Delhi District Court
State vs Mohd. Sahid & Ors. on 9 August, 2017
IN THE COURT OF DR. SATINDER KUMAR GAUTAM,
SPECIAL JUDGE;NDPS SOUTH DISTRICT, SAKET
SC No. 6681/2016
FIR No. 156/2011
u/s 21 (c) of NDPS Act
PS - Crime Branch
DLST010000452011
State
versus
Mohd. Sahid ..........accused no. 1
s/o Sh. Abdul Shakoor
r/o Bazar no. 4, near Masjid Ramganj
Mandi, District, Kota (Raj.)
Aamir Khan @ Naharu ..........accused no. 2
s/o Sh. Aziz Khan
r/o Mohalla Kasba Kajipura,
near Masjid PS Kasba Kajipura
District Sihore (MP)
Date of filing of charge sheet : 27th September 2011
Arguments heard on : 12th July 2017
Judgment announced on : 19th July 2017
State vs Mohd. Sahid & ors.
SC No. 6681/2016 page no. 1 of 70
J U D G M E N T
1.The prosecution case in brief is that on 09.06.2011 at about 09:30am SI Rajbir Singh (PW8) received an information about two persons namely, Aamir Khanr/o M. P. and Mohd. Sahid r/o Rajasthan, who used to supply Heroin, will come to supply Heroin to someone in between 11:30am to 12:30am on pavement I. P. park gate, near Bus stop Sarai Kalen Khan, Delhi and if raid is conducted, then they could be apprehended alongwith contraband. SI Rajbir Singh (PW8) produced the secret informer before Sh. Kuldeep Singh (PW5) Inspector, Narcotic Cell at about 09:45am, who also made some inquiries from the secret informer and after being satisfied, he informed to Sh. Bir Singh, ACP, Narcotic Cell about the information by telephone, who directed to conduct further proceedings. SI Rajbir Singh (PW8) recorded the said information vide DD No 13 A (Ex. PW4/A) and copy of the same was handed over to Inspector Kuldeep Singh u/s 42 of NDPS Act. Thereafter, On the directions of Inspector Kuldeep Singh (PW5), SI Rajbir Singh (PW8) formed a raiding party consisting of himself, HC Parminder Singh (PW6), Ct. Kheta Ram, Ct. Jai Prakash and Ct. Sandeep. SI Rajbir Singh (PW8) took IO bag, Field Testing Kit and electronic weighing scale with him. State vs Mohd. Sahid & ors.
SC No. 6681/2016 page no. 2 of 70 Thereafter, at about 10:20am vide DD no. 14, they all left the office for the spot in two cars i.e. one government vehicle bearing registration number DL1CF5839, in which secret informer, SI Rajbir Singh (PW8), HC Parmender and Ct. Kheta Ram were sitting and which was driven by Ct. Jai Prakash and the other private car bearing registration number DL 7CL1342, which was driven by Ct. Sandeep. Thereafter, they proceeded towards spot via Pushta road, Vikas Marg, turn after Nizamuddin Flyover and reached at the gate of I. P. Park at about 11:00am. On the way at near Ramesh Park bus stop on Pushta Road, they asked five public persons to join the police proceedings, after apprising them about the above secret information but none agreed and they all left the place without disclosing their names and addresses on one or other genuine grounds. At the bus stop after the Nizamuddin flyover, they again asked five public persons to join the police proceedings, after disclosing the secret information to them but none again agreed and they all left the place without disclosing their names and addresses on one or other genuine grounds. They parked their vehicles 50 meters ahead of IP park on the service road towards the ITO and the drivers of both the vehicles were directed by SI Rajbir Singh (PW8) to remain present in the vehicles and bring the vehicles, on being signaled.
SC No. 6681/2016 page no. 3 of 70
2. SI Rajbir Singh (PW8), Ct. Kheta Ram and secret informer had taken their positions at the outside of gate of I. P park towards ITO. He took his position at the opposite side of SI Rajbir Singh towards Sarai Kalen Khan. At about 11:50am, two persons had come from Sarai Kalen Khan side on foot and they were having bags on their right shoulders. The secret informer had informed that the person who was wearing the cream colour shirt and black colour pant and was having greenish colour bag on his shoulder is Aamir Khan and the other person who is wearing white shirt and blue colour jeans and having black colour bag is accused Mohd. Sahid. Thereafter, the secret informer left the spot. Both the accused had come stood in front of the gate on the pavement and they were watching for someone. They had waited for 34 minutes and after that they tried to left the spot but they were over powered with the help of staff at about 12:00noon.
3. SI Rajbir Singh (PW8) had called both vehicles at the spot. SI Rajbir Singh (PW8) had given his introduction to the accused persons and disclosed that he had a secret information that they were having Heroin and had also told them that their search was to be conducted and if they required, then a Gazetted Officer or a Magistrate could be called at State vs Mohd. Sahid & ors.
SC No. 6681/2016 page no. 4 of 70 the spot and their search could be conducted in his presence. Both accused were told that if they wanted, they could also take the search of the police party and their vehicles. Separate written Notices u/s 50 of NDPS Ex. PW6/A and Ex. PW6/C) were given to the accused persons . After going through the same, both accused have refused for their search before Gazetted Officer or Magistrate or to take the search of police party and vehicles and they had written their reply Ex. PW6/B and Ex. PW6/D.
4. So many public persons gathered there and SI Rajbir Singh (PW8) had requested 45 public persons to join the investigation but none of them had agreed and they all left the spot without disclosing their names and addresses. Thereafter, SI Rajbir Singh (PW8) had checked the bag of accused Mohd. Sahid on which ELEEZA was written. The bag was having 34 chains and the main chain, which was situated in the middle of the bag, was opened and one transparent polythene containing some light brown (matiala) colour substance was found in the said polythene and the polythene was tied with the rubber band. The rubber band was removed and some material from the said polythene was taken out for checking. The said material was checked with help of Field Testing Kit and it was found "Heroin". The recovered polythene bag was weighed with the help of electronic weighing machine and was found to be 2 kg State vs Mohd. Sahid & ors.
SC No. 6681/2016 page no. 5 of 70 200 grams. IO/SI Rajbir Singh had taken out two samples of five grams each out of the same and these samples of "Heroin" were kept into separate small plastic pouches and converted into the separate cloth pullandas and were sealed with the seal of 2BPS NB Delhi and these sample parcels were given srl. no. A and B. the remaining Heroin was put back in the same transparent polythene and tied with the same rubber band and kept in the same bag and the bag was also converted into a cloth pullanda and also sealed with the seal of 2 BPS NB Delhi. FSL form was also filled up by the IO at the spot and the same as well as the pullandas were seized vide seizure memo Ex. PW6/E.
5. Thereafter, bag of Aamir Khan of light green colour was checked, on which Fashion Diesel was written. This bag was having three chains and two hanging strings were also affixed on that bag. On checking, one transparent polythene which was also containing some light brown (matiala) colour substance, was found in the bag and the said polythene was tied with the rubber band. The rubber band was removed and some material from the said polythene was taken out for checking and the same on testing with Field Testing Kit was also found to be Heroin. The recovered polythene bag was weighed with the help of electronic weighing machine and was found to be 2 kg . IO/SI Rajbir Singh State vs Mohd. Sahid & ors.
SC No. 6681/2016 page no. 6 of 70 had taken out two samples of five grams each out of the same and these samples of Heroin were kept into separate small polythene pouches and converted into the separate cloth pullandas and were sealed with the seal of 2BPS NB Delhi and these sample parcels were given sl. no. D and E. The remaining Heroin was put back in the same transparent polythene and tied with the same rubber band and kept in the same bag and the bag was also converted into a cloth pullanda and also sealed with the seal of 2 BPS NB Delhi. The sl. no. F was given to the said pullanda. FSL form was also filled up by the IO at the spot and the same as well as the pullandas were seized vide seizure memo Ex. PW6/F.
6. Thereafter, IO/SI Rajbir Singh had prepared rukka (Ex. PW7/B) and handed over the same alognwith all pullandas, FSL forms and carbon copies of seizure memos to Ct. Kheta Ram at around 03:30pm with the direction that rukka be handed over to duty officer for registration of FIR and other articles i.e. carbon copy of seizure memos, FSL forms and all six pullandas shall be handed over to SHO. Driver/Ct. Jai Prakash also accompanied Ct. Kheta Ram and they proceeded to Police Station by the Government Vehicle.
7. Thereafter, at about 05:00pm, ASI Mahender Singh (PW7) had come at the spot as the investigation was assigned to him alongwith State vs Mohd. Sahid & ors.
SC No. 6681/2016 page no. 7 of 70 Head Constable Rajesh and the driver/Ct. Jai Prakash as the above Government vehicle no. DL1CH5839 was driven by him. SI Rajbir had handed over the custody of accused persons alongwith seizure memos, Notices u/s 50 of NDPS Act to ASI Mahender Singh (PW7). IO/ASI Mahender Singh prepared site plan at the instance of SI Rajbir Singh which is Ex. PW7/A. Accused Mohd. Sahid and Aamir Khan were arrested vide arrest memos (Ex. PW6/G and Ex. PW6/K) and their personal search memos were prepared vide memo (Ex. PW6/H and Ex. PW6/L). He also recorded disclosure statements (Ex. PW6/J and Ex. PW6/M) respectively.
8. SI Rajbir Singh (PW8) prepared the information u/s 57 of NDPS Act (Ex. PW4/C) regarding seizure of narcotic from both accused persons and forwarded it to ACP through Inspector Kuldeep Singh (PW
5). ASI Mahender Singh (PW7) also prepared the information u/s 57 of NDPS Act (Ex. PW4/D) regarding arrest of both accused persons and forwarded it to ACP through Inspector Kuldeep Singh (PW5). The information reports u/s 57 of NPDS Act (Ex. PW4/C and Ex. PW4/D) were received in the office of ACP on 09.06.2011 vide entry no 1087 and 1088 (Ex. PW4/E) in the Diary Register.
9. The case property, samples, FSL form with copy of seizure memo, which ASI Mahender Singh (PW7) had taken from the spot were State vs Mohd. Sahid & ors.
SC No. 6681/2016 page no. 8 of 70 deposited by him in the malkhana vide entry no. 1084 and 1085 in register no. 19. On 21.06.2011, sample parcels with FSL form were sent to FSL, Rohini through Ct. Ani Varghese (Ex. PW2/C). As per report of FSL (Ex. PW7/E) dated 05.08.2011, Exhibits A & D were found containing Diacetylmorphine. And Exhibits A and D were found containing Diacetylmorphine. After completion of investigation, charge sheet was filed in the Court.
10. Arguments on charge were heard and on 07.03.2012, both accused were charged for the offence punishable u/s 21 (c) of NDPS Act on the allegation that on 09.06.2011 at about 12:00 noon at the gate of I. P Park, near Sarai Kale Khan bus stop, Delhi, both accused were found to be in possession of 2.200 kg and 2 kg respectively of smack/Heroin without any permit or licence and in contravention of the provisions of Section 8 (c) of NDPS Act.
11. In order to prove its case, Prosecution examined following witnesses:
11.1 WHC Rojalia (PW1) was the Duty Officer at PS Crime Branch, Nehru Place on 09.06.2011. She deposed that at about 04:10pm, Ct. Kheta Ram had brought a rukka, on the basis of which she recorded FIR No. 156/11 vide Ex. PW1/A. PW1 also made endorsement State vs Mohd. Sahid & ors.
SC No. 6681/2016 page no. 9 of 70 on the rukka Ex. PW1/B. She deposed that he had also made DD entry no. 12 (Ex. PW1/C) regarding registration of FIR.
11.2 HC Jag Narayan (PW2) was posted as MHC (M) in PS Crime Branch, Nehru Place. He deposed that on 09.06.2011, on directions of SHO, he received six sealed pullandas marked A, B, C, D, and E sealed with the seal of '2BPSNB DELHI' 'ARM' alongwith two FSL Forms and two carbon copies of seizure memos. PW2 had made entry at slo no. 1084 in register no. 19 which is Ex. PW2/A. 11.2.1 PW2 further deposed that on the same day, ASI Mahender Singh deposited the personal search articles of accused Mohd. Sahid containing carbon copy of Notice u/s 50 of NDPS Act; Rs. 940/ in cash and one railway ticket from Bhopal to Nizamuddin. ASI Mahender Singh had also deposited the personal search articles of accused Aamir Khan containing one black colour leather purse containing Rs. 370/ in cash, some visiting cards, carbon copy of Notice u/s 50 of NDPS Act; one election I card, one railway ticket from Bhopal to Nizamuddin. PW2 had made entry at sl. no. 1085 in register no. 19. Photocopy of entry in register no19 is Ex. PW2/B. 11.2.2 PW2 deposed that on 21.06.2011, on the direction of IO/Inspector C. R. Meena, he handed over two sealed pullandas mark A State vs Mohd. Sahid & ors.
SC No. 6681/2016 page no. 10 of 70 and D to Ct. Ani Varghese for depositing in the FSL, Rohini vide RC no.
281/21, photocopy of which is Ex. PW2/C. During his custody, the pullandas remained intact and safe. He had made entry in register no. 19 at point X in this regard. After depositing pullandas in FSL, Rohini, Ct. Ani Varghese handed over acknowledgement of depositing the pullandas in FSL, Rohini. The acknowledgement is Ex. PW2/D. 11.2.3 PW2 further deposed that on 18.08.2011, he had received two sealed envelopes/result of FSL with the seal of STY FSL, Delhi through HC Rajesh and he made entry in register no. 19 at point X1. 11.3 Ct. Ani Varghese (PW3) deposed that on 21.06.2011 Sh. C. R. Meena, SHO/Inspector, Crime Branch took two sealed sample parcles marked A and D which were sealed with the seals of 2B PSNB Delhi and CRM and the same were in intact condition to FSL alongwith two FSL forms and some other documents. The above FSL forms were also bearing the same seals and parcles and documents were taken by him vide RC No. 281/21/11 issued by Jag Narain MHC(M). PW3 deposed that after depositing the same, he returned back to the Police Station and handed over the acknowledgement of case. So long as the case property had remained in his custody, the same had remained safe State vs Mohd. Sahid & ors.
SC No. 6681/2016 page no. 11 of 70 and intact and not tampered with by anybody. 11.4 Sh. Bir Singh, ACP (PW4) deposed that on 09.06.2011, at
about 9.50/9.55 AM, he had received a telephonic call from Inspector Kuldeep Singh informing him that two persons named Mohd Shahid and Aamir Khan, one of whom is a resident of Madhya Pradesh and the other is a resident of Rajasthan and who both are indulged in the dealings of narcotic drugs, would come today by train at Nizamuddin Railway Station and they both will supply heroin to some other person on the patri/footpath outside the Indraprastha Park. PW4 had directed Inspector Kuldeep Singh to take further action on the above information and to conduct a raid.
11.4.1 On the same day, PW4 had also received one DD No. 13 regarding the above information and the above information/DD was put up before him by his Reader and was seen and endorsed by him. PW4 placed on record the above information which is Ex. PW4/A and identified his signatures and handwriting at point B. The above information was entered in the diary register of his office at serial no. 1055 which is Ex. PW4/B. State vs Mohd. Sahid & ors.
SC No. 6681/2016 page no. 12 of 70 11.4.2 PW4 further deposed that on 10.06.2011, he had received
two other reports U/s 57 of the NDPS Act of this case and one of these reports was regarding the seizure of heroin weighing 4.200 kg and the other report was regarding the arrest of above two persons. The first report about seizure by sent by SI Rajbir Singh and the second report was sent by ASI Mahender Singh of Narcotic Cell and both these reports were duly forwarded by Inspector Kuldeep Singh. The above reports were also put up before him by his Reader. These reports were entered in our diary register at serial no. 1087 and 1088 dated 10.06.2011 which are Ex. PW4/C and PW4/D respectively. A copy of the relevant entry's no. 1087 and 1088 is also being placed on record and the same is Ex. PW4/E. 11.5 Inspector Kuldeep Singh (PW5) deposed that on 09.06.2011 at about 9.45 AM, SI Rajbir Singh with one informer came to his office and informed him that two persons namely Shahid and Aamir, who are involved in supply of heroin in Delhi, and would be coming by train at Hazrat Nizamuddin Railway Station and they would deliver huge quantity of heroin to someone in front of IP Park, Near Sarai Kale Khan, ISBT between 11.30 AM to 12.30 PM. After his satisfaction, he conveyed the above information to ACP Sh. Bir Singh, who ordered for conducting State vs Mohd. Sahid & ors.
SC No. 6681/2016 page no. 13 of 70 the raid. SI Rajbir Singh lodged DD No. 13 regarding the said information. Copy of which Ex. PW4/A. Thereafter, a raiding team was organized by SI Rajbir Singh consisting of himself, HC Parvinder, Ct. Sandeep, Ct. Kheta Ram and Ct. Jai Prakash and they alongwith the informer left from the office at about 10.20 AM.
11.5.1 PW5 further deposed that the investigation of this case later on was entrusted to ASI Mahender Singh, who had left from the office to the spot. At about 10.50 PM, ASI Mahender Singh returned to the PS to the office of Narcotic Cell with accused persons namely Shahid and Aamir. Thereafter, on 09.06.2011 itself, SI Rajbir Singh had produced before him a written special report U/s 57 of the NDPS Act regarding seizure of 4.200 kg of heroin. The report was also forwarded to the office of ACP for his perusal. The said report is already Ex. PW4/C. On 10.06.2011, ASI Mahender Singh had also produced a report U/s 57 of the NDPS Act regarding arrest of both the accused persons which was also forwarded by him to the office of ACP and the report is Ex. PW4/D. 11.6 HC Parminder (PW6) is the is one of the member of raiding team headed by SI Rajbir Singh . He has deposed about the apprehension of the both accused, recovery of 'Heroin' from the possession of accused Mohd. Sahid and Aamir Khan and proceedings State vs Mohd. Sahid & ors.
SC No. 6681/2016 page no. 14 of 70 conducted by SI Rajbir Singh at the spot. PW2 placed on record Notices u/s 50 of NDPS Act (Ex. PW6/A and Ex. PW6/C), their reply (Ex. PW2/B and Ex. PW2/D) of both accused on the Notice. He deposed that SI Rajbir Singh took all the six pullandas and FSL forms into possession vide seizure memos Ex. PW6/E and Ex. PW6/F, arrest memos Ex. PW6/G (of accused Mohd. Sahid) and Ex. PW6/K (of accused Aamir Khan), personal search memos Ex. PW6/H and Ex. PW6/L, disclosure statement of both accused (Ex. PW6/J and Ex. PW6/M). 11.7 ASI Mahender Singh (PW7) is the Investigating Officer. He has proved DD no. 30 (Ex. PW7/D); site plan (Ex. PW7/A); arrest memos of accused Mohd. Sahid and Aamir Khan (Ex. PW6/G and Ex. PW6/K) and their personal search memos (Ex. PW6/H and Ex. PW6/L) and disclosure statement of accused (Ex.PW6/J and Ex. PW6/M). 11.7.1 PW7 further deposed that on the same day, at about 09:00pm, he received copy of FIR and rukka (Ex. PW7/B) from Ct. Khetaram at PS Nehru Place. PW7 had deposited the personal search articles in the malkhana. Thereafter, they left PS Nehru Place at about 10:10pm for Narcotic Cell, Shakarpur and reached there at about 10:50pm. PW7 had made entry no. 34 Ex. PW7/C State vs Mohd. Sahid & ors.
SC No. 6681/2016 page no. 15 of 70 11.7.2 PW7 further deposed that he prepared a report u/s 57 of
NDPS Act Ex. PW4/D and handed over to Inspector Kuldeep Singh. 11.7.3 On 21.06.2011, on his directions, Ct. Ani Vergese had received samples and Form FSL from MHC (M) and deposited at FSL, Rohini and after depositing the same, he handed over the acknowledgement of the deposit of sample pullandas Ex. PW2/D. 11.7.4 On 05.08.2011, he collected the FSL result Ex. PW7/E. He had recorded the statement of witnesses.
11.8 SI Rajveer Singh (PW8) is the seizing officer. He has deposed about the recovery of Heroin ; weighment of Heroin; taking of sample; preparing of FSL form and preparation of rukka. He deposed that the rukka (Ex. PW7/B) was sent through Ct. Kheta Ram for registration of the FIR and after that the investigation was assigned to ASI Mahender Singh, who arrived at the spot, and he handed over to him the custody of accused Mohd. Sahid and Aamir Khan and documents. He also apprised him about the sequence of recovery of 'Heroin'. He deposed that ASI Mahender Singh prepared the site plan (Ex. PW7/A) at his instance. PW7 also prepared a report u/s 57 of State vs Mohd. Sahid & ors.
SC No. 6681/2016 page no. 16 of 70 NDPS Act and handed over the same to Inspector Kuldeep Singh Ex. PW4/C. 11.9 Inspector C. R. Meena (PW9) has deposed that on 09.06.2011, he was posted as SHO, PS Crime Branch and on that day at about 04:15pm, Ct. Kheta Ram handed over six sealed cloth parcels bearing marks A, B, C, D, E and F sealed with the seals of '2BPS NB DELHI', FSL Forms having the same seal and copies of seizure memo 'Heroin'. He put his counter seal of CRM on all the pullandas and FSL forms, which were already sealed with the seal of '2BPS NB DELHI'. PW10 deposed that he called HC Jag Narain, MHC(M) with register no. 19 in his office and handover sealed pullandas and documents to him. He also made a DD entry No. 19 Ex. PW2/A in daily diary register with regard to the deposit of case property, sample parcels and other documents with MHC (M).
11.9.1 PW9 also deposed that on 21.06.2011, MHC (M) had sent four sample parcels at FSL, Rohini with FSL forms through Ct. Ani Varghese vide RC No. 281/21.
11.10 Ct. Kheta Ram (PW10) is one of the member of raiding team headed by SI Rajveer Singh. He has deposed about the apprehension of both the accused, recovery of 'Heroin' from the State vs Mohd. Sahid & ors.
SC No. 6681/2016 page no. 17 of 70 possession of accused persons and proceedings conducted by SI Rajveer Singh and ASI Mahender Singh at the spot. PW10 had taken the rukka alongwith six sealed parcels sealed with the seal of '2 BPS NB DELHI', FSL forms and carbon copies of seizure memo to the PS Crime Branch with direction to hand over the parcels and document to Inspector C. R. Meena, SHO and rukka to Duty officer. Inspector C. R. Meena, SHO had affixed his seal of CRM on the parcels and FSL forms. SHO had taken the FIR NO. 156/2011 from the Duty Officer and wrote the FIR number on the parcels and all the document. SHO had called MHC(M) alongwith register no. 19 and handed over all the parcels and documents to him for depositing the same in the malkhana. PW10 deposed that he had freed the official vehicle and the vehicle had gone to Narcotic Cell, Shakarpur and the number of vehicle and he remained present in the Police Station to help the SHO in deposit of the case property.
12. All the incriminating evidence as stated in the statement of Prosecution Witnesses was put to both accused persons separately. When examined under Section 313 Cr. PC accused Mohd. Sahid stated that he was falsely implicated in the present case by the officials State vs Mohd. Sahid & ors.
SC No. 6681/2016 page no. 18 of 70 of Delhi Police. He was apprehended in the morning hours of 09.06.2011 when he had gone to Hazrat Nizamuddin to pay obeisance alongwith his family members. Nothing incriminating was recovered from him. His disclosure is not voluntary. The documents are manipulated and fabricated. His signatures were obtained forcibly on many blank papers as well as written papers whose contents were not explained to him.
13. Accused Aamir Khan also stated that he was falsely implicated in this case by the officials of Delhi police. Nothing incriminating was recovered from him and he was lifted by the police officials from near the Nizamuddin Dargah instead of the place mentioned by the police in their false story. His disclosure was also not voluntary. It was taken by the police officials forcibly and the contents of the notices were not explained to him.
14. Accused Mohd. Sahid preferred lead evidence in his defence and Sh. Mohd. Salam appeared as DW1 in the witness box and Sh. Sameer Khan also appeared and again examined as DW1. Their statements will be discussed during the later part of judgment.
15. I have heard arguments advanced by Sh. F. M. Ansari Ld. Addl. PP for the State and Sh. Jitender Sethi Learned counsel for State vs Mohd. Sahid & ors.
SC No. 6681/2016 page no. 19 of 70 accused Aamir Khan @ Naharu as well as Sh. Sumit Sharma Learned counsel for accused Mohd. Sahid and have perused the evidence, written submissions filed by Learned counsels for both accused and judgments too as well as the head notes prepared by Learned Addl. PP in rebuttal to the submissions and in support of the prosecution case. Let the matter be discussed by its head wise as assigned. Noncompliance of Section 42 & 50 of NDPS Act
16. Learned counsel for accused Mohd. Shahid submits that prosecution has not strictly complied with provisions of Section 50 and Section 42 of NDPS Act whereas, Learned counsel for accused Aamir Khan has argued that Section 42 of the NDPS Act enshrines that the information prior received by the Investigating Officer must be reduced into writing and sent to the superior officer. In the present case, it is admitted that no information, which was received, was recorded on a separate piece of paper and what has been proved on record is the DD entry no. 13 dated 09.06.2011. Besides this, Section 50 of NDPS Act is also mandatory requirement to be followed, which have also not been followed. It is admitted case of prosecution that the Notices u/s 50 of NDPS Act were given both accused, as such, the requirement of Section State vs Mohd. Sahid & ors.
SC No. 6681/2016 page no. 20 of 70 has to be followed as per the latest pronouncement in Gurjant Singh vs State of Punjab, which has been followed by in case of Rajesh Kumar @ Sanjay vs State of NCT Delhi 2014 (3) JCC (Narcotics) by the Hon'ble High Court.
17. It is argued by Learned counsel for accused Mohd. Shahid that the police officers knew and had the opportunity to take the accused persons to nearest Gazetted Officer or Magistrate (as per PW8, Investigating Officer of the case) . The police officials choose not to bring the accused persons to nearest Gazetted Officer or Magistrate. This itself indicates the noncompliance of Section 50 of NDPS Act is there. SI Rajbir Singh (PW8) Investigating Officer himself says that "the nearest Magistrate was available at the Patiala House Courts and the nearest Gazetted Officer i.e. ACP was available at the PHQ, Delhi Police, ITO. But both the accused were neither taken to the Patiala House Courts nor PHQ, Delhi Police". Whereas, HC Parmender (PW6) stated that "I cannot tell as to who was the nearest Gazetted Officer or a Magistrate from the spot". Ct. Kheta Ram (PW10) deposed that "I am not aware to where a Gazetted Officer or nearest Magistrate can be found near to the spot. Investigating Officer had disclosed about the list and definition of Gazetted Officer to the accused persons." State vs Mohd. Sahid & ors.
SC No. 6681/2016 page no. 21 of 70
18. It is neither the case of the prosecution nor supported by any witness that a list and definition of Gazetted Officer was disclosed to the accused persons. Moreover, as per the case of the prosecution, the recovery of the contraband is from the bag of the accused persons and after knowing the same the Notices u/s 50 of NDPS Act were given, though denied. So the compliance of Section 50 of NDPS Act is very much essential. Furthermore, if both the Notices are examined closely, it can be easily concluded that both the notices as well as their reply are same in verbatim (other than the name and address), as if someone was asked to copy the same from somewhere. This being the position, it cannot be believed that the provisions of Section 50 of NDPS Act were followed by the prosecution and the entire story of the prosecution sinks with this.
19. Learned defence counsel has relied upon VijaySinh chandubha Jadeja & State of Gujarat AIR 2011 SC 77; NCB vs Sukhdev Raj Sodhi AIR 2011 SC 1939 and State of Rajasthan vs Parmanand & anr. AIR 2014 SC 1384.
20. The reply given by accused persons to the Notices u/s 50 of NDPS Act Ex. PW6/A and Ex. PW6/C are verbatim and same be State vs Mohd. Sahid & ors.
SC No. 6681/2016 page no. 22 of 70 admitted by Ct. Kheta Ram (PW6) and SI Rajbir Singh (PW8).
21. It is further argued that in any case, the law which has developed now to this effect that if the accused persons are apprehended within the vicinity where they could be taken before a Gazetted Officer or a Magistrate, despite their refusal, the Investigating Officer shall make all endeavours to take them to the nearest Gazetted Officer or a Magistrate so as to comply with the mandatory provisions of Section 50 of NDPS Act. It is needless to say that the alleged spot from where the accused persons were stated to have been arrested was in a very short distance from the Police Head Quarter, Vikas Marg, Delhi and was also near to the Patiala House Courts where lot of Magistrates and Judges are sitting. The deliberate attempt on the part of the Investigating Officer is not take the accused persons to the said places and particularly when no public witness has been associated in the present case, therefore, casts a serious doubt on the veracity of the prosecution case.
22. On the contrary, Learned Addl. PP drawn the attention to the deposition of SI Rajbir Singh (PW8), who deposed that on 09.06.2011 at about 09:30am, one secret informer came to him and informed him that the two persons namely Aamir Khan and Mohd. Sahid, State vs Mohd. Sahid & ors.
SC No. 6681/2016 page no. 23 of 70 who used to supply Heroin in Delhi in huge quantity, would come to H. N. Din Railway Station by train between 11:00 am to 02:30pm and they would hand over the Heroin to some persons near the gate of the Inderprastha Park and they could be apprehended, if raided. He produced the secret informer before Inspector Kuldeep Singh, Narcotic Cell at about 09:45am. He also made some inquiries from the secret informer and after being satisfied, he informed to Sh. Bir Singh, ACP, Narcotic Cell about the information by telephone, who directed to conduct further proceedings. Thereafter, Inspector Kuldeep Singh directed him to form a raiding party and to conduct the raid. He recorded the information vide DD no. 13A and copy of the same was handed over to Inspector Kuldeep Singh u/s 42 of NDPS Act. The copy of the said DD is Ex. PW4/A. Thereafter, PW_8 formed a raiding party consisting of himself, HC Parminder Singh, Ct. Kheta Ram, Ct. Jai Prakash and Ct. Sandeep. He took his IO bag, field testing kit and electronic weighing scale with him. Thereafter, all members of the raiding party left their office for the spot in two government cars i.e. one bearing registration number DL1CF5839 which was driven by Ct. Jai Prakash and on the other hand car bearing registration number DL7CL1342, which was driven by Ct. Sandeep. They left their office at about 10:20am vide DD State vs Mohd. Sahid & ors.
SC No. 6681/2016 page no. 24 of 70 no. 14. They proceeded towards the spot via Pushta Road, Vikas Marg, ITO and turned towards left side Ring Road and took U turn after Nizamuddin Flyover and reached at the gate of I. P. Park at about 11:00am. On the way at near Ramesh Park bus stop on Pushta Road, they asked four public persons to join the police proceedings, after apprising them about the above secret information but none agreed and they all left the place without disclosing their names and addresses on one or other genuine grounds. At the bus stop after Nizamuddin flyover, they again asked five public persons to join the police proceedings, after disclosing the secret information to them, but none again agreed and they all left the place without disclosing their names and addresses on one or other genuine grounds. They parked their both vehicles 5060 meters ahead of the I P. Park on the service road towards the ITO and the drivers of both the vehicles were directed by him to remain present in the vehicles and bring the vehicles. Thereafter, he (PW8) alongwith Ct. Kheta Ram and secret informer took position on the south side of the I. P. park gate and HC Parminder Singh took position on the North side of the said gate and started waiting for the suspected persons. At about 11:55am, two persons were seen coming from the side of Nizamuddin Railway Station and having bags on their shoulders. The secret informer State vs Mohd. Sahid & ors.
SC No. 6681/2016 page no. 25 of 70 pointed out towards a person who was wearing a cream colour shirt and black colour pant and identified him as Mohd. Sahid. The secret informer pointed out towards the other person who was wearing white colour shirt and blue jeans and identified as Aamir Khan, thereafter, secret informer left the spot. The above persons came near the gate of I. P. park and started waiting there for someone for about 45 minutes and when at about 12:00 noon they were to move away from there, they apprehended both the persons and they disclosed their identifies to the said persons. SI Rajbir Singh (PW8) also disclosed the secret information to them and asked their names and addresses and the person who was wearing cream colour shirt and black colour pant disclosed his name as Mohd. Sahid and the person who was wearing white colour shirt and blue jeans as Aamir Khan. SI Rajbir Singh (PW8) told the accused persons that they have come to Delhi for the supply of Heroin as per the secret information received by him and their search is required to be conducted with regard to the information. He informed them that they have legal rights to be searched before a Gazetted Officer or a Magistrate and they have also legal rights to take the search of the members of the raiding party and their vehicles before giving their search, but both the accused refused to be searched before the officers State vs Mohd. Sahid & ors.
SC No. 6681/2016 page no. 26 of 70 and also refused to take the search of the members of the raiding party and also the vehicles. SI Rajbir Singh (PW8) prepared and gave Notice u/s 50 of NDPS Act Ex. PW6/A in this regard to the accused Mohd. Sahid and the accused gave his written reply/refusal in Hindi language vide Ex. PW6/B. SI Rajbir Singh (PW8)also prepared another Notice u/s 50 of NDPS Act Ex. PW6/C in this regard to the accused Aamir Khan and the accused gave his written reply/refusal in Hindi language vide Ex. PW6/D. Some public persons gathered at the spot. He asked 56 public persons from them to join the police proceedings, but none again agreed and they all left the spot without disclosing their names and addresses on one or other genuine grounds.
Thereafter, SI Rajbir Singh (PW8) checked the bag of accused Mohd. Sahid, which was of Moongia colour (greenish) having three chains and there were also two strips (taniya) with which the bag was found hanging on the left side shoulder of the accused. The bag was also having one other strip which could have been used for holding the bag in hands. On checking the bag was found to contain one transparent polythene of white colour tied with a rubber hand and containing some powdery substance of matiala colour (earth like colour). A small quantity of the powdery substance was tested with the help of a field testing kit State vs Mohd. Sahid & ors.
SC No. 6681/2016 page no. 27 of 70 and it gave positive result for Heroin. The weight of Heroin was taken on an electronic weighing scale alongwith the transparent polythene and it came to be 2.200kg. He had taken out two samples of 5 grams each from the recovered heroin and these were kept in separate polythenes and then converted into cloth parcels and given marking as A and D. the remaining Heroin in the same polythene was put back in the same bag and then a cloth pullanda thereof was also prepared and given marking C. Form FSL was also filled by him and all the above three parcels were sealed with the seals of 2 BPS NB Delhi and the same seal was also affixed on the FSL form. He had taken into possession the three sealed parcels and FSL form vide seizure memo Ex. PW6/E thereon and seal after use was handed over to HC Parminder Singh. Thereafter, he had taken the bag hanging on the shoulders of the other accused Aamir Khan. He had taken out two samples of five grams each from the recovered Heroin and these were kept in separate polythene and then converted into cloth parcels and given marking D and E. The remaining Heroin in the same polythene was put back in the same bag and then a cloth pullanda thereof was also prepared and given marking as F. Form FSL was also filled by him and all the above three parcels were sealed with the seals of 2 BPS NB Delhi which he had taken back from HC State vs Mohd. Sahid & ors.
SC No. 6681/2016 page no. 28 of 70 Parminder Singh and the same seal was also affixed on the FSL form. He had taken into possession the above three sealed parcels and FSL form vide seizure memo Ex. PW6/F.
23. The Statement of SI Rajbir Singh (PW8) has been corroborated with the statement of HC Parminder Singh (PW6) and Ct. Kheta Ram (PW10)on the apprehension of accused persons, recovery, search, seizure etc.
24. HC Parminder Singh (PW6) deposed in his examinationin chief that separate written Notices u/s 50 of NDPS Act were given to the accused persons which are Ex. PW6/A and Ex. PW6/C and after going through the Notices, they have refused for their search before the Gazetted Officers or Magistrate or to take the search of the police party and police vehicles and they had written the same in Hindi and their reply is Ex. PW6/B and Ex. PW6/D. Similar is the statement of Ct. Kheta Ram (PW10) was corroborated on the material point.
25. In response to the submissions made by Learned counsels for accused persons Ld. Addl .PP has stated that both the accused have refused to exercise their legal rights and they had also written their refusal with the respective Notices u/s 50 of NDPS Act. State vs Mohd. Sahid & ors.
SC No. 6681/2016 page no. 29 of 70
26. Ct. Kheta Ram (PW10) in crossexamination on behalf of accused Aamir Khan testified that after apprehension of accused, SI Rajbir Singh (PW8) issued Notice u/s 50 of NDPS Act. IO/SI Rajbir Singh has explained the meaning of Gazetted Officer, while serving Notice u/s 50 of NDPS Act, to the accused persons. Accused persons have written their reply while sitting in front of the gate.
27. SI Rajbir Singh (PW8) stated in his crossexamination that first of all, he prepared Notice u/s 50 of NDPS Act at the spot and served to the accused Mohd. Shahid and the second document was Notice u/s 50 of NDPS Act was served to accused Aamir Khan. HC Parminder (PW6) in crossexamination on behalf of accused persons, with respect to the Notices u/s 50 of NDPS Act, categorically deposed that separate written Notices u/s 50 of NDPS Act were served upon the accused persons, which are bearing their signatures as well as signatures of accused persons and the accused persons themselves have given their reply on the said Notices u/s 50 of NDPS Act.
28. So far as the contention raised by Learned counsels for accused persons with regard to noncompliance of Section 42 of NDPS Act, prosecution witnesses i.e. SI Rajbir Singh (PW8) in his State vs Mohd. Sahid & ors.
SC No. 6681/2016 page no. 30 of 70 examinationinchief as well as crossexamination has testified that the information received from secret informer was being forwarded to the Senior Officers by Inspector Kuldeep Singh of Narcotic Cell at around 09:45am and secret informer was also produced before Inspector Kuldeep Singh. The said secret information was also transmitted to Sh. Bir Singh, ACP of Narcotic Cell vide Ex. PW13/A and the copy of the same is Ex. PW4/A. This fact has also been corroborated by other prosecution witnesses.
29. The main arguments of Learned defence counsels are that prosecution had not complied with the provisions of Section 42 and 50 of NDPS Act and the information received from the secret informer was not transmitted to the Senior officers. The information given by the secret informer is seems to be doubtful, resulted which the information has not been communicated by any authentic mode to the immediate superior officer to the IO/SI Rajbir Singh. In order to comply with the provisions of Section 41 (1) of NDPS Act or u/s 41 (2) of NDPS Act. Therefore, there is violation of Section 42 (1) of NDPS Act.
30. Section 41 of the NDPS Act deals with the powers to issue a warrant and authorization for search of any building or conveyance etc for recovery of such contraband substances. Under subsection (1) of State vs Mohd. Sahid & ors.
SC No. 6681/2016 page no. 31 of 70 Section 41 of the above said Act, a Magistrate of a given class has been empowered to issue a warrant for the arrest of any person whom he has reason to believe to have committed any offence under the Act or a warrant for the search of any building, conveyance or a place etc, whether by day or by night, in which he has reason to believe that any narcotic drug or psychotropic substance etc, in respect of which an offence punishable under the above Act has been committed, or any document or article etc., which may furnish evidence of the commission of such offence, is kept or concealed. Under subsection (2) of Section 41 of the said Act, a Gazetted Officer of some given departments, as may be empowered in this behalf by a general or special order issued by the State or Central Government, has been empowered to issue an authorization for arrest of such a person or the search of such a building or conveyance etc if he has reason to believe, from his personal knowledge or information given by any person and taken down in writing, that any person has committed such an offence or any such narcotic drug or psychotropic substance etc is lying concealed in such a building or conveyance etc and as per this subsection the above authorization has to be made to any officer subordinate to him, but superior in rank to a peon, sepoy or constable etc. In terms of subsection (3) of the above State vs Mohd. Sahid & ors.
SC No. 6681/2016 page no. 32 of 70 Section, the officer who issues such warrant or authorization and the officer to whom the same is issued shall both have all the powers of an officer acting U/S 42 of the said Act.
31. Section 42 of the NDPS Act deals with the powers of entry, search, seizure and arrest etc without a warrant or authorization and subsection (1) thereof provides that if an empowered officer of a given rank, i.e. above the rank of peon, sepoy or constable etc, of the departments as stated above, has reason to believe from his personal knowledge or information given by any person and taken down in writing, that any such narcotic drug or psychotropic substance etc is being transported or concealed in any building or conveyance etc then he can enter into and search such building, conveyance or place etc and seize such drug or substance and he can also detain, search and also arrest, if he thinks proper, any person whom he has reason to believe to have committed an offence punishable under the Act. However, the above power of search, seizure and arrest can be exercised by him before sunset and after sunrise only and for effecting the search or seizure etc between the sunset and sunrise, a search warrant or authorization, as mentioned in Section 41 of the NDPS Act, is required by him in his favour. However, if such officer has reasons to believe that a search State vs Mohd. Sahid & ors.
SC No. 6681/2016 page no. 33 of 70 warrant or authorization cannot be obtained without affording an opportunity for the concealment of evidence or facility for the escape of an offender then in such an urgency he can even effect such search, seizure and arrest etc between sunset and sunrise, provided that he record the grounds of his above belief for doing the same. As per sub section (2) of Section 42 NDPS Act, a copy of the above information or the grounds of belief taken down in writing by such an officer has to be sent by him to his immediate superior official within 72 hours. Under both the above Sections 41 and 42 of the NDPS Act, if the source of the information is not the personal knowledge of the person receiving it, then the same is required to be reduced into writing.
32. It is settled position of law that compliance of provision of Section 42 of NDPS Act is mandatory. In the case of "Kishan Chand vs State of Haryana 2013 (I) AD (SC) 39", Hon'ble Supreme Court has categorically observed that provisions like Section 42 and 50 of the Act are the provisions which require exact and definite compliance as opposed to the principle of substantial compliance. Once there is total noncompliance and these provisions being mandatory in nature, the Prosecution case must fail.
SC No. 6681/2016 page no. 34 of 70
33. It is clear from the above section 41 and 42 of the NDPS Act that if the source of information is not the personal knowledge of the persons receiving it then the same is required to be reduced into writing. Section 41 (2) of NDPS Act speaks about a Gazetted officer of the department mentioned therein who receives the information. Section 42 (1) of NDPS Act is applicable when the information is received by an empowered officer other that a Gazetted Officer as mentioned in section 41 (2) of NDPS Act. The requirement of a search authorization by an empowered officer who receives an information under section 42(1) of NDPS Act would arise only when search is to be conducted after Sunset and before Sunrise and that too in any building, conveyance or place. First of all it is to be noted that SI Rajbir Singh (PW8) had reduced the information into writing by noting down vide DD No. 31A and copy of the same was handed over to Inspector Kuldeep Singh, which is in due compliance with the provisions of Section 42 (1) of NDPS Act. The said information was transmitted to Sh. Bir Singh, ACP, Narcotic Cell by telephonically, who directed for further proceedings, which is a due compliance with the provisions of Section 42 (1) of NDPS Act. Since the accused have been apprehended in an open place during the day time State vs Mohd. Sahid & ors.
SC No. 6681/2016 page no. 35 of 70 between Sunrise and Sunset, there was no mandatory requirement of any authorization from a Gazetted officer. So there is no deficiency in the compliance of section 42 (1) of NDPS Act.
34. The information received from the secret informer, apprehension of accused persons as well as recovery of the contraband substance has been communicated by SI Rajbir Singh to Inspector Kuldeep Singh and Sh. Bir Singh, ACP as well as to the senior officers. Section 42 (1) of NDPS Act is on the fact that the officer receiving the information should convey it to his superior officer. The word 'immediate' therein would only convey that the superior officer who is in the closest proximity of the officer receiving the information should be conveyed about the information. Moreover, the prosecution case cannot be thrown out only on this ground that the information was not conveyed to immediate officer superior of the empowered officer.
35. So far as the compliance of Section 50 of NDPS Act is concerned, it is revealed that accused persons were apprehended having the bag which are of moongia (green) colour found hanging on their shoulders. On checking, the bag was found containing transparent polythene of white colour containing some powdery substance of matiala colour and was tested with the help of Field Testing Kit and gave positive State vs Mohd. Sahid & ors.
SC No. 6681/2016 page no. 36 of 70 test for "Heroin". From the bag of accused Mohd. Sahid, it was weight of 2.200kg. Another bag on the shoulder of accused Aamir Khan containing transparent polythene of white colour tied with rubber band containing some substance of light brown (matiala) colour, and was tested with the help of Field Testing Kit and gave positive test for "Heroin". From the bag of accused Mohd. Sahid, it was come to 2kg. Accused persons were apprehended at 12 noon between the sunset and sunrise. Notice u/s 50 of NDPS Act was duly served and reply has been given by the accused persons and stated they do not want to be searched before Gazetted Officer or Magistrate.
36. Though, the recovery is not from the person of accused persons but the contraband substance has been recovered from their bags which they were carrying on their shoulders and the search was conducted subsequent to the service of notice under Section 50 of NDPS Act. In the case of Jernail Singh vs. State of Punjab AIR 2011 SC 964, it was observed;
"13...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 State vs Mohd. Sahid & ors.
SC No. 6681/2016 page no. 37 of 70 provisions of Section 50 would not be attracted. This court in the case of Kalema Tumba vs. State of Maharastra : (1999) 8 SCC 257 discussed the provisions pertaining to 'personal search' under Section 50 of the NDPS Act and held as follows ; ...if a person is carrying a bag or some other article with him and narcotic drug or psychotropic substance is found from it, it cannot be said that it was found from his person."
37. The Hon'ble Supreme Court has taken this consistent view and had earlier observed in the case of State of H.P. vs. Pawan Kumar (2005) 4 SCC 350 and also in Megh Singh vs. State of Punjab (2003) 8 SCC 666 that a bare reading of Section 50 shows that it applies in case of personal search of a person. It does not extend to a search of a vehicle or container or a bag or premises. The learned counsel for the accused laid emphasis on the case of Gurjant Singh vs State of Punjab (Supra) and other judgments.
38. The recovery has been effected from the bags carried by the accused persons, the Notice u/s 50 of NDPS Act have been duly served upon both the accused whereby they were informed about their legal right of search before a Gazetted Officer or a Magistrate. Therefore, there is a due compliance with the provisions in Section 50 of State vs Mohd. Sahid & ors.
SC No. 6681/2016 page no. 38 of 70 NDPS Act.
39. Notice u/s 50 of NDPS Act Ex. PW6/A was served upon accused Mohd. Sahid and after going through the Notice, he has written his refusal in Hindi vide Ex. PW6/B. Another Notice u/s 50 of NDPS Act Ex. PW6/C was also served upon accused Aamir Khan and after going through the Notice, he has written his refusal in Hindi vide Ex. PW6/D. Both the Notices u/s 50 of NDPS Act bears the signatures of SI Rajbir Singh (PW8) at points C. At the time of serving of Notices, 56 persons were asked to join the investigation but none agreed and left the place without disclosing their names and addresses.
40. Reply on the Notices u/s 50 of NDPS Act are stated to be verbatim but it was in the different handwritten and under the signatures of individual accused. It may be possible that the accused persons have asked from each other as to in what manner the reply has to be given. As such after due consultation and communication to each other, they affirm to give the same reply, as is same verbatim given on the Notice u/s 50 of NDPS Act will not violate of any legal rights of the accused persons.
41. Once a person is told about his legal right of search before a Gazetted Officer or a Magistrate, the option would rest with the said State vs Mohd. Sahid & ors.
SC No. 6681/2016 page no. 39 of 70 person to opt for his search before a Gazetted Officer or a Magistrate or get himself searched by the officer serving him with a notice. The question is what could be a mode of a service of notice upon the accused/suspect. Section 50 of NDPS Act provides that if a suspect so requires then he has to be taken to the nearest Gazetted Officer or Magistrate for search without any unnecessary delay. The question would arise about the mode of communicating to the suspect about his legal right of having his search before a Gazetted Officer or a Magistrate. The Hon'ble Supreme Court in the case of Krishna Kanwar vs. State of Rajasthan (2004) 2 SCC 608, has held that there is no specific form prescribed or initiated for conveying the information required to be given under Section 50 of NDPS Act.
42. Under the facts and circumstances of the case, Notices u/s 50 of NDPS Act in very categorical terms conveys to the accused that it was their legal right to conduct the search of the police party before their search is conducted and they can also have their search before a Gazetted officer or a Magistrate and the presence of Gazetted Officer or a Magistrate can be made available and they be searched in the presence of Gazetted Officer or Magistrate. Not only this, they were also informed and given the option to conduct the search of private cars of State vs Mohd. Sahid & ors.
SC No. 6681/2016 page no. 40 of 70 the police officials before their search. Both the accused persons did not opt for the search of the police officials or their vehicles. From the language used in the reply and the notice, it can be inferred that the accused were apprised about their legal right of search before a Gazetted Officer or Magistrate, although it was a case of recovery of contraband from the bags carried by the accused. Still, there is a due compliance of section 50 of NDPS Act.
43. Accused Mohd. Sahid in his statement u/s 313 Cr. PC stated that he was apprehended in the morning hours of 09.06.2011 when he had gone to Hazrat Nizamudin to pay obeisance alongwith his family members. Nothing to this effect, as such, brought on record by him. Similar is the answer of accused Aamir Khan . He stated that he was lifted by the police official from near the Nizamuddin Dargah instead of the place mentioned by the police in their false story but there is no cogent evidence to this effect brought on record.
44. Accused persons never took the plea that they were not well conversant with the language of Notice or the language of the reply to the Notices. Hence, they were wellconversant to the Hindi or English language. Accused Mohd. Sahid is the resident of market no. 4, near Majid, Ramaganj Mandi, District Kota, Rajasthan and accused Aamir State vs Mohd. Sahid & ors.
SC No. 6681/2016 page no. 41 of 70 Khan is the resident of Mullaon ki Masjid, MohallaQazipura, PS Kotwali, District Sehore, Madhya Pradesh as such, assume that they were well conversant with the Hindi or English language. Though, they have denied that no Notices u/s 50 of NDPS Act was served to them nor their signatures on the aforesaid Notices were obtained.
45. Learned counsels for the accused persons have relied upon the judgments in State of Rajasthan vs. Permanand (Supra) and Vijay Sinh Chandubha Jadeja vs. State of Gurarat (Supra) to submit the argument that the police officials should have taken the accused before a Gazetted Officer or a Magistrate to comply with the provisions of Section 50 of NDPS Act. In this regard it will be pertinent to refer to the observation of the Hon'ble Supreme Court in the case of VijaySinh Chandubha Jadeja vs. State of Gurarat (Supra) which is Constitution Bench judgment and wherein it was observed that "we also feel that though Section 50 of NDPS Act gives an option to the empowering officer to take such person (Suspect) either before the nearest Gazetted Officer or the Magistrate but in order to impart authenticity, transparency and creditworthiness to the entire proceedings, in the first instance, an endeavour should be made to produce the suspect before the nearest Magistrate. The law on the point of compliance of Section 50 of NDPS State vs Mohd. Sahid & ors.
SC No. 6681/2016 page no. 42 of 70 Act has been well settled in the case of Vijay Sinh Chandubha Jadeja vs. State of Gurarat (supra). With regard to the observation made in this judgment, the Hon'ble Delhi High Court in the case of Lekan Akins vs. State (NCT of Delhi) Crl. Appeal 483/2014 date of decision 12.12.2014, has held that the law laid down by the Hon'ble Supreme Court in the aforesaid decision are unambiguous about what is mandatory to be conveyed to the suspect in terms of requirement of Section 50 (1) of NDPS Act. With regard to the observation of the Hon'ble Supreme Court in VijaySinh Chandubha Jadeja's case (Supra) that an endeavour should be made to produce the suspect before the nearest Magistrate, the Hon'ble Delhi High Court has held that it was in nature of a obiter dictum.
46. Under the facts and circumstances, despite the fact that recovery has been effected from the bags carried by the accused persons, the notice under section 50 of NDPS Act has been duly served upon the accused persons whereby they were informed about their legal right of search before a Gazetted Officer or a Magistrate. Therefore, there is a due compliance with the provisions in Section 50 of NDPS Act.
47. The next contention raised by Learned counsels for accused persons is that investigation is unfair, biased and tainted State vs Mohd. Sahid & ors.
SC No. 6681/2016 page no. 43 of 70 with the following reasons: (i) No public witness was joined in the investigation; (ii) There are discrepancy in the statement of witnesses; (iii) Investigating Officer bag and Field Testing Kit was carried by the
Investigating Officer but the accused persons have no access and told to take the search of the same.
(iv) Sample parcel was sent after 1213 days to CFSL. Sample parcel of the case property was produced in the Court are different from what were seized by the Investigating Officer.
(v) As per the statement of HC Parminder (PW6) no entry register is maintained with regard to the entry or the exit from the police station and this practice is deprecated by Hon'ble High Court, which shows that how the investigation has been manipulated .
(vi) No call details or CDR was placed on record to how the location of HC Parminder (PW6) and ASI Mahender Singh (PW7) at the relevant point of time i.e. 11:00am till 10:pm at the spot.
(vii) No document has been placed on record to show that when the accused persons were lifted and taken to the police station during police custody remand on different occasions on different dates and they have been taken to the different places. There was no bill of any hotel for stay State vs Mohd. Sahid & ors.
SC No. 6681/2016 page no. 44 of 70 or any other document to claim reimbursement and other expenses.
(viii) Railway ticket has been recovered from the possession of the accused, however, the said railway tickets have not been proved on record. There is noncompliance of Section 52 and 55 of NDPS Act.
(ix) Statement of none of the witnesses who were alleged to be present at the spot, was recorded. No reason has been assigned in this regard.
(x) Present case suffers from serious illegality since SI Rajbir Singh himself is Investigating officer and allegedly made all seizure and sealing.
(xi) Arrest of the accused persons was shown at 07:45pm on 09.06.2011 vide arrest memos Ex. PW6/G and Ex. PW6/K in different ink and hand.
48. The criminal jurisprudence categorically lays down the cardinal principle to prove its case beyond reasonable doubts and if there are inconsistencies and noncompliance of the provisions of NDPS Act, the benefit of doubt may be given to accused. It is prayed that prosecution has been miserably failed to prove the charges against accused persons u/s 21 (c) of NDPS Act, therefore, the accused persons may be acquitted for the charges levelled against them. State vs Mohd. Sahid & ors.
SC No. 6681/2016 page no. 45 of 70
49. So far as the contention of Learned counsels for accused persons about the informing legal rights, search to be taken in compliance of Section 50 of NDPS Act. Sample parcels mark A and D sealed with the seals of 2BPS NB Delhi and CRM were intact condition when sent to FSL alongwith the FSL form and some other documents. The said sample parcels mark A and D were sent to FSL vide RC No. 281/21/11 through HC Jag Narain, MHC (M) (PW2) and the acknowledgement to this effect Ex. PW2/D.
50. HC Jag Narain (PW2) deposed that he received six sealed pullandas with the seal of 2BPS NB Delhi and CRM mark A to F. SHO/Inspector C. R. Meena handed over two FSL form sealed with the above seal alongwith two carbon copies of seizure memo of Heroin. ASI Mahender Singh also deposited the personal search articles of the accused persons while entry in register no. 19 at sl. no. 1085. Sh. Bir Singh, ACP (PW4) deposed that on receipt of DD no. 13, he has made endorsement at point A and forwarded to him by Inspector Kuldeep Singh under the signatures at point B vide Ex. PW4/A. The said information was entered into diary register of his office at sl no. 1055 dated 09.06.2011 vide Ex. PW4/B. On 10.06.2011, he had received two other reports u/s 57 of NDPS Act regarding the seizure of Heroin State vs Mohd. Sahid & ors.
SC No. 6681/2016 page no. 46 of 70 weighing 4.200 kg and other regarding the arrest of both accused persons. The first report about the seizure by SI Rajbir Singh and second report was sent by ASI Mahender Singh, Narcotic Cell. Both the reports were duly forwarded by Inspector Kuldeep Singh and same was endorsed by him at point A. The said reports were entered in daily register at sl. no.1087 and 1088 dated 10.06.2011 vide Ex. PW4/C and Ex. PW4/D respectively. Therefore, it cannot be said that prosecution has not complied with the necessary provisions u/s 41,55,57 of NDPS Act.
Nonjoining of public witnesses
51. Learned counsel for accused persons have argued that accused persons have been falsely implicated in this case. No public witness was joined as a witness at any time of proceedings, therefore, no implicit reliance can be placed on their statement. The learned counsel for the accused persons has referred to the judgment in the case of Gunesh Kumar vs. State, Crl. Appeal no. 1696/2014 decided on 18.07.2016, Rajesh Kumar @ Sanjay vs. State (NCT of Delhi), Crl. Appeal No. 263/2011 decided on 03.07.2014.
52. On the other hand learned Additional Public Prosecutor argued that it is common knowledge that the public witnesses are always State vs Mohd. Sahid & ors.
SC No. 6681/2016 page no. 47 of 70 scared to become a witness in a criminal case and it is very hard to find public witnesses these days. He has referred to judgment in case Union of India Vs Victor Namdi Okpo 2010 (4) JCC (Narcotics) 188 wherein their Lordships had held that the nonjoining of public witnesses by the prosecution is not fatal. Hence, the depositions of the police witnesses cannot be disbelieved merely for nonjoining of public witnesses.
53. The joining of public witness is advisable but it is not possible to engage public witness in the investigation all the time. In the case of Ajmer Singh Vs. State of Haryana (2010) 3 SCC 746, it was contended that the evidence of the official witness cannot be relied upon as their testimony had not been corroborated by any independent witness. The Hon'ble Supreme Court, rejecting the contention, held as under:
"19....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 State vs Mohd. Sahid & ors.
SC No. 6681/2016 page no. 48 of 70 find independent witness at all place, at all time. 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 office 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."
54. The arguments of the learned defence counsels that the statement of police officials cannot be believed because there was no public witness to provide independent corroboration, cannot be accepted. The recovery witnesses have corroborated each other on the point of apprehension of the accused and recovery of contraband substance from their possession which they were carrying in their bags. Inconsistencies in the statements of witnesses
55. The next contention raised by Learned counsels, while arguing the matter that prosecution witnesses cannot be believed for there are number of inconsistencies in their statements with regard to the proceedings conducted at the spot and other important aspects of State vs Mohd. Sahid & ors.
SC No. 6681/2016 page no. 49 of 70 the case.
56. It is also argued that raiding party left in two official vehicles. One bearing registration no. DL1CF5839 and while the other car was I10 Hyundai car and it was the Investigating officer who had arranged for the said cars, but he has not mentioned about the vehicle in any of the documents nor has claimed any reimbursement of the same. He has not disclosed this fact to the other members of raiding party. The log book of Government vehicle has not been seized by the Investigating Officer nor has been placed on record which reinforces the fact that they had not visited the spot at that time. In this regard, reference is made in Mohd. Irfan vs DRI, Criminal Appeal No. 783/2012.
57. No doubt, the witnesses were unable to cited the log book of the vehicles which they have used for conveyance purpose but it is to be noted that all the witnesses have been consistent deposition for the use of said vehicles to reach the spot and they have also described the vehicles used by them. I10 Hyundai and another car was government vehicle. Since these vehicles were used in apprehension of accused persons with contraband substance, citing of the log book will not be denied to the recovery of contraband substance. The statement of these recovery witnesses cannot be brushed aside simply on account of the State vs Mohd. Sahid & ors.
SC No. 6681/2016 page no. 50 of 70 fact that the police party had not brought the log book of the vehicles. The contradictions which the learned defence counsels have referred to are not maintainable. The prosecution witnesses have corroborated each other about the receiving of information; formation of a raiding team; arrival of the entire raiding team in the vehicles at the spot; about the time of arrival at the spot; about the time of arrival of the accused at the spot; about the carrying bags on the shoulders of accused persons; about the recovery of Heroin which was identified by the police officials on the basis of its smell from the bags carried by the accused persons. They all have been consistent in deposing apart from that a notice under section 50 of NDPS Act was served to the accused persons before conducting the search and further that accused persons have given reply to the notice themselves of their own, in the language at their choices. Therefore, so far as the question of recovery is concerned, there is no reason to disbelieve the statement of recovery witnesses. They have no motive to implicate the accused persons falsely. The accused have taken the plea that they have been apprehended from Dargah, Hazrat Nizamuddin and from Hazrat Nizamuddin railway station while going to Dargah at Hazrat Nizamuddin. It is proved through the recovery of their railway tickets, which was duly issued in their names that they came to State vs Mohd. Sahid & ors.
SC No. 6681/2016 page no. 51 of 70 Delhi for ulterior motive.
58. ASI Mahender Singh (PW7) deposed in his examination inchief that from the personal search of accused persons, the carbon copy of Notices u/s 50 of NDPS Act and the railway ticket in the name of accused persons were recovered.
59. It was the case of accused persons that they were apprehended from Hazarat Nizamuddin and they lead defence evidence by examining Mohd. Salam (DW1) who deposed that he alongwith accused Mohd. Sahid reached Hazrat Nizamudin Dargah, Delhi on 09.06.2011 at about 07:30/08:00am when they were buying "chaddar" for the dargah, 4/5 persons in civil dress came and asked them from where they had come. They told them about if they do now about any smuggler in Kota, Rajasthan. Then those 45 persons disclosed that they were police official and asked them to accompany them to the police station. They were taken to the police station for about45 hours. Thereafter, DW1 Mohd. Salam was released by the police officials after some inquiry but Mohd. Sahid was detained.
60. In crossexamination by Learned Addl. PP, DW1 Mohd. Salam stated that he alongwith Mohd. Sahid had come to Delhi in Jaipur Depot, Rajasthan. They had alighted at Dhaula Kuan at about 07:00am. State vs Mohd. Sahid & ors.
SC No. 6681/2016 page no. 52 of 70 There was no "urs" at Dargah Hzarat Nizamuddin. DW1 Sameer Khan stated in his examination that he did not remember the number of flat where he had come to attend the Umra function in the area of Jama Masjid.
61. If that was the case then it was for the accused to explain why they were at the Nizamuddin Dargah and from where they had come and where they had to go. It is unbelievable that the police officials would pick up two unknown persons from the railway station just to implicate them in some case of recovery of contraband substance. None of the accused has given any suggestion to any witness that they were known to any member of the raiding party prior to the date of their apprehension. There is no allegation of any enmity or prejudice against the witnesses. In such a situation it is hard to accept the argument of the defence counsels that the accused have been falsely implicated in the present case and that they have been picked up from Nizamuddin Dargah and thereafter implicated in the present case.
62. It could not be digested why DW1 Mohd. Salam was let out by the police officials since, DW1 Mohd. Salam has come alongwith other coaccused and DW1 Mohd. Salam found to be innocent after being detailed verbal interrogation. The vehicle used by members of the State vs Mohd. Sahid & ors.
SC No. 6681/2016 page no. 53 of 70 raiding party are one Maruti car 800 and the other one was Hyundai I10, as both the vehicles are used by the police officials. Though the fact has been mentioned in the rukka Ex. PW7/B and the location of the parking of vehicles also mentioned in the site plan Ex. PW7/A. ASI Mahender Singh (PW7) stated that in crossexamination that the fact regarding the vehicle is mentioned in police diary. SI Rajbir Singh (PW8) has admitted that log book of government vehicle was not mentioned. There is no application moved by defence to summon the driver and log book of the government vehicle nor any suggestion made to this effect. Hence, the contention of mentioning log book of the government vehicle and non production in the Court will not hamper the prosecution case. Though, police party arrived at the spot n the vehicles mentioned as well apprehended the accused persons alongwith contraband substance. FIR is not proved
63. The next contention raised by Learned counsels for accused persons are that FIR is not proved as per the law. Since, it was computerized FIR, it was a requirement to be present in order to compliance with Section 65B of Indian Evidence Act, but in the present case no such certificate has been submitted.
SC No. 6681/2016 page no. 54 of 70
64. W/HC Rojalia has proved FIR Ex. PW1/A. She also made endorsement on the rukka which is Ex. PW1/B. She also made DD entry no. 12 regarding registration of FIR, copy of which is Ex. PW1/C. In crossexamination, PW1 deposed that Ct. Kheta Ram had left Police Station alongwith copy of FIR and rukka vide DD no. 15 at about 05:05pm. W/HC Rojalia (PW1) is the Duty Officer at Police Station Crime Branch, Nehru Place, who has deposed that on receipt of rukka brought by Ct. Kheta Ram, sent by SI Rajbir Singh, she had registered FIR No. 156/2011 u/s 21/29 of NDPS Act through computer operator. Since, it is a computerized FIR, there was requirement of certificate u/s 65 B of Indian Evidence Act and in the present case, no certificate has been submitted. Learned counsel has relied upon the case Anwar P.V. vs. P.K. Basheer & Ors. Civil Appeal No. 4226/2012 decided on 18 th September 2014 wherein it was observed with regard to Section 65B of Indian Evidence Act that an electronic record by way of secondary evidence shall not be admitted in the evidence unless the requirements under section 65B of Indian Evidence Act are satisfied. Thus, in the case of CD, VCD, Chip etc. the same shall be accompanied by a certificate in terms of Section 65B of Evidence Act obtained at the time State vs Mohd. Sahid & ors.
SC No. 6681/2016 page no. 55 of 70 of taking the documents.
65. Considering the submission of the learned counsels on this issue, the electronic record is vulnerable to manipulation, therefore, its veracity and reliability is always cause of concern. Therefore, Section 65B of Evidence Act,1832 was incorporated and it was mandatory to submit a certificate under Section 65B of Indian Evidence Act for admissibility of electronic record as secondary evidence. In the case where the computer has been utilized only as a tool as a typewriter for converting the text from one form to other such as a letter, then software of the computer does not have much role to play and the only function the computer plays is that of a typewriter. For example in case of registration of FIR, the writer of the FIR on the computer types the contents of the FIR, take out a print of the said documents/FIR verifying the text which has been generated and authenticate the same by putting signature. The typing and taking out the print of the FIR simultaneously diminish the role of computer as a mechanical device nor the computer is used in such a situation for storage of any data which is reproduced later on. Typing of an FIR, taking out its print and signing of the text by the concerned person simultaneously is equivalent to typing a letter on a typewriter. Therefore, in such a case, in my considered view, there is no State vs Mohd. Sahid & ors.
SC No. 6681/2016 page no. 56 of 70 requirement of any certificate under section 65B of Indian Evidence Act with regard to an FIR which is a computerized print out. FIR has been signed by W/HC Rojalia(PW1), who identified her signatures on the same. Therefore, n these circumstances and discussion, the contention of Learned defence counsel does not hold any water. Delay in sending the samples
66. So far as they have assailed the case of the prosecution on the ground that there has been a considerable delay in sending the samples to the FSL and therefore there is a possibility of tampering with the samples because in between the time the seal and the samples have remained in the police station only. It was submitted that another important fact which indicate tampering of the samples is the difference in the weights of samples which have been noticed in the matter. it was submitted that there is a possibility of tampering with the samples when they were in the custody of police officials. The question is whether the delay in sending sample to FSL by itself would be a ground to believe that there has been a tampering with the samples. In the case of Hardip Singh vs. State of Punjab (2008) 8SCC 857, the Hon'ble Supreme Court while dealing with the question of delay in sending of sample of Opium had pointed that, "it was of no consequence for the State vs Mohd. Sahid & ors.
SC No. 6681/2016 page no. 57 of 70 fact that recovery of said sample from the possession of the appellant had been proved and established by cogent and reliable evidence and that apart it had come in evidence that till the date all parcels of sample were received by the chemical examiner, the seal put on that parcel was intact". A similar contention was also rejected in the case of Mohan Lal vs. Rajasthan (2015) 6 SCC 222. So, delay in sending the sample parcel to FSL, would not be fatal to prosecution if the link evidence rule out any tampering with the case property. It has come in the statement of ASI Mahender Singh (PW7) that he had prepared sample pullanda on which he had put the seal and same was also further sealed by the seal of Sh. Bir Singh, ACP and while reaching to the FSL alongwith FSL forms, handed over to Ct. Ani Varghese (PW3). The case property alongwith sample seal, FSL forms duly sealed and the samples were sent to the FSL in intact condition and reached there without any tampering. Therefore, there is no possibility of any tampering and the contention of Learned counsels, it is not substantial. Hence, the case property i.e. sealed parcels, FSL forms were having seals in intact condition and same has been deposited in the malkhana vide entry no. 1084 in register no. 19 and same was sent to FSL in intact condition without any tampering.
SC No. 6681/2016 page no. 58 of 70
67. Ct. Ani Varghese (PW3); Sh. Bir Singh, ACP and other police officials have categorically stated in their depositions and cross examination and their statements are intact without any discrepancies or inconsistencies. Thus, evidence led by the prosecution has established that the sample parcels and the case property alongwith sealed FSL form were remained intact with the seal, right from the time they have been seized till they have been received in the FSL. Therefore, delay in sending the case property to the FSL is not much of importance and even 1012 days delay is not in much significance. Though, Hon'ble Supreme Court and Hon'ble High Court in catena of judgements has condoned the delay for a month for sending the sample to the laboratory. FSL Report
68. The next contention raised by Learned defence counsels are that FSL report Ex. PW7/E has proved that the samples were received intact and on physical, microscopic, chemical and TCL examination, the samples A and D were found to be Diacetylmorphine respectively. Learned counsel for accused has submitted that this report has not been proved on record as no expert has been brought in the witness box. However, Learned Addl PP has submitted that it was not State vs Mohd. Sahid & ors.
SC No. 6681/2016 page no. 59 of 70 required to be proved by virtue of section 293 CrP.C. This report being prepared by Chemical Examiner was per se admissible in evidence. As per section 293 Cr.P.C. a report prepared by any Chemical Examiner or Assistant Chemical Examiner to the government may be used as evidence in inquiry, trial or other proceedings. However, such examiner can be called in the Court. In the present case the report has been prepared by Sh. Santosh Tripathy, Senior Scientific Officer (Chemistry), Forensic Science Laboratory cum ExOfficio Chemical Examiner to the Govt. of national Capital Territory of Delhi. The designation of Sh. Santosh Tripathy shows that he is an Ex. Officio Chemical Examiner to the Government. Therefore, report prepared by him is covered under section 293 Cr.P.C. Accordingly, the report is admissible in evidence. Although it was upon the accused to make a request for summoning of this official from FSL for the purpose of crossexamination, however, the accused have not preferred to call him for the purpose of examination. Defective Investigation
69. The next contention raised by Learned defence counsel is that the prosecution case is motivated and defective investigation and there a deliberate attempt to save the source. The investigating agencies do not proceed with the investigation with same zeal and enthusiasm State vs Mohd. Sahid & ors.
SC No. 6681/2016 page no. 60 of 70 once a recovery of contraband has been effected and the same thing has happened in the present case. The Investing officer appeared to have made half hearted attempt/efforts to apprehend the source, on receipt of contraband by the accused persons and to whom it was being supplied.
70. To this effect, it is evident that the disclosure statement of accused persons was recorded. Police has also tried to lay hands to source, who has supplied the Heroin to the accused persons and also accused was also being taken there to know the source to whom it was being supplied. But nothing incriminating was found. Obviously after so much time has passed from the date of apprehension of the accused persons when they had made their disclosure statements as the recipient of contraband, nothing could have been found by the Investigating Officer. Therefore, there is no fault of the Investigating Officer to conduct the investigation of this case in due diligence manner and all sincere efforts to proceed in the investigation qua the source. However, that cannot be a ground to disbelieve their statements on the point of recovery of contraband substance from the possession of the accused persons. Therefore, all sincere efforts were made to apprehend the source.
SC No. 6681/2016 page no. 61 of 70 Sampling Procedure by Defence
71. It is argued that the sample mark A and D were sent to FSL. The sample procedure adopted by Investigating Officer is is defective as it is not as per the Standard Instructions of NCB. Sample has to be taken from each packet separately. Therefore, a suspicion arises in the mind that one of the bag may not be having the same substance while given it a separate mark to each bag specifically once the substance taken from both the bags is mixed and sample gave positive test for contraband substance, then one can logically infer with certainty that at least one of the bag was having contraband but there may not be any certainty that both the bags were having contraband. What is the effect of this defective procedure of sampling by Investigating Officer? The accused have been put to trial for the offence under section 21 (c) of NDPS Act as the quantity of Diacetylmorphine recovered from each accused was stated to be "commercial quantity". As per the Notification specifying "small quantity" and "commercial quantity", a quantity of 5 grams of Heroin is "small quantity" and a quantity of 250 grams or more is a "commercial quantity". If the quantity of substance is more than small quantity but less than commercial quantity it would be an "intermediate quantity" for which there is a punishment which may State vs Mohd. Sahid & ors.
SC No. 6681/2016 page no. 62 of 70 extend upto 10 years with fine. In the present case, both accused were stated to be carrying bags each and the quantity of both the bags was more than 4.200 Kg.
72. In view of submissions of Learned defence counsel it is evident that the contraband seized from the accused persons are contraband substance as per the initial testing on the testing kit. Lateron, sample of 5 grams each were drawn and sent to the FSL alongwith remaining contraband substance alongwith sealed samples of FSL Form in intact condition and from the chemical examination report by FSL, exhibits A and D were proved to contain Diacetylmorphine 17.35% and 16.6 % respectively as Ex. PW7/E which is permissible u/s 293 Cr PC and if there was any inconsistency then they can summon the record but defence counsel did not opt to do so. Even otherwise the quantity as recovered has been weighed in presence of witnesses and the same has been corroborated and there is no material discrepancies found in the weight as carried on the spot and the weight at the time of examination sample in the FSL. The sample from both the recovered substance has been taken in equal quantity by giving them earmarked as A and D. Both the samples A and D having being examined separately by the Chemical Examiner in the FSL, which has been found to be positive results. State vs Mohd. Sahid & ors.
SC No. 6681/2016 page no. 63 of 70
73. Sections 35 and 54 of NDPS Act raise statutory presumption of conscious possession where the physical possession of contraband has been established. Section 35 of NDPS Act provides that Court shall presume the existence of culpable mental state in any transaction for an offence under this Act, although the accused can lead a defence to prove that he had no such mental state. Section 54 of NDPS Act, interalia, provides that the accused is presumed to have committed an offence under the Act in respect of any narcotic drug etc. if the accused fails to account satisfactorily for the possession thereof. In case Chand Singh vs. NCB (supra), it has been held that where physical possession of the contraband has been established then law raises statutory presumption of conscious possession. Once the prosecution has established physical possession of the contraband, then it would be for the accused to rebut the presumption of "conscious possession". It has been held in the case of Dharampal Singh vs. State of Punjab (2010) 9 SCC 608, that once possession is established the court can presume that accused had culpable mental state and have committed the offence. In the case of Madan Lal vs. State of H.P. (2003) 7 SCC 465 also it has been observed that once a possession is established, the person who claims that it was not the conscious State vs Mohd. Sahid & ors.
SC No. 6681/2016 page no. 64 of 70 possession has to establish it, because how he came to be in possession is within his special knowledge. In the present case not only the possession has been proved by the State, but the circumstances also establish that accused persons had knowledge of concealment of contraband substance in their bag which they confined. Conclusion
74. In view of aforesaid discussion and judgment cited, this Court has come to the conclusion that prosecution has proved its case against accused Mohd. Sahid and Aamir Khan @ Naharu for commission of an offence punishable u/s 21 (c) of the Act for possessing 'Heroin' in commercial quantity without any permission or licence and in contravention of Section 8 (c) of the Act. Accordingly, accused Mohd. Sahid and Aamir Khan @ Naharu are held guilty for the offence punishable u/s 21 (c) of the NDPS Act and convicted accordingly. Let they be heard on the point of sentence.
(announced in the (Dr. Satinder Kumar Gautam)
open Court on Special Judge (NDPS)
th
19 July 2017 ) South District: Saket
State vs Mohd. Sahid & ors.
SC No. 6681/2016 page no. 65 of 70
IN THE COURT OF DR. SATINDER KUMAR GAUTAM,
SPECIAL JUDGE;NDPS SOUTH DISTRICT, SAKET
SC No. 6681/2016
FIR No. 156/2011
u/s 21 (c) of NDPS Act
PS - Crime Branch
DLST010000452011
State
versus
Mohd. Sahid ..........accused no. 1
s/o Sh. Abdul Shakoor
r/o Bazar no. 4, near Masjid Ramganj
Mandi, District, Kota (Rajasthan)
Aamir Khan @ Naharu ..........accused no. 2
s/o Sh. Aziz Khan
r/o Mohalla Kasba Kajipura,
near Masjid, PS Kasba Kajipura
District Sihore (MP)
Date of Judgment : 19th July 2017
Date of order on sentence : 09th August 2017
ORDER ON SENTENCE
1.0 Accused Mohd. Sahid and Aamir Khan @ Naharu have
been held guilty and convicted for the offence punishable u/s 21 (c) of the NDPS Act for keeping possessing 'Heroin' in commercial quantity without any permission or licence and in contravention of Section 8 (c) of State vs Mohd. Sahid & ors.
SC No. 6681/2016 page no. 66 of 70 the Act. 2.0 I have heard the submissions on the point of sentence from learned Additional Public Prosecutor and Sh. Jitender Sethi Learned
counsel for convict Aamir Khan @ Naharu as well as Sh. Sumit Sharma Learned counsel for convict Mohd. Sahid.
3.0 I have taken into account all the mitigating and aggravating circumstances of the case.
4.0 Learned Addl. PP has submitted that the convicts have been found in possession of commercial quantity of contraband and imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees - provided that the Court may, for reasons to be recorded in the judgment impose a fine exceeding two lakh rupees. He submitted that considering the increase in the trafficking in the narcotics substance and its use, a strict view is required to be taken and severe punishment is called for in such cases.
5.0 Learned counsel for the convicts on the other hand have prayed for a lenient view on the ground that the convicts have no previous State vs Mohd. Sahid & ors.
SC No. 6681/2016 page no. 67 of 70 criminal record and the quantity recovered from their possession is
commercial quantity, which provides punishment not less than 10 years and fine. It is also submitted that convict has already undergone custody during the investigation of the case for more than nine months. His financial condition is very poor and the contraband was recovered two bags 10 kg ganja in each bag.
6.0 On behalf of convict Mohd. Sahid, it is submitted that a lenient view on the ground that convict has old age ailing mother and his father has expired during the trial. He has having two minor children and two marriageable sisters. Convict is being remained in Judicial Custody for a period of more than six years in this case, therefore, a prayer to be released the convict Mohd. Shahid on the period, for the minimum sentence.
6.1 Ld. Counsel for convict Mohd. Sahid has placed reliance upon Puran Singh vs State of Punjab CA No. 112SB of 2004, Date of decision 30.07.2017 and prayed for undergone.
7.0 On behalf of convict Aamir Khan @ Naharu it is submitted that he is in custody for last about more than six years and has already suffered the agony of trial for the last six years. The wife of the convict State vs Mohd. Sahid & ors.
SC No. 6681/2016 page no. 68 of 70 Aamir Khan is suffering from partial paralysis of her lower limbs and is even unable to walk properly and needs an attendant for performance of her daily activities. He is the sole bread earner of his family and his presence is needed to take care of his ailing wife. 8.0 Keeping in view of the submissions and the judgment cited by Ld. Counsel for convict Mohd. Sahid, the present case is entirely on different footing. Submissions made by Ld. Counsel is declined. 9.0 In view of the facts and circumstances of the case the convict is sentenced as under :
a) The convict Mohd. Sahid is sentenced to 10 years of rigorous imprisonment and further sentenced to pay a fine of Rs. 1 Lac, in default to undergo SI for six months for the offence u/s 21 (c) of the NDPS Act. Benefits of Section 428 Cr.P.C. shall be extended to the convict.
(b) The convict Aamir Khan @ Naharu is sentenced to 10 years of rigorous imprisonment and further sentenced to pay a fine of Rs. 1 Lac, in default to undergo SI for six months for the offence u/s 21 (c) of the NDPS Act. Benefits of Section 428 Cr.P.C. shall be extended to the convict.
10. Case property be confiscated to State and disposed of as per law, after the expiry of the period of limitation for filing of the appeal or State vs Mohd. Sahid & ors.
SC No. 6681/2016 page no. 69 of 70 subject to the outcome of the appeal to be filed against this judgment, if any, or the orders of the Appellate Court, as the case may be.
11. Copy of the judgment and order on sentence be supplied to the convict, free of cost as well as to Superintendent, Central Jail, Tihar for information and necessary compliance.
11. File be consigned to record room after all the necessary compliances.
(announced in the (Dr. Satinder Kumar Gautam)
open Court on Special Judge (NDPS)
09 August 2017 )
th
South District: Saket
State vs Mohd. Sahid & ors.
SC No. 6681/2016 page no. 70 of 70