ganja was again sealed in the same packet with the seal of PK and was given mark B.
38.PW-5 SI Praves Kasana had deposed that on 22.06.2017, when he was posted as SI Special Staff SED, at 12 noon he received the secret Digitally signed by ARUL ARUL VARMA FIR No 227/2017 State Vs.Lovelu Miah @ Mumtaz & Anr. VARMA Date:
2023.09.20 Page No. 40/66 14:43:09 +0530 information and he prepared DD No 6 dated 22.06.2017 in compliance of Section 42 of NDPS Act and forwarded its copy to Inspector Rajender Singh. The said DD entry was proved by him as Ex.PW5/X. Thereafter, inspector Rajender was examined as PW-10 and he corroborated the version of PW-5 by averring that SI Pravesh Kasana had brought the secret informer to the office and he had verified the information from the secret informer and had also conveyed the secret information to Sh K.P Singh ACP operations telephonically and the ACP had directed him to conduct the raid. This witness also deposed that DD No 6 was put up before him and he had forwarded the same to the ACP by dak. He even proved the departure entry of the raiding team ie DD No 7 vide Ex. PW10/A. Lastly, the ACP Sh.K.P Singh was examined as PW-11 and he affirmed that information u/s 42 NDPS Act in writing, which was sent by SI Parvesh Kasana through Inspector Rajender was received in his office alongwith DD No 6. He deposed that his Reader had put up the aforesaid report alongwith DD No 6 and proved the same as Ex. PW11/B. Thus, there was compliance of Section 42 of NDPS Act by the prosecution.
39. The 2nd IO PW-8 SI Yogesh Tanwar conducted further proceedings and arrested the accused persons vide arrest memo Ex. PW2/E of Lovelu Miah bearing his signatures at point-A, and arrest memo of accused Mazhar Pordhari Ex. PW2/F bearing his signatures at point-A. He Digitally signed by FIR No 227/2017 State Vs.Lovelu Miah @ Mumtaz & Anr. Page No. 41/66 ARUL ARUL VARMA VARMA Date:
2023.09.20 14:43:22 +0530 further conducted personal search of Lovely Miah vide personal search memo Ex. PW2/G and personal search memo of Mazhar Pordhari vide Ex. PW2/H. It is pertinent to note that the 2nd IO interrogated accused Lovelu Miha and recorded his disclosure statement Ex. PW2/I and thereafter on 23.06.2017 obtained Police custody remand of accused Lovelu Miah of two days vide carbon copy of his request Ex. PW8/A bearing his signatures at point-X.
40.PW-8 SI Yogesh Tanwar further deposed that after obtaining PC remand he again interrogated accused Lovely Mia and recorded his disclosure statement Ex. PW2/A bearing his signatures at point-X and the accused divulged that about 2-3 days ago he had kept ganja inhis rented jhuggi at Gandhi Camp Sriniwas Puri and could get recovered the remaining Ganja. Thereafter, the accused led the police party to the said jhuggi, and the jhuggi was searched in the presence of its owner PW-1 Smt Rafikan. Two plastic kattas of white colour was found, one containing 23.7 kg Ganja which was given mark C and another katta containing 7.8 kg Ganja which was given mark B. samples were also drawn from the above kattas and were sent to FSL.
41. Ld. Counsel for accused vehemently contended that the second recovery of the contraband item from the house of accused Lovelu Miah could not be established by the prosecution. It was submitted that the recovery witness, who was a public person namely Smt Rafikan, was examined as Digitally signed by ARUL FIR No 227/2017 State Vs.Lovelu Miah @ Mumtaz & Anr. ARUL VARMA VARMA Date:
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2023.09.20 14:43:36 +0530 PW-1, and she turned hostile qua the factum of recovery. Ld. Counsel for accused Lovelu Miah had submitted that Rafikan had pointed out to accused Mazhar Pordhari as a person who had accompanied the police at the time of 2nd recovery dated 24.06.2017. there is a further discrepancy qua the manner in which the lock of the house was broken/opened. Furthermore, it was contended that the Rafikan could not identify the contraband items before the Court.
42. In rebuttal, Ld. Addl PP for State contended that de hors Rafikan, there are other police witnesses who cogently proved the recovery of the contraband item. Ld. Addl PP for State placed reliance of Udai Lal (supra) to contend that in the said case also the Hon'ble High Court had discarded the case of the prosecution on inter alia the grounds that a witness had turned hostile, however, the Hon'ble Supreme Court set aside the order of Hon'ble High Court on this score. It would be apt to reproduce the following extracts of Udai Lal (supra) in this regard, whereby the Hon'ble Court held as thus:
"11 Though the prosecution has recorded the statement of independent witnesses PW 1 Dinesh, PW 2 Iqbal, PW 3, Ajay, PW 4, Ramesh, these four independent witnesses have turned hostile. However, as rightly pointed out by the learned counsel for the State, the said witnesses have admitted to put their signatures at the required place on the documents prepared on the spot by the prosecution. Like PW 1 other witnesses, namely, PW 2, PW 3 and PW 4 have also admitted that they put their signatures at the proper place on the documents prepared by the police. It is relevant to note that the Special Judge has pointed out that out of these Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.09.20 14:43:46 +0530 FIR No 227/2017 State Vs.Lovelu Miah @ Mumtaz & Anr. Page No. 43/66 witnesses even a single witness has not given any such statement that the said signatures have been taken from them under terror, pressure or without their free consent. The Special Judge has also observed that while the said witnesses are educated and have admitted to have signed with their free consent, it is proved that all the four witnesses were present on the spot where the prosecution party has very much carried out the proceedings. These material aspects have not been properly considered by the High Court except discarding them on the ground that they turned hostile."
43. In the present case too, it was rightly argued by Ld. Addl PP for State that the prosecution has established the recovery of contraband item from the house of the accused. PW-8 the IO/SI Yogesh Tanwar had made a DD entry in the office regarding his departure for making the recovery from the house of accused Lovelu Miah @ Mumtaz. It is of little significance whether the house belongs to the said accused or not as long as the recovery has been made pursuant to his disclosure statement.
44. It is pertinent to note that recovery is a part of investigation and permissible under Section 27 of the Indian Evidence Act.
Section 27. Provided that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence in the custody of a Police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.
45.In the cause célèbre Pulukuri Kottaya Vs Emperor 50 AIR 1947 PC 67, explaining this facet, it was laid down as follows:
"Section 27, which is not artistically worded, provides an exception to the prohibition imposed by the preceding section, and enables certain statements made by a person in police custody to be proved. The Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.09.20 14:43:56 +0530 FIR No 227/2017 State Vs.Lovelu Miah @ Mumtaz & Anr. Page No. 44/66 condition necessary to bring the section into operation is that the discovery of a fact in consequence of information received from a person accused of any offence in the custody of a Police officer must be deposed to, and thereupon so much of the information as re-lates distinctly to the fact thereby discovered may be proved. The section seems to be based on the view that if a fact is actually dis-covered in consequence of information given, some guarantee is af-forded thereby that the information was true, and accordingly can be safely allowed to be given in evidence; but clearly the extent ofthe information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. Normally the section is brought into operation when a person in po-lice custody produces from some place of concealment some object, such as a dead body, a weapon, or ornaments, said to be connected with the crime of which the informant is accused"
46.In State of NCT of Delhi v Navjot Sandhu@Afsan Guru (2005) 11 SCC 600 , relying on Pulukuri Kottaya, observed that :
"The first requisite condition for utilizing Section 27 in support of the prosecution case is that the investigating police officer should depose that he discovered a fact in consequence of the information received from an accused person in police custody. Thus, there must be a discovery of fact not within the knowledge of police officer as a consequence of information received. Of course, it is axiomatic that the information or disclosure should be free from any element of compulsion. The next component of Section 27 relates to the nature and extent of information that can be proved. It is only so much of the information as relates distinctly to the fact thereby discovered that can be proved and nothing more."
47.In Mukesh &Anr. Vs State (NCT of Delhi) (2017) 6 SCC 1 guidelines were laid on how a statement of dis-closure has to be appreciated:
"137 On a studied scrutiny of the arrest memo, statements recorded under Section 27 and the disclosure made in pursuance thereof, we find that the recoveries of articles belonging to the informant and the victim from the custody of the accused persons cannot be dis carded. The recovery is founded on the statements of disclosure. The items that have been Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.09.20 14:44:07 +0530 FIR No 227/2017 State Vs.Lovelu Miah @ Mumtaz & Anr. Page No. 45/66 seized and the places from where they have been seized, as is limpid, are within the special knowledge of the ac cused persons. No explanation has come on record from the accused persons explaining as to how they had got into possession of the said articles. What is argued before us is that the said recoveries have really not been made from the accused persons but have been planted by the investigating agency with them. On a reading of the evidence of the witnesses who constituted the investigating team, we do not notice anything in this regard. The submission, if we allow ourselves to say so, is wholly untenable and a futile attempt to avoid the incriminating circumstance that is against the accused persons"
48. In the present case, the IO SI Yogesh Tanwar had testified that after taking accused Lovelu Miah on police remand, he again interrogated him and recorded his disclosure statement Ex. PW2/A bearing his signatures at point-X. The accused disclosed that he had kept Ganja in a rented jhuggi at Gandhi Camp. In pursuance of the said disclosure statement, accused led the police team to the said jhuggi at Gandhi Camp wherefrom contraband item in two plastic kattas was recovered, which was later on found to be Ganja. A perusal of testimony of PW-1 Smt Rafikan also corroborates the factum of recovery of the abovesaid two kattas on 24.06.2017. Thus, on this material aspect, PW-1 has supported the case of the prosecution. Even otherwise, the other police witnesses namely PW-2 HC Shekhar, PW-3 ASI Dayanand, and the IO/PW-8 SI Yogesh Tanwar have proved the recovery of contraband item from the said jhuggi pursuant to disclosure statement of accused Lovelu Miah @ Mumtaz. Thus, recovery of the contraband item pursuant to the dis-closure Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.09.20 14:44:15 +0530 FIR No 227/2017 State Vs.Lovelu Miah @ Mumtaz & Anr. Page No. 46/66 statement made by the accused clearly link his involvement in the commission of the offence.
49. Next, it was contended by Ld. Counsels for accused persons that as per the deposition of the prosecution witnesses, public persons were not joined during the investigation proceedings. However, this contention of Ld. Counsel for the accused cannot be totally countenanced. A perusal of statement of PW-3 ASI Dayanand would reveal that on 22.06.2017, at about 01:25 PM, when the raiding team had reached Gaddha Masjid, the IO had requested 4-5 passersby to join the raiding team party after sharing the then secret information but none of them agreed and left the spot without disclosing their name and identity. Similarly, PW-2 HC Shekhar also deposed that the 1st IO SI Pravesh Kasana had requested 4-5 passerby and 4-5 passengers near Gaddha Masjid to join the investigation. PW-5 SI Pravesh Kasana himself deposed that he had requested 4-5 passerby and 4-5 passenger present at the bus stop to join the investigation but none agreed showing their inability. Significantly, in this context, it would be useful to peruse the following extracts of Ajmer Singh (supra) whereby the Hon'ble Court held as thus:
"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 Digitally signed by and PW 5, Maya Ram, which is on record, that efforts were ARUL ARUL VARMA VARMA Date:
2023.09.20 14:44:25 +0530 FIR No 227/2017 State Vs.Lovelu Miah @ Mumtaz & Anr. Page No. 47/66 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. 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."
50.Thus, the testimony of police witnesses cannot be disregarded merely on account of non joining of public witnesses. B. COMPLIANCE OF SECTION 55 OF THE NDPS ACT BY THE SHO
51.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."
52.In the present case, PW-5 SI pravesh Kasana, the 1st IO had deposed that after conducting seizure and sealing of the case property, he had prepared tehrir Ex. PW5/A bearing his signatures at point-A and handed over the Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.09.20 14:44:36 +0530 FIR No 227/2017 State Vs.Lovelu Miah @ Mumtaz & Anr. Page No. 48/66 same to PW/ASI Ved Veer for registration of FIR alongwith all the 6 sealed pullandas, FSL Form, carbon copies of both the seizure memos with direction to produce the same case property before the SHO PS Amar Colony. It was averred by this witness that ASI Ved Veer left the spot with the above articles towards PS Amar Colony in the government gypsy.
53.This fact was corroborated by PW-7 SI Ved Veer who deposed that PW/SI Pravesh Kasana had prepared the rukka and had given to him the 6 parcels, FSL Forms and copy of seizure memos and had directed him to hand over the rukka to the duty officer for registration of FIR and to hand over the remaining items to the SHO PS Amar Colony.
54. Qua the 2nd recovery from accused Lovelu Mia, PW-3 ASI Dayanand deposed that pursuant to the disclosure statement of accused Lovelu Miah @ Mumtaz, on 23.06.2017, the accused led the police party to his jhuggi and produced two plastic kattas near the bed in the room of the jhuggi. After seizure and sealing proceedings were over, the IO filled the FSL form and put the seal of YT thereon. The witness deposed that the IO handed over the case property alongwith FSL form and copy of seizure memo to him, with direction to produce the same before the SHO. PW-3 ASI Dayanand categorically deposed that he alongwith case property, FSL forms and copies of seizure memos went to the police station and handed over the same to the SHO and came back to the spot after handing Digitally signed by ARUL FIR No 227/2017 State Vs.Lovelu Miah @ Mumtaz & Anr. ARUL VARMA VARMA Date:
Page No. 49/66
2023.09.20 14:44:50 +0530 over the entire case property to the SHO.
55. The receipt of the above case property was established by PW-9 ACP Uday Bir Singh Bidhuri, who was posted at PSAmar Colony as SHO. He deposed that on 22.06.2017, at about 06:30 PM PW-7 SI Ved Veer had come to his office and produced 6 sealed packets sealed with the seal of PK, FSL form and carbon copy of seizure memo. The witness called the MHC(M) in his office, affixed his seal of UB1 on all 6 pullandas mark A, A-1, A-2, and Mark B, B-1, B-2. He further put his seal on the FSL form and wrote down the FIR number on the parcels, FSL Form and carbon copy of seizure memo and directed the MHC(M) to deposit the case property in the malkhana Vide DD No 27A. The witness proved the above DD entry as Ex. PW9/A.
56. Similarly, qua the second recovery, PW-9 ACP Udai Bir Singh Bidhuri deposed that on 24.06.2017, ASI Dayanand came to his office at about 12:30 Mid night and handed over 6 parcels mark C, C-1, C-2 and D, D-1, D-2 sealed with the seal of YT whereupon he affixed his seal of UB1. The witness deposed that he put his seal on FSL form also directed the MHC(M) to deposit the case property in the malkhana Vide DD No 19A. The witness proved the above DD entry as Ex. PW9/B.
57. 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 Digitally signed by ARUL FIR No 227/2017 State Vs.Lovelu Miah @ Mumtaz & Anr. ARUL VARMA VARMA Date: Page No. 50/66 2023.09.20 14:45:01 +0530 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
58.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."
59.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 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 Digitally signed by provisions relating to that stage of proceedings and inspires ARUL ARUL VARMA VARMA Date:
2023.09.20 14:45:12 +0530 FIR No 227/2017 State Vs.Lovelu Miah @ Mumtaz & Anr. Page No. 51/66 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)"
60. PW- 8 SI Yogesh Tanwar, who was the 2nd IO deposed that he prepared the report u/s 57 of NDPS Act (inadvertently typed as u/s 50 of NDPS Act in his deposition) and sent to the ACP through Inspector and he proved the copy of the report as Ex. PW8/B bearing his signatures at point-A. He further deposed that he prepared a second report u/s 57 of NDPS Act regarding the recovery proceedings at the instance of accused Lovelu Miah @Mumtaz and the report was sent to the ACP through Inspector. The witness proved the report u/s 57 of NDPS Act as Ex. PW8/C bearing his signatures at point-A. This fact was corroborated by PW-10 Inspector Rajendra who deposed that on 24.06.2017 that SI Yogesh Tanwar gave report u/s 57 of NDPS Act in respect of seizure of contraband vide Ex. PW8/C, and this witness forwarded the same to the ACP Operations. He proved the report already exhibited as Ex. PW8/C bearing his signatures at point-B. Thus, the above witnesses proved the factum of sending report u/s 57 of NDPS Act to their immediate superior.
61.The receipt of the above report in the office of the ACP was proved by the ACP Sh. K.P Singh himself, who was examined as PW-11. He Digitally signed by ARUL ARUL VARMA VARMA Date:
FIR No 227/2017 State Vs.Lovelu Miah @ Mumtaz & Anr. Page No. 52/66
2023.09.20 14:45:24 +0530 deposed that on 23.06.2017, one report u/s 57 of NDPS Act regarding the seizure of contraband substance and the arrest of accused was received in his office and was put up before him and he had seen the same. The said report was proved by him as Ex. PW11/C bearing his signatures at point- A. He further corroborated the fact that on 24.06.2017 another report u/s 57 of NDPS Act regarding the seizure of contraband substance at instance of accused Lovelu Mia by SI Yogesh Tanwar was received in his office, was put up before him and he had seen the same. This witness proved the report as Ex. PW11/D. Thus, there was in toto compliance of Section 57 of NDPS Act.
D. COMPLIANCE OF SECTION 50 NDPS ACT
62.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)"
63.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 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.09.20 14:45:36 +0530 FIR No 227/2017 State Vs.Lovelu Miah @ Mumtaz & Anr. Page No. 53/66 an empowered officer.
64.In the present case, it was contended by Ld. Addl PP for State that the recovery was effected from plastic kattas in possession from the accused and not from the body of the accuse, and thus compliance of Section 50 of NDPS Act is not mandatory. This Court concurs with submission of Ld. Addl PP for State inasmuch as it is trite that Section 50 NDPS Act can be invoked in the cases where the contraband substance is recovered as a consequence of body search of the accused and in case the recovery of contraband is made from a container carried by the accused, the provisions of Section 50 of NDPS Act would not be attracted. In Jarnail Singh Vs State of Punjab (2011) 3 SCC 521 it was held as thus:
"15 The next submission made by Mr. Ujjal Singh is that there has been non compliance of Section 50 of the NDPS Act, in that requisite option was not given to the appellant, as to, whether he wanted to be searched in the presence of a Gazetted Officer or a Magistrate. We are unable to accept the aforesaid submission. Inspector Ram Pal (PW4) has clearly stated that the option was duly given to the appellant. The appellant had, in fact, signed on the consent statement expressing his confidence to be searched in presence of the aforesaid witness. Similarly, Satpal Singh PW5 has also stated that before affecting the search, the accused/appellant was given the necessary option as to whether he wanted to be searched before a Gazetted Officer or a Magistrate. This witness also stated that the appellant reposed his confidence in Inspector Rampal. In such circumstances, it cannot be held that there was non compliance with Section 50 of the NDPS Act.
16. This apart, it is accepted that the narcotic/opium, i.e., 1 kg. and 750 grams was recovered from the bag (thaili) which was being Digitally signed by carried by the appellant. In such ARUL ARUL VARMA VARMA Date:
2023.09.20 14:45:45 +0530 FIR No 227/2017 State Vs.Lovelu Miah @ Mumtaz & Anr. Page No. 54/66 circumstances, Section 50 would not be applicable. The aforesaid Section can be invoked only in cases where the drug/narcotic/NDPS substance is recovered as a consequence of the body search of the accused. In case, the recovery of the narcotic is made from a container being carried by the individual, the provisions of Section 50 would not be attracted."
65.Even then the prosecution has complied with the provisions of Section 50 of NDPS Act. A perusal of statement of the raiding team members viz. PW-2 HC Shekhar, PW-3 ASI Dayanand, PW-7 ASI Ved Veer and PW- IO/SI Parvesh Kasana would reveal that at the time of apprehension of the accused persons, the IO/SI Parvesh Kasana disclosed his identity and the identity of the raiding team to both the accused persons and apprised them that they had received secret information about the accused persons supplying illegal Ganja and there were possibility of accused persons being in possession of Ganja and had informed the accused their right to be searched in the presence of any Gazetted Officer/Magistrate but both the accused persons refused to avail their legal right. The notices u/s 50 of NDPS Act served upon accused Lovelu Miah @ Mumtaz and Mazhar Pordhari were proved as Ex.PW2/A and Ex. PW2/B by prosecution witnesses. Further, PW-5 deposed that since the accused told that they were illiterate hence on their request, he recorded their refusal on the above said notices and proved the same vide portion encircled with red ink as portion X. He also read over the reply recorded by him to both the accused who signed on the reply at point Y. The prosecution witnesses Digitally signed by ARUL ARUL VARMA FIR No 227/2017 State Vs.Lovelu Miah @ Mumtaz & Anr. VARMA Date: 2023.09.20 Page No. 55/66
14:45:56 +0530 further deposed that inter alia the original notice u/s 50 of NDPS Act was recovered from the personal searches of both the accused i.e. personal search memo of Lovelu Miah Ex. PW2/G and personal search memo of accused Mazhar Pordhari Ex.PW2/H. E. DEPOSIT OF EXHIBITS IN FSL FOR FORENSIC EXAMINATION AND FSL REPORT.
66. The sanctity of chain of custody qua deposit of Exhibits in FSL from the Malkhana was also duly proved by the prosecution. PW-2 HC Shekhar deposed that the case property alongwith FSL form and copy of seizure memo were sent to FSL through Ct Narender and as per the acknowledgement and the forwarding letter with the FSL report Ex. PW4/A the samples were deposited in sealed and intact condition. This circumstance clearly ruled out any chance of tampering with sample parcels.
67.The FSL report Ex. PW4/A was proved by Sh Shailender Yadav Senior Scientific Officer, Chemistry, FSL Rohini. He deposed that on 12.07.2017, 4 sealed clothes parcels were received in FSL and the same were marked to him for chemical analysis. He affirmed the fact that all the 4 parcels were found intact and tallied as per forwarding authority specimen seals. He deposed that on physical, microscopic, chemical and TLC examination, the 4 exhibits Ex. A1 B1, C1 and D1 were found to be Ganja. He also sealed the remnants of the exhibits with the seal of SY Digitally signed by ARUL ARUL VARMA VARMA Date:
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2023.09.20 14:46:06 +0530 FSL Delhi. Even in his cross examination, he deposed that his report Ex. PW4/A is a complete report as per the SOP. He denied the suggestions of the Ld. Counsel for the accused and stuck to his instance that he had examined the contraband physically, microscopically, chemically (using colour test fast B Blue salt) and TLC examination (using petroleum ether and ether mobile face) and also averred that as per the SOP, it was not necessary to mention the name of all chemical used in the examination in the report. Thus, the factum of contraband item being Ganja was cogently established by this witness.
68. It was lastly submitted that the prosecution had not complied with Section 52-A of NDPS Act as the samples were not drawn in the presence of Magistrate thereby violating the mandate of Simarjeet Singh Vs State (supra).
69. In this context, it would be apt to peruse the seminal verdict of Surendra Kumar Vs CBI Bail Application no 1212/2023 dated 22.08.2023 whereby the Hon'ble Court observed as thus:
"21 This Court finds support in M. Prabhulal vs. Assistant Director (2003) 8 SCC 449, wherein the Hon'ble Supreme Court declined to exclude relevant evidence merely on the ground that it is obtained by illegal search or seizure. Also, a coordinate Bench of this Court in order dated 06.07.2021 in BAIL APPLN. 1416/2021 titled Arvind Yadav vs. Govt of NCT Delhi, held as under:
"11. ...... It is in the light of these facts referring to Section 52A of the NDPS Act which deals with the disposal of the seized narcotic drugs and psychotropic substances that the Supreme Court noted that after the seizure of the narcotic drug or psychotropic substance Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.09.20 14:46:16 +0530 FIR No 227/2017 State Vs.Lovelu Miah @ Mumtaz & Anr. Page No. 57/66 is made the officer in- charge will as soon as possible prepare an inventory of such narcotic drugs or psychotropic substance containing the details relating to their description, quantity, quality, mode of packaging, marks, identifying particulars etc. and thereafter file an application to the Magistrate for drawing of the samples. In para-17 of the report Supreme Court further noted that considering the provisions of Section 52A (4) of the NDPS Act which provides that samples to be drawn and certified by the Magistrate in compliance with sub-sections (2) and (3) of Section 52A would constitute primary evidence for the purpose of the trial. Hence the question of drawing of samples at the time of seizure which often takes place in the absence of a Magistrate does not fall into the scheme of the Act.
12. Section 52A was inserted by the Amendment Act of 1989 w.e.f. 29th May, 1989. The provision relates to the disposal of the seized narcotic drugs and psychotropic substance and Section 52A (1) provides that the Central Government may having regard to hazardous nature of any narcotic drugs or psychotropic substance, their vulnerability to their substitution, constraints of proper storage space or any other relevant consideration by notification published in the Official Gazette, specify the narcotic drugs or psychotropic substance which may as soon as after their seizure be disposed of by such officer. Thus the provision relates to disposal of the drug after the same is seized so as to rule out substitution, misuse and being hazardous. It is not unknown that applications under Section 52A NDPS Act are also filed at the stage of appeal seeking permission of the Court to dispose of the narcotic drugs and psychotropic substance. The procedure prescribed under Section 52A NDPS Act and as ordained by Supreme Court in Mohan Lal (supra) is required to be mandatorily followed however, the issue in the present case is whether non-
compliance of this procedure which is applicable for disposal of the narcotic drugs and psychotropic substances would vitiate the trial in case immediately on seizure samples are drawn in the absence of a Magistrate even before they are deposited in the malkhana for being sent to FSL to seek a report as to the nature of the contraband for the purposes of filing the charge-sheet. The decision in Mohan Lal (supra) does not canvas that the procedure followed by the investigating agencies like the Directorate of Revenue Intelligence which takes samples on the spot resulted ARUL VARMA in an illegality so as to vitiate the trial. Conscious of Digitally signed by ARUL VARMA Date: 2023.09.20 14:46:25 +0530 FIR No 227/2017 State Vs.Lovelu Miah @ Mumtaz & Anr. Page No. 58/66 the complicity of the matter, Supreme Court in para 18 of the report in Mohan Lal (supra) noted that there is no gainsaid that such a conflict shall have to be resolved in favour of the statute on first principles of interpretation but the continuance of the statutory notification in its present form is bound to create confusion in the minds of the authorities concerned instead of helping them in the discharge of their duties. The Supreme Court thus directed the Central Government to re-examine the matter and take suitable steps in the above direction. Needless to note that till date no further amendments to the statutory provision or by rescinding the Standing Order has been brought out.
13. By this petition, petitioner seeks bail on the ground of non- compliance of Section 52A of the NDPS Act, however, in view of the fact that the trial does not stand vitiated by drawing the samples at the spot in the absence of a Magistrate for being sent to FSL analysis for filing a appropriate charge-sheet before the Special Court for ascertaining the nature of contraband and whether the sanctity of drawing the samples was vitiated for the non-presence of the Magistrate would be an issue to be seen during the course of trial, hence this Court finds no ground to grant bail to the petitioner on this ground."
70.As far as the contention qua non compliance of Section 52 A NDPS Act is concerned, it was contended by Ld. Addl PP for State that the said provision is only essential for drawing representative samples of the case property so that the remaining case property can be disposed of. A perusal of Simarjeet Singh (supra) reveals that therein a serious doubt was created about the prosecution's case that the substance recovered was a contraband. The verdict of acquittal was recorded as the case of the prosecution was not free from suspicion and the same was not established beyond a reasonable doubt. However, in the present case, the prosecution has established its case beyond reasonable doubt inasmuch as there has Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.09.20 FIR No 227/2017 State Vs.Lovelu Miah @ Mumtaz & Anr. 14:46:39 +0530 Page No. 59/66 been compliance of all the mandatory provisions of law viz. Section 42, Section 50, Section 55 and Section 57 NDPS Act coupled with the mandatory presumptions u/s 35 and 54 NDPS Act. There is nothing to doubt the veracity of the claim of the prosecution and it is not a case where trial has been vitiated due to Section 52 A NDPS Act.
71. Next, it was contended by Ld. Counsel for the accused that there was a delay in sending the samples to the FSL and the delay of 20 days was not explained cogently by the prosecution. It was submitted that PW-8 SI Yogesh Tanwar shirked his responsibility to explain the delay in sending the samples to the FSL, to the SHO. This contention of Ld. Counsel too cannot be countenanced. In Jarnail Singh Vs State of Punjab AIR 2011 SC 964, the Court observed as thus:
"22. Mr Ujjal Singh then submitted that there was a delay of twelve days in sending the sample of narcotic for chemical examination. This submission, in our opinion, is without any factual basis. The trial court as well as the High Court, on examination of the entire material, concluded that there was sufficient independent evidence produced by the prosecution regarding the completion of link evidence. Therefore, the delay in sending the sample parcel to the office of the chemical examiner pales into insignificance. We are of the considered opinion that mere delay in sending the sample of the narcotic to the office of the chemical examiner would not be sufficient to conclude that the sample has been tampered with. There is sufficient evidence to indicate that the delay, if any, was wholly unintentional
23.This Court had occasion to deal with a similar issue, in Balbir Kaur v. State of Punjab [(2009) 15 SCC 795 : (2010) 3 SCC (Cri) 997] . The Court made the following observations: (SCC p. 803, para 24) "24. As far as delay in sending the samples is Digitally signed by ARUL concerned, we find the said contention untenable in ARUL VARMA VARMA Date:
2023.09.20 14:46:49 +0530 FIR No 227/2017 State Vs.Lovelu Miah @ Mumtaz & Anr. Page No. 60/66 law. Reference in this regard may be made to the decision of this Court in Hardip Singh case [Hardip Singh v. State of Punjab, (2008) 8 SCC 557 : (2008) 3 SCC (Cri) 580] wherein there was a gap of 40 days between seizure and sending the sample to the chemical examiner. Despite the said fact the court held that in view of cogent evidence that opium was seized from the appellant and the seals put on the sample were intact till it was handed over to the chemical examiner, delay itself is not fatal to the prosecution case."
72. Further, the relevant portion of decision in Khet Singh Vs Union of India, Appeal (Crl) 31 of 2000 decided by Hon'ble Supreme Court on 20.03.2002 is reproduced hereunder:
"Law on the point is very clear that even if there is any sort of procedural illegality in conducting the search and seizure, the evidence collected thereby will not become inadmissible and the court would consider all the circumstances and find out whether any serious prejudice had been caused to the accused. If the search and seizure was in complete defiance of the law and procedure and there was any possibility of the evidence collected likely to have been tampered with or interpolated during the course of such search or seizure, it could be said that the evidence is not liable to be admissible in evidence."
73.In the case in hand, the delay is only of 20 days, and in light of the above judgments and taking into account that no prejudice has been caused to the accused, the delay is certainly not fatal to the case of prosecution. Also admittedly, the seals on the sample were intact and tallied. F. FAILURE TO EXPLAIN CIRCUMSTANCES APPEARING AGAINST THE ACCUSED
74.It was contended by the State that the accused did not avail the opportunity to explain the circumstances appearing in the evidence Digitally signed by ARUL ARUL Date:
VARMA VARMA 2023.09.20 14:46:59 +0530 FIR No 227/2017 State Vs.Lovelu Miah @ Mumtaz & Anr. Page No. 61/66 against them and only put forth a mere bare denial or replied to the accusations by merely stating that 'it is incorrect'. They could not explain recovery of contraband items from them. The accused did not even put forth a plea of alibi. They only averred that they are innocent and that nothing was recovered from their possession. Accused further stated that they were lifted by the police officials from Kabada shop of one Malik in Sriniwaspuri and that police officials have wrongly implicated them in this false case. They further averred that It is a false and concocted story created by police officials. Accused further averred that they had nothing to do with the alleged offence and that the case property, if any, was planted upon them by the police officials and that police officials forcibly took their signatures on some blank, semi-written and written papers.
75.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 they were 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 them.
76.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 Digitally signed by ARUL FIR No 227/2017 State Vs.Lovelu Miah @ Mumtaz & Anr. ARUL VARMA VARMA Date: Page No. 62/66 2023.09.20 14:47:09 +0530 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.
77. 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, 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 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.09.20 14:47:23 +0530 FIR No 227/2017 State Vs.Lovelu Miah @ Mumtaz & Anr. Page No. 63/66 aforesaid principles, there is no acceptable reason to discard the testimony of the official witnesses which is otherwise reliable and trustworthy."
78. Lastly, it was argued by Ld. Counsel for accused Mazhar Prodhari that he was apprehended with only 17.01 Kg of Ganja ie intermediate quantity and therefore he should not be penalized for possessing commercial quantity of Ganja. It was submitted that the prosecution was unable to sustain the charge of criminal conspiracy between both the accused persons namely Lovelu Miah and Mazhr Pordhari. It was submitted that merely because both the accused were found together collectively with commercial quantity of contraband item, they ought not to be collectively charged or convicted for possession of commercial quantity of contraband, solely on this basis sans any other cogent proof.
79.At this juncture, it would be apt to reproduce the following extracts of Amar Singh (supra), whereby the Hon'ble Court ordained as thus:
"Although, at first blush, the argument of the learned counsel appeared attractive, on careful appreciation of the facts on record we are satisfied that the High Court judgment is fully justified and needs to be upheld. It is true that the High Court proceeded on the footing that there was a criminal conspiracy between the appellant and the deceased, Danabhai Virabhai Rabari. In our view, however, there was no warrant for this conclusion at all as there is no evidence to suggest that there was any such abetment and/or criminal conspiracy within the meaning of Section 29 of the NDPS Act. The appellant and Danabhai Virabhai Rabari were found together, but individually carrying the recovered substances. Hence, it was not possible for the High Court to take the view that Section 29 was attracted."
Digitally signed by ARUL ARUL VARMA VARMA Date:
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80. A perusal of record reveals that apart from the fact that both the accused were found together, the prosecution has not been able to establish the charge of conspiracy between them. No phone call details or bank accounts connecting both the accused have been placed on record. Even the prosecution witnesses have not deposed qua the factum of both the accused harbouring a criminal conspiracy for supplying of commercial quantity of contraband item. Thus, this court concurs with the submission of Ld. Counsel for accused and the accused persons are liable to be exonerated for the offence punishable u/s 29 of NDPS Act.
CONCLUSION
81. 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 Lovelu Mia @ Mumtaz was found in possession of total 21.09 Kg of Ganja on 22.06.2017 near Gaddha Masjid, Captain Gaur Marg, Okhla Mandi, Sriniwas Puri, PS Amar Colony, New Delhi, and further on 24.06.2017, accused Lovelu Miah @ Mumtaz got recovered two plastic kattas containing 31.5 Kgof Ganja from Jhuggi No S 73 Gandhi camp, Sriniwas Puri, New Delhi and is therefore convicted for the offence punishable under Section 20 (b) (ii) (C) of NDPS Act. Further, accused Mazhar Pordhari was found in possession of 17.1 Kg on 22.06.2017 at 01:40 PM near Gaddha Masjid, Digitally signed by ARUL ARUL VARMA FIR No 227/2017 State Vs.Lovelu Miah @ Mumtaz & Anr. VARMA Date:
2023.09.20 Page No. 65/66 14:47:45 +0530 Captain Gaur Marg, Okhla Mandi, Sriniwas Puri, PS Amar Colony, New Delhi and is therefore convicted for the offence punishable under Section 20 (b) (ii) (B) of NDPS Act.
82. 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 the needful.
83. Put for arguments on quantum of sentence on 23.09.2023 Digitally Announced in the open court ARUL ARUL signed by VARMA on 20.09.2023 Date:
VARMA 2023.09.20 14:47:57 +0530 (ARUL VARMA) ASJ-04 & Spl. Judge (NDPS) South-East District Saket Courts, New Delhi FIR No 227/2017 State Vs.Lovelu Miah @ Mumtaz & Anr. Page No. 66/66