Delhi District Court
State vs Ghulam Rabani on 11 March, 2024
IN THE COURT OF SUDHIR KUMAR SIROHI:ASJ
(SPECIAL JUDGE) (NDPS ACT): NEW DELHI DISTRICT:
PATIALA HOUSE COURTS:NEW DELHI
STATE VS. GHULAM
RABBANI & ANR.
FIR NO. 423/16
PS IGI AIRPORT
Session Case No. : 155/17
Date of Institution : 20.05.2017
Date of Judgment reserved on : 20.12.2023
Date of Judgment : 11.03.2024
Brief details of the case
(A) CNR No. : DLND01-007003-2017
(B) Offence complained of : 21/29 of NDPS Act & 14
or proved Foreigners Act
(C) Date of Offence : 04.11.2016
(D) Name of the IO/ : SI Manoj Kumar/
complainant Dr. Kamal Kataria
(E) Name of the accused : 1) Ghulam Rabbani
s/o Sh. Ghulam Jilani,
r/o Street No. 7, Zainul
Abdeen 7, 12M Road, Area
Pule Rangine, Herat
Afghanistan
2) Quadir Ahmad
s/o Sh. Sh. Ghulam
Sorowar
r/o Darwaja Kandhar,
Herat, Afghanistan
(F) Plea of the accused : Pleaded not guilty
(G) Final order : Accused Ghulam Rabbani
acquitted and accused
Quadir Ahmad convicted.
(H) Date of Judgment : 11.03.2024
SC No. 155/17
FIR No. 423/16
PS IGI Airport
State Vs. Ghulam Rabbani and Anr.
Page No. 1 of 44
JUDGMENT
Brief facts mentioned in the complaint
1. Brief facts of the case are that on 03.11.2016 information was received from AIIMS Hospital regarding admission of accused Ghulam Rabbani who got unconscious at IGI airport and was admitted to AIIMS. Accused Ghulam Rabbani was carrying 57 capsules inside him (53 capsules in stomach and 4 in rectum). After surgery the capsules were removed and were found containing 314 grams of heroin. The disclosure statement of accused Ghulam Rabbani was recorded and accused Ghulam submitted that on 17.10.2016 he came to India, meet Saiyed Aulim and Quadir Ahmad at Bhogal Jangpura about 15 capsules came out from his stomach through anus and same were handed over to accused Saied Aulim and co accused Quadir Ahmad but no further capsules came out from his stomach then became ill therefore it was decided to send him back to Afghanistan and on 03.11.2016 he alongwith one Afghani national namely Gul Khan was trying to go back to Afghanistan but became unwell at IGI Airport and got admitted in AIIMS, thereafter on disclosure of accused Quadir Ahmad was apprehended, he was found without valid visa but accused Saiyed Aulim could not be found and after completion of investigation, chargesheet was filed. FSL report was found positive for diacetylmorphin.
2. On appearance of the accused copies of documents were supplied to accused persons. Charge for committing offence punishable under Sections 21 (c) NDPS Act was framed against accused Ghulam Rabbani and charge punishable u/s 14 SC No. 155/17 FIR No. 423/16 PS IGI Airport State Vs. Ghulam Rabbani and Anr.
Page No. 2 of 44Foreigners Act was framed against accused Quadir Ahmad by Ld. Predecessor vide order dated 22.07.2017 and accused was not charged u/s 29 NDPS Act, to which accused persons pleaded not guilty and claimed trial.
3. To prove its case the prosecution has examined 28 witnesses. Prosecution witnesses correctly identified the accused in the court.
Prosecution Evidence:-
For brevity, only evidence of important witnesses reiterated.
4. PW-1: Sh. M.L. Meena deposed that on 08.11.2016, one sealed cloth parcel duly sealed with one seal of 1.G.1 A.20 and one seal of IGI A.1 received in the FSL laboratory and same was marked to him for chemical examination. The seal on the parcels were found intact and tallied with specimen seal impression forwarded. He opened the sealed cloth parcel mark S-1. Ex S-1 off-white coloured brittle lumps of assorted size & shapes, kept in a small plastic container, weight 5.0 gms (approx.) without plastic container. This case was examined by him on chemical TLC, GC and GC-MS examination. After thoroughly examination it was concluded that Ex S-1 was found to contain 'Diacetylmorphine', '6-Monoacetylmorphine', 'Acetylcodeine', 'Caffeine' & 'Dextromethorphan'. Ex S-1 also found to contain 'Diacetylmorphine' 53.5%. After the examination the remnants of the exhibits was sealed with the seal of MLM FSL DELHI and returned to the forwarding authority.
SC No. 155/17 FIR No. 423/16PS IGI Airport State Vs. Ghulam Rabbani and Anr.
Page No. 3 of 445. PW-6 Sh Rajinder Kumar deposed that on 10.05.2017, he was working as Airport Manager at Kam Airlines, Terminal-3, IGI Airport, New Delhi. On that day, he received a notice u/s 91 Cr.P.C from IO SI Manoj Kumar. In reply to said notice, he submitted certified copy of passenger flight manifest (Ex PW6/A collectively). Certified copy of boarding pass issued in the name of Alimi/Ghulam Rabbani (Ex PW6/B). He also submitted certified copy of Air ticket of Alimi/Ghulam Rabbani (Ex PW6/C Collectively). He had submitted all the above said documents after mentioning the description of the same on the letter head (Ex PW6/D) of their company.
6. PW-9: Sh. Prahlad Kumar Sahni deposed that he has been authorized by Assistant Director, Central Foreigners Bureau, Intelligence Bureau, Ministry of Home Affairs, Govt of India, New Delhi to appear on his behalf. The said authority letter (Ex PW9/A). PW9 had brought the travel details and visa details of Ghulam Rabbani and Quadir Ahmed. As per their record, Alimi Ghulam Rabbani came from Afghanistan vide flight no. 4Q 243 from Kabul to Delhi on 17.10.2016. As per their record, accused Quadir Ahmed also came from Afghanistan vide flight no. SG 022 from Kabul to Delhi on 06.10.2015 (Ex PW9/B). PW9 had also brought the Certificate u/s 65B in respect of computer generated record (Ex PW9/C).
7. PW-10: Dr. Kamal Kataria deposed that on 03.11.2016, one patient namely Ghulam Rabbani resident of Islamic Republic of Afghanistan was admitted at Emergency of AIIMS hospital in unconscious state as he was shifted from IGI Airport. On SC No. 155/17 FIR No. 423/16 PS IGI Airport State Vs. Ghulam Rabbani and Anr.
Page No. 4 of 44evaluation under Medicine Unit I, it was found that he has swallowed lot of large drugs capsules for purpose of smuggling. The reason for his unconscious state was due to accidental rupture of some capsules. On 05.11.2016, PW10 was consulted to operate urgently and to remove drug capsules. He conducted the surgery and during surgery, he recovered 57 drug capsules. The weight of all these capsules were 525 grams alongwith outer polythene which was used for packing the capsules. He submitted the recovered capsules to IO/SHO, IGI Airport along one complaint (ExPW10/A) for investigation and capsules were seized (ExPW10/B). On 03.05.2017, on the request of IO, PW10 submitted one photograph (Ex PW10/C) of accused Ghulam Rabbani showing his surgery. PW10 has correctly identified the accused and case property. During evidence of PW10, MHC(M) produced three transparent jars i.e. A, B and C duly sealed with the seal of IGI20 and IGI1. Jars were also wrapped with doctors tape. Jar 'A' was opened up and from it contents of the recovered capsules were taken out. PW10 correctly identified the same as recovered during surgery of accused Ghulam Rabbani (Ex PW10/P-1). The transparent Jars 'B' and 'C' opened up and the contents of the same were identified by PW10 which were handed over by him to the IO after surgery of accused (Ex PW10/P-2 and Ex PW10/P-3).
8. PW-15 Sh. Surender Kumar deposed that on 15.12.2016, Police officer from IGI Airport along with accused Quadir Ahmed came at the house of mother of PW15 as he was living as tenant there. In his presence, police seized passport of the SC No. 155/17 FIR No. 423/16 PS IGI Airport State Vs. Ghulam Rabbani and Anr.
Page No. 5 of 44accused Quadir which was produced by the accused after taking out from the almirah kept in the tenanted room. The mobile number of the accused was 8860220050 as they were generally talking with each other. IO seized the passport vide pointing out cum seizure memo (Ex PW15/A) and the said passport is Ex PW15/B.
9. PW-17 H.C.Kirpal Singh deposed that on 03.11.2016, he was posted at PS Hauz Khas and his duty was at AIIMS hospital as Duty Officer. On that day, at about 08.45 p.m one CATS Ambulance brought one Afghani National in the hospital in unconscious condition. The person namely Mr. Sinil who accompanied with him had told PW17 the name of that Afghani National was Ghulam Rabbani. He also told that said person had become unconscious at T-3 IGI Airport as he had taken some unknown substance. The MLC of Ghulam Rabbani was also prepared at the hospital. Mr. Sinil handed over belongings/ articles of Ghulam Rabbani to PW17 i.e. one original passport issued in the name of Gul Khan, one original passport issued in the name of Ghulam Rabbani, one black colour Nokia phone without SIM and cash Rs. 4270/-. PW17 informed Duty Officer of IGI Airport vide DD no. 44B regarding the admission of Ghulam Rabbani in the hospital. The accused was declared unfit for statement by the doctor. On 04.11.2016 PW17 handed over above said articles including cash to IO SI Manoj Kumar who seized the same vide seizure memo Ex PW17/A.
10. PW-18 Insp. Satish Malik deposed that on 05.11.2016, he was posted as SHO PS IGI Airport. On that day at about 12.00 SC No. 155/17 FIR No. 423/16 PS IGI Airport State Vs. Ghulam Rabbani and Anr.
Page No. 6 of 44noon, he was on patrolling duty and the duty officer informed PW18 telephonically that a person namely Ghulam Rabbani admitted in AIIMS hospital, the doctor has informed that he has concealed drugs in his stomach and he has to be operated upon. Duty officer also conveyed this message to SI Manoj Kumar. Thereafter PW18 departed to AIIMS hospital and reached at floor no. 8, AIIMS at about 12.40 p.m. where PW18 met SI Manoj Kumar and Dr. Kamal Kataria. Dr. Kamal Kataria handed over 57 capsules to SI Manoj Kumar which were stated to be taken out during operation of stomach and rectum of Ghulam Rabbani. After giving necessary instructions to SI Manoj Kumar, PW18 departed from there for police station (PS) vide DD no. 13A at 03.30p.m. PW18 lodged his arrival entry in the roznamcha of PS (Ex PW18/A). At about 07.40p.m, Ct Mahesh came to PS and handed over the rukka, copy of seizure memo, FSL Form and five exhibits to PW18 which were duly sealed with the seal of IGIA-20. Thereafter Ct. Mahesh was sent to duty officer with rukka for registration of FIR and PW18 called MHC(M) H.C. Maan Singh alongwith register no.19 and seal. PW18 also put his counter seal of IGIA-1 on the said five exhibits and FSL Form. PW18 also countersigned all the exhibits and FSL Form. PW18 also countersigned on the seizure memo. After confirming FIR number from Duty Officer, it was also put on the exhibits, FSL Form and seizure memo. PW18 handed over all the exhibits, FSL form and Seizure memo to MHC(M) and directed him to make the entry in register no. 19 according to seizure memo and PW18 also countersigned the entry in this regard. Compliance of SC No. 155/17 FIR No. 423/16 PS IGI Airport State Vs. Ghulam Rabbani and Anr.
Page No. 7 of 44Section 55 NDPS Act was also done vide DD no. 15A at 08.00 p.m. (Ex PW18/B). On 05.11.2016 SI Manoj Kumar put up before PW18, the information u/s 42 NDPS Act which PW18 forwarded to concerned ACP (Ex PW18/C). On 06.11.2016, SI Manoj Kumar put up before PW18, report u/s 57 NDPS Act in respect of seizure of exhibits and same was forwarded by PW18 to concerned ACP (Ex PW18/D). On 30.11.2016 SI Manoj Kumar put up report u/s 57 NDPS Act regarding arrest of accused Ghulam Rabbani and PW18 forwarded the same to concerned ACP (Ex PW18/E). On 16.12.2016 SI Manoj Kumar put up report u/s 57 NDPS Act regarding arrest of accused Quadir Ahmed and PW18 forwarded the same to concerned ACP (Ex PW18/F).
11. PW-19 ASI Maan Singh deposed that on 05.11.2016, he was working as MHC(M). On that day Insp. Satish Malik the then SHO PS IGI Airport deposited five exhibits Mark A, B, C, S-1 and S-2 which were duly sealed with the seal of IGIA-20 along with carbon copy of seizure memos and FSL form in the present case. SHO also put his counter seal on all the exhibits and FSL form. PW19 made entry (Ex PW19/A) to this effect in register no. 19 at serial no. 1471 which was also countersigned by the SHO. PW19 brought register no. 21 and the copy of Road Certificate no. 147/21/16 dated 08.11.2016 vide which sample was sent to FSL, Rohini (ExPW19/B).
12. PW-23 Ct. Ram Jatan deposed that on 30.11.2016, he was posted at PS IGI Airport and on that day, he was performing his duty at 6th Floor, Emergency, AIIMS SC No. 155/17 FIR No. 423/16 PS IGI Airport State Vs. Ghulam Rabbani and Anr.
Page No. 8 of 44Hospital to look after accused Ghulam Rabbani. SI Manoj Kumar along with Dr. Mohd. Mazrul Haq came in the hospital and the IO handed over a written request to the doctor for interrogation of accused Ghulam Rabbani, as Dr. Harsh had already discharged accused Ghulam Rabbani from the hospital. Discharge summary of accused Ghulam Rabbani was also handed over to the IO by the doctor and accused Ghulam Rabbani was declared fit for interrogation. IO SI Manoj interrogated accused Ghulam Rabbani in the presence of interpreter Dr. Mohd. Mazrul Haq. After interrogation, IO arrested Ghulam Rabbani in the present case vide arrest memo (Ex PW 23/A). IO also recorded his disclosure statement (already exhibited as Ex PW12/A). The disclosure statement of accused Ghulam Rabbani was also signed by Dr. Mohd. Mazrul Haq. After that, they along with the accused came to PS IGI Airport.
13. PW-24 ASI Jaibir Singh deposed that on 02.12.2016, report under section 57 NDPS Act (Ex PW24/A) regarding arrest of accused Ghulam Rabbani was received in the office, prepared by SI Manoj Kumar and forwarded by the then SHO. Same was put up before the ACP who seen it and the same was diaried in the diary register vide serial no. 6122 dated 2.12.2016. On 16.12.2016 another report u/s 57 NDPS Act regarding arrest of accused Quadir Ahmed was received in the office prepared by SI Manoj Kumar and forwarded by the then SHO. Same was put up before the ACP who seen it and the same was diaried in the diary register vide serial no. 6468 dated 16.12.2016 (Ex PW24/B).
SC No. 155/17 FIR No. 423/16PS IGI Airport State Vs. Ghulam Rabbani and Anr.
Page No. 9 of 44PW24 had also brought the diary register and copy of the said entries ExPW24/C and ExPW24/D.
14. PW-26 Ct. Radheshyam deposed that on 15.12.2016, he was posted at PS IGI Airport. On that day, he joined the investigation of the present case with SI Manoj Kumar and they both went to Jangpura Bhogal for the arrest of accused Quadir Ahmed and reached at Flat no. 3/61, 3 rd floor, Bhogal Jangpura Extension, New Delhi. At that time, said flat was found locked and after that they reached at Afghan Hind Telecom Services at Jangpura, Bhogal. IO made inquiries from accused Quadir Ahmad thereafter he was arrested in the present case (Ex PW26/A) and his personal search was conducted (Ex PW26/B). IO recorded his disclosure statement (Ex PW26/C). At that time IO also seized his mobile phone make Micromax of accused (Ex PW26/D). Thereafter he was taken to his flat and in the presence of owner of the said Flat, house search of said flat was conducted and from the almirah of his house his original passport was recovered, which was seized by the IO (already Ex PW15/A). After that accused was taken to police station. PW26 has correctly identified the mobile phone make Micromax and passport of accused Quadir Ahmed and accused in court. During evidence of PW26, one envelop containing passport of accused Quadir Ahmed already Ex PW15/B shown to PW26, on seeing the same, PW26 correctly identified the same which was recovered and seized from the almirah of house of accused Quadir Ahmed in his presence. During evidence of PW26, one yellow colour envelope produced from the record and having the SC No. 155/17 FIR No. 423/16 PS IGI Airport State Vs. Ghulam Rabbani and Anr.
Page No. 10 of 44particulars of case written on it. Same was opened up and from it one mobile phone make Microsoft with IMEI number 357158062934380 and 357158062934398, black and orange colour, were taken out and shown to PW26, on seeing the same, PW26 correctly identified which was seized in his presence from the accused Quadir Ahmed Ex PW26/P-1.
15. PW27 Ct Mahesh deposed that on 05.11.2016, he was posted at PS 1GI Airport. On that day, he joined the investigation of the present case with SI Manoj Kumar and Ct. Ramphal. On that day at about 12.00 pm, SI Manoj received a call vide DD No. 10-A from the Duty Officer. Thereafter, they reached at 8th Floor of AIIMS Hospital at about 1.30pm and at that time, accused Ghulam Rabbani was inside the operation theater. Dr. Kamal Kataria, who was present in the operation theater, handed over written complaint along with 57 drug capsules, allegedly recovered during operation of accused Ghulam Rabbani to IO SI Manoj. IO checked the substance of recovered capsules with the help of field testing kit and it was found to be heroin. All the recovered capsules were opened and from them, 314 grams heroin was recovered. IO took out two samples of 5 grams each and kept the same in two separate plastic jars and duly sealed with the seal of IGIA20 and the remaining heroin was also kept in a plastic container, which was duly sealed with the seal of IGIA20. IO also seized gloves, cotton and cotton gauze, which were used during opening the capsules and the same were kept in a plastic jar which was also duly sealed with the seal of IGIA20. Thereafter, IO filled up the FSL Form. At about 6.35 pm, IO SC No. 155/17 FIR No. 423/16 PS IGI Airport State Vs. Ghulam Rabbani and Anr.
Page No. 11 of 44handed over the original seizure memo, FSL Form, rukka along with exhibits Mark A, B, C, S, S1 and S2 to PW27 for the registration of the FIR. At about 7.40 pm, PW27 reached in the office of SHO, PS IGI Airport and PW27 produced all the exhibits along with original seizure memo before the SHO and rukka was handed over to Duty Officer for registration of the FIR. After registration of the FIR, PW27 received a copy of FIR along with original rukka from the Duty officer and original copy of seizure memo from SHO and reached at AIIMS hospital at about 10pm then handed over the same to IO. IO recorded the statement of Dr Kamal Kataria, Ct Ramphal and PW27. After that, they returned back to the PS.
16. PW-28 SI Manoj Kumar deposed that on 03.11.2016, he was posted at PS IGI Airport. On that day, at about 10.10 pm, he received DD No. 44-B (already Ex PW24/A) from Duty Officer. As per the said DD, that one person namely Ghulam Rabbani, son of Alimi, resident of Herat, Afghanistan, aged about 43 years was admitted in an unconscious condition after eating some unknown substance vide MLC No. 11993/16 at AIIMS Hospital. Thereafter, PW28 along with Constable Praveen reached at Emergency of AIIMS Hospital and there above Ghulam Rabbani was found in an unconscious condition and was under treatment. Doctor declared him unfit for statement on his MLC. Thereafter, the concerned treating doctor handed over Ghulam Rabbani's gastric lavage in a small glass bottle which was duly sealed with the seal of CMO AIIMS HOPT ND along with sample seal. The same was seized by PW28 vide seizure memo (already Ex. PW-
SC No. 155/17 FIR No. 423/16PS IGI Airport State Vs. Ghulam Rabbani and Anr.
Page No. 12 of 445/A). Duty Head Constable Kirpal of AIIMS Hospital also handed over the belongings of Ghulam Rabbani i.e. two passports, one was issued in the name of Ghulam Rabbani and the other was issued in the name of Gul Khan, one black colour mobile phone make Nokia 1100 and Rs. 4270/-. PW28 seized the same (already Ex. PW-17/A). PW28 also tried to contact the person who admitted Ghulam Rabbani in the hospital but despite his efforts, the said persons could not respond. On 04.11.2016, PW28 deposited the exhibits in the Malkhana. On 05.11.2016, he received DD No. 10-A (Ex PW28/A) at 12.00 noon. As per said DD, the patient namely Ghulam Rabbani who was admitted in the hospital on 03.11.2016 was being operated as he had swallowed some drugs capsule. PW28 also gave information (already Ex PW18/C) under Section 42 NDPS Act to the concerned ACP. Thereafter, PW28 along with Constable Mahesh and Constable Ramphal then left the PS along with seal of PW28 i.e. IGI 20, drug testing kit, electric weighing machine, personal laptop of PW28 and personal printer and reached AIIMS Hospital where the patient was being operated in operation theater at eighth floor. They reached there at about 1.15 pm. SHO/Inspector Satish Malik, the then SHO IGI Airport also reached there. At about 1.50 pm, doctor Kamal Kataria, Assistant Professor, Department of Surgical Discipline, AIIMS Hospital handed over PW28 a written complaint (Ex PW10/A) which was addressed to SHO IGI Airport along with retrieved capsules in double polythene. Inspector Satish Malik after giving necessary direction to PW28, left from the hospital. Thereafter, PW28 worn SC No. 155/17 FIR No. 423/16 PS IGI Airport State Vs. Ghulam Rabbani and Anr.
Page No. 13 of 44the hand gloves and cleaned the stomach liquid substance from the retrieved capsules. Thereafter, PW28 opened the total 57 capsules one by one and the powdery substance which was recovered from those capsules were kept in a plastic jar. The weight of the empty plastic jar was 55 grams. Thereafter, PW28 weighed the recovered powdery substance on electronic weighing machine and the total weight was found to be 369 grams. The weight of the recovered powdery substance was 314 grams. PW28 checked the recovered substance with the help of drug testing kit and found it to be heroin. The said jar along with recovered heroin was given Mark A. Thereafter, PW28 kept the double polythenes and packing material was kept in another plastic jar. The said jar was given Mark B. PW28 took out two samples of 5 grams each from the recovered heroin and the same were given Mark S-1 & S-2 and the same were kept in two different small plastic containers. The hand gloves which PW28 used along with cotton and gauze which were used during cleaning the capsules were kept in separate plastic jar and the same was given Mark C. Thereafter, all the plastic jars were wrapped with the help of doctor's tape and duly sealed with the seal of IGI 20. Then PW28 filled the FSL Form and also put same seal on it. Seal after use was handed over to Constable Ramphal and also prepared seal handing over memo (already Ex. PW-13/A). Thereafter, PW28 seized all the exhibits (already Ex. PW-10/B). Thereafter, PW28 prepared a rukka (Ex. PW-28/B) and the case was got registered under Section 21 of NDPS Act and the rukka was handed over to Constable Mahesh along with SC No. 155/17 FIR No. 423/16 PS IGI Airport State Vs. Ghulam Rabbani and Anr.
Page No. 14 of 44all the exhibits and the copy of seizure memo, FSL Form with the direction to handover the same property before the SHO and rukka be handed over to Duty Officer for the registration of the FIR. Constable Mahesh left the hospital at about 6.35 pm. Constable Mahesh returned back to the hospital at about 10.00 pm and handed over the copy of FIR along with rukka to PW28. PW28 again requested the concerned doctor to examine Ghulam Rabbani as at that time, he was in ICU but the doctor did not allow PW28. Thereafter, PW28 deputed Constable Ramphal to guard the accused Ghulam Rabbani. PW28 recorded the statement of Dr. Kamal Kataria under Section 161 Cr. PC and also recorded the statements of Duty Constable Suresh and Constable Ramphal. Thereafter, PW28 returned back to the PS along with Constable Mahesh. PW28 recorded the statement of Duty Officer ASI Sunita, SHO/Inspector Satish Malik, MHCM ASI Man Singh and Constable Mahesh. During preparation of seizure memos of exhibits, seal handing over memo, PW28 left the space for FIR number. PW28 after confirming from the Duty Officer, he mentioned the FIR number on both the prepared documents. On 06.11.2016, PW28 had sent compliance report (Ex PW28/C) under Section 57 NDPS Act regarding seizure of case property to the concerned ACP through proper channel. The seal which PW28 used in this case at the time of seizing the case property and was handed over to Constable Ramphal on the day of registration of the FIR and he deposited the same in the Malkhana on 06.11.2016. PW28 recorded his statement under Section 161 Cr. PC. On 07.11.2016, PW28 recorded the SC No. 155/17 FIR No. 423/16 PS IGI Airport State Vs. Ghulam Rabbani and Anr.
Page No. 15 of 44statement of Constable Praveen under Section 161 Cr. PC. On 08.11.2016, exhibits of this case were sent to FSL, Rohini through Constable Ramdhan and after depositing the case property, he handed over the copy of Road Certificate and acknowledgement. PW28 also recorded his statement under Section 161 Cr. PC as well as of HC Maan Singh, MHCM. On the same day, PW28 went to the CCTV Control Room at Terminal-III, IGI Airport and there he analyzed the CCTV footage of dated 03.11.2016 on which accused Ghulam Rabbani had boarded the flight to Kabul, Afghanistan and he was also seen in the CCTV footage at Terminal-III. On the same day, PW28 prepared a request letter addressing to DIG, CISF, Terminal-III, IGI Airport to provide CCTV footage of dated 03.11.2016 and the same was sent through Reader to SHO. On the same day, PW28 also prepared another letter for providing interpreter/translator of Afghan/Pashto language. Thereafter, request (Ex PW28/D) was made by the then DCP, IGI Airport to the DEAN of Jawahar Lal Nehru University, New Delhi. Thereafter, PW28 went to Jawahar Lal Nehru University to the office of the DEAN along with the said letter where he met DEAN Madam and she had appointed Dr. Mazrul Haque as interpreter. Thereafter, PW28 met Dr. Mazrul Haque and along with him, went to AIIMS Hospital and at that time, the doctor had also declared accused Ghulam Rabbani not fit for giving his statement. On 09.11.2016, suspect Quadir Ahmad came in the PS and PW28 interrogated him but at that time, he did not co- operate and did not provide proper information. On 10.11.2016, SC No. 155/17 FIR No. 423/16 PS IGI Airport State Vs. Ghulam Rabbani and Anr.
Page No. 16 of 44PW28 again visited AIIMS Hospital and at that time, doctor had also not declared Ghulam Rabbani fit for giving statement. On 14.11.2016, PW28 had sent Constable Sunil along with notice under Section 160 Cr. PC to the house of Ms. Bimla Tokas at Munirka. As the mobile phone bearing No. 9582403614 which was used by accused Ghulam Rabbani was registered in the name of Ms. Bimla Tokas. PW28 also came to know from Constable Sunil that he had served the notice to the son of Ms. Bimla Tokas as Bimla Tokas was not present at home, his son had told that she would join the investigation after 3-4 days. On 17.11.2016, PW28 went to the house of Ms. Bimla Tokas and she joined the investigation and PW28 also recorded her statement under Section 161 Cr. PC and during investigation, she told that she had neither taken the above said number nor she has used the same. On 18.11.2016, PW28 had called Shinil Kumar, ground handling staff of Celbee Company who admitted Ghulam Rabbani at AIIMS Hospital on 03.11.2016. PW28 recorded his statement under Section 161 Cr. PC. On 29.11.2016, PW28 received CCTV footage of dated 03.11.2016 which was provided by the CISF office of Terminal-III, IGI Airport. PW28 again analyzed the same and placed on record. On 30.11.2016, PW28 again went to JNU and from there PW28 along with Assistant Professor Dr. Mazrul Haque went to AIIMS Hospital and at that time, doctor had declared Ghulam Rabbani fit for his statement. PW28 interrogated him with the help of Dr. Mazrul Haque and PW28 recorded his disclosure statement (already Ex. PW-12/A). At that time, Constable Ram Jatan was already present there. Thereafter, SC No. 155/17 FIR No. 423/16 PS IGI Airport State Vs. Ghulam Rabbani and Anr.
Page No. 17 of 44accused Ghulam Rabbani was arrested vide arrest memo (already Ex. PW-23/A). PW28 also recorded the statement of Dr. Mazrul Haque and Constable Ram Jatan under Section 161 Cr. PC. After that, accused was brought to the PS and put behind the lockup and thereafter PW28 prepared report under Section 57 NDPS Act (Ex PW28/E) regarding the arrest of accused Ghulam Rabbani and the same was sent to the office of ACP through proper channel. On the same day, information of arrest of accused Ghulam Rabbani was also sent to Afghan Embassy at Chanakya Puri. On 01.12.2016, PW28 along with Constable Vinay and HC Swaroop went to Bhogal along with accused Ghulam Rabbani and at that time, he had identified the room where he was staying and at that time, the said room was found locked and after that, he led them to house No. 3/61, D/S, Bhogal, Jangpura and there he got identified the room of co-accused Quadir Ahmad, however, at that time, accused Quadir Ahmad was not present there. After that, he led us to house No. 3/57, D/S, Bhogal and identified the room of absconded co-accused Syed Aulim but at that time, some another person was found residing there. On 05.11.2016 PW28 prepared site plan (Ex PW28/F) of the place where accused was admitted in AIIMS hospital and he was operated upon. On 30.11.2016 PW28 moved an application (Ex PW28/G) to CMO, Emergency, AIIMS hospital for giving permission to interrogate the accused Ghulam Rabbani. On 10.12.2016 ACP concerned made a letter Ex PW28/X regarding arrest and verification of accused Ghulam Rabbani Ex PW28/H, information of arrest and verification of antecedents and SC No. 155/17 FIR No. 423/16 PS IGI Airport State Vs. Ghulam Rabbani and Anr.
Page No. 18 of 44nationality of accused Ghulam Rabbani Ex PW28/Y, information regarding arrest of accused Ex PW28/Z. On 15.12.2016 PW28 along with HC Swaroop and HC Radhey Shyam proceeded for further investigation and reached at H. No. 4/54, D/S, Bhogal, Jangpura. On reaching there, Santosh Kumari, landlady of H. No. 3/61, 3rd floor, D/S, Bhogal, Jangpura extension met them in whose house co accused Quadir Ahmad was residing. Santosh Kumari told them that Quadir Ahmad was residing in her house. PW28 had recorded her statement. After that PW28 reached at H. No. 3/61, 3rd Floor, D/S at the instance of son of accused Santosh Kumari. The room in which Quadir Ahmad was residing was found locked. After that they went to the shop of accused which was in the name of Afghan Hind Telecom services situated at 54, Masjid road, Bhogal. Accused Quadir Ahmed met them there. PW28 made interrogation from him. After interrogation, accused Quadir Ahmed was arrested (Ex PW26/A). Mobile phone make Microsoft which was used in the crime was recovered from the possession of accused Quadir Ahmed. PW28 checked the SIM and IMEI number of aforesaid mobile. PW28 took the same into possession (Ex PW26/D). PW28 recorded the disclosure statement of accused Quadir Ahmed (Ex PW26/C). Accused Quadir Ahmed took them to his room situated at Jangpura extension, accused took out a passport in the name of Quadir Ahmed from an iron almirah lying in the room (Ex PW15/B) and same was taken into possession (Ex PW15/A). PW28 had recorded the statement of Surender Kumar Son of landlady u/s 161 CrPC. Case property was deposited with MHC(M). On SC No. 155/17 FIR No. 423/16 PS IGI Airport State Vs. Ghulam Rabbani and Anr.
Page No. 19 of 4416.12.2016 PW28 prepared a report u/s 57 NDPS Act (Ex PW18/F). PW28 placed the same before SHO, PS IGI Airport duly forwarded the same through ACP concerned. On 16.12.2016 a letter Ex PW28/I was made by SHO regarding information of arrest of accused Quadir Ahmed and another letter to same effect Ex PW28/J, another letter Ex PW28/K to the same effect addressed to different authorities. On 23.12.2016 on request of PW28, a letter was sent by ACP concerned to Joint Secretary (Passport) regarding information of arrest of accused Quadir Ahmed and another letter to the same effect (Ex PW28/M) addressed to Joint Secretary (Foreigner). On 09.01.2017 a notice u/s 91 CrPC was served upon nodal officer, Vodafone Mobile Services Ltd for providing CAF and CDR. In pursuance of this letter, reply of Vodafone is Ex PW11/A, certificate u/s 65B Indian Evidence Act Ex PW11/D, CAF Ex PW11/B, CDR Ex PW11/C collectively, certificate u/s 65 B Indian Evidence Act Ex PW11/G, CAFs Ex PW11/E, CDR Ex PW11/F, certificate u/s 65 B Indian Evidence Act Ex PW11/J, CAF Ex PW11/H, CDR Ex PW11/I, location chart Ex PW11/K of different mobile numbers. On 13.02.2017 PW28 moved an application Ex PW28/N to the DIG, CISF, Terminal 3, IGI for providing CCTV footage dated 03.11.2016. In pursuance of application, PW28 received certificate u/s 65B Indian Evidence Act mark PW28/A and CD containing the CCTV footage mark PW28/B. PW28 collected the FSL result Ex PW1/A and Ex PW3/A from FSL. On 17.03.2017 PW28 had recorded the statement of Chand Begum U/s 161 CrPC. On 26.04.2017 PW28 visited AIIMS hospital and PW28 SC No. 155/17 FIR No. 423/16 PS IGI Airport State Vs. Ghulam Rabbani and Anr.
Page No. 20 of 44served a notice u/s 91 CrPC to Dr Kamal Kataria, complainant for providing x-ray report, ultrasound and photograph and other treatment papers. In pursuance of notice of PW28, u/s 91 CrPC, PW28 received one photograph of accused Ghulam Rabbani showing his surgery Ex PW10/C along with letter Ex PW28/O. In pursuance of notice of PW28, u/s 91 CrPC, PW28 received arrival and departure details of accused Ghulam Rabbani and Quadir Ahmed Ex PW28/P collectively vide letter Ex PW12/Q. On 08.05.2017 PW28 received medical treatment file of accused Ghulam Rabbani vide letter Ex PW5/A. The aforesaid file was running in 153 pages. PW28 had also received X-ray and report of accused Ghulam Rabbani along with these documents. On 10.05.2017 in pursuance of notice u/s 91 CrPC PW28 received pre departure manifest Ex PW6/A collectively vide letter Ex PW6/D. PW28 completed the investigation and prepared the challan and same was filed before the court. During evidence of PW28, MHCM produced one envelope without any seal. On opening of the envelope, one passport i.e. in the name of Ghulam Rabbani Alini, cash Rs 4270 and a phone Nokia 1100. Same has been identified by PW28 as Ex P28/1, Ex P28/2 (colly) and Ex P28/3 respectively to be the same which was handed over to him by HC Kirpal of AIIMS hospital and belonged of accused Ghulam Rabbani. During evidence of PW28, one passport (already Ex PW26/P1) taken on record which was in the name of Quadir Ahmad, same was identified by PW28 to be the same which was taken by him into possession. During evidence of PW28, MHCM produced one envelope without any seal. On SC No. 155/17 FIR No. 423/16 PS IGI Airport State Vs. Ghulam Rabbani and Anr.
Page No. 21 of 44opening of same, one mobile phone make Microsoft along with its Sim (Ex P28/4) was taken out and has been identified by PW28 to be the same which was recovered from the possession of accused Quadir Ahmad. During evidence of PW28, one CD taken on record and identified by PW28 as Ex P28/5 to be the same which was taken by him from CISF, IGI Airport having the footage dated 03.11.2016. During evidence of PW28, one plastic container mark C1 sealed with seal of UK produced by MHCM. Seals were intact. On opening of plastic container mark A, B, C, S1, S2 and one other bottle taken out. During evidence of PW28, MHCM produced photocopy of proceedings u/s 52A NDPS Act and a letter made by SHO PS IGI Airport to the Chairman Drug Disposal Committee. During evidence of PW28, a plastic container mark C1 sealed with seal of court produced by MHCM. On opening of the aforesaid plastic containers mark A, B, C, S1, S2 and one glass bottle. During evidence of PW28, one plastic container mark A sealed with seal of A/P taken out from the plastic container. On opening of the same, it found nothing (during the course of proceedings u/s 52A NDPS Act, the samples were taken out from the aforesaid plastic container and rest of the material had been disposed of Chairman Drug Disposal Committee). During evidence of PW28, one plastic container mark B sealed with seal of A/P taken out from the plastic container. On opening of the same, it found to contain double polythene and packing material and has been identified by PW28 as Ex P-28/6 to be the same which was taken by him into possession in presence of the doctor. PW28 deposed that the SC No. 155/17 FIR No. 423/16 PS IGI Airport State Vs. Ghulam Rabbani and Anr.
Page No. 22 of 44capsules were retrieved in double polythene by doctor concerned and were handed over to him and PW28 further stated that the packing material was used to cover capsules. During evidence of PW28, one plastic container mark C sealed with seal of A/P taken out from the plastic container. Seals were intact. On opening of the same, it found to contain cotton hand gloves and gauze (Ex P28/7), same were identified by PW28 to be the same which was used for cleaning the samples. During evidence of PW28, two pullandas mark S1 and S2 were taken out from the plastic container. The aforesaid plastic containers were having seal with the initial of IGI 20 on its top and IGI 1 on its bottom however same were not sealed. Both the plastic containers were not having any substance in it. During evidence of PW28, one glass bottle was taken out from the aforesaid plastic container on which word 'gastric Lavage' was written however it was also not having any substance. The afore-referred bottle having the seal of CMO HOPT AIIMS on one of its side. During evidence of PW28, one sealed plastic container mark S3 sealed with seal of UK produced by MHCM. On opening of the aforesaid plastic container, it found to contain matiyala colour powdery substance, same was identified by PW28 as ExP28/8 which was the same heroin which was recovered from the possession of accused. During evidence of PW28, one sealed plastic container mark S4 sealed with seal of UK produced by MHCM, on opening of the aforesaid plastic container, it was found to contain matiyala colour powdery substance, same was identified by PW28 as SC No. 155/17 FIR No. 423/16 PS IGI Airport State Vs. Ghulam Rabbani and Anr.
Page No. 23 of 44ExP28/9 which was the same heroin which was recovered from the possession of accused.
17. PW29 SI Surender Singh, CISF, NISA, Hyderabad deposed that on 13.02.2017 a request letter of IO of the case was received in the office of DIG, CISF, T-3, IGI Airport for providing CCTV footage dated 03.11.2016 along with certificate u/s 65B Indian Evidence Act. In pursuance of that letter, PW29 had collected the CCTV footage dated 03.11.2016 in a CD and same was supplied to the IO of the case along with certificate u/s 65B Indian Evidence Act. During evidence of PW29, MHCM produced one CD (Ex P-28/5) played in the court through CD driver. After seeing the clips of CCTV footage, PW29 stated that the afore-referred clips were copied by him in the afore-referred CD and was sent to SHO PS IGI Airport.
Statement of the accused:
18. Statements of both accused were recorded under section 313 Cr.P.C. and all the incriminating circumstances appearing in evidence were put to the accused persons to which accused persons denied all the incriminating circumstances. Accused Ghulam Rabbani stated that he felt unconscious at IGI airport and unclaimed capsules were planted upon him and he was falsely implicated in this case. Accused Ghulam Rabbani did not prefer to prefer to lead defence evidence and accused Quadir Ahmad opted to lead defence evidence, thereafter matter was fixed for defence evidence.
SC No. 155/17 FIR No. 423/16PS IGI Airport State Vs. Ghulam Rabbani and Anr.
Page No. 24 of 44Defence Evidence:
19. Accused Quadir Ahmad appeared as witness under section 315 CrPC and deposed that he came to Delhi in year 2016 due to personal threat in Afghanistan, visited Refugee camp New Delhi on 04.10.2016, got registered himself and got issued his passport in Delhi. Copy of UNHCR Ex.DW1/A was issued to him.
Accused Quadir Ahmad was repeatedly called by the police in respect to the accused Rabbani where he submitted the copy of UNHCR (Ex.DW1/A). He submitted his passport in concerned department and made complaint against the authority that he submitted his passport and gave copy of UNHCR document (Ex.DW1/A).
Arguments:
20. Ld. Addl. PP for State argued that evidence of Dr. Kamal Kataria (PW10) 57 capsules (weighing 525 grams without polythene used for packaging of capsules) were recovered after surgery and Dr. Kamal Kataria handed over 57 capsules to SI Manoj (PW28) same were found containing 314 grams of heroin, the FSL report i.e. Ex.PW1/A was found positive for diacetylmorphin for the samples sent for examinations, therefore, the prosecution has categorically proved its case that accused Ghulam Rabbani came to India with heroin capsules and was in possession of heroin capsules, therefore, accused Ghulam Rabbani may be convicted u/s 21 (c) NDPS Act while accused Quadir Ahmad was staying in India without any valid visa and even after the opportunity to lead DE, the accused has failed to SC No. 155/17 FIR No. 423/16 PS IGI Airport State Vs. Ghulam Rabbani and Anr.Page No. 25 of 44
bring on record any valid visa to stay in India, therefore, accused Quadir Ahmad may be convicted u/s 14 Foreigners Act.
21. Ld. counsel for accused Ghulam Rabbani argued that prosecution has miserably failed to prove its case. It is further argued that samples were not drawn in the presence of Ld. Magistrate nor correctness of contraband seized was certified by the Ld. Magistrate u/s 52 A NDPS Act and samples drawn by IO were sent to FSL which are not primary evidence as per judgment of Yusuf @ Asif Vs. State CRML. APPL. No.3191 OF 2023 by Hon'ble Supreme Court of India.
22. It is further argued that there is violation of office order 1/88 & 1/89 for sampling, after recovery of 57 capsules without testing each capsules separately, the contents of all the capsules were mixed and after that drug testing test was used for presence of contraband, therefore, this in violation of order 1/88 & 1/89 as it is possible that all the capsules were not containing contraband nor it has been mentioned that all were of identical size, weight bearing identical markings and contents of each package gave identical results by drug identification kit which is mandatory requirement before mixing recovered material as per said order, PW28 IO SI Manoj has deposed that he opened 57 capsules one by one and the powdery substance recovered from those capsules were kept in plastic jar, the weight of powdery substance was 314 grams then he checked the substance with the help of drug testing kit and found same to be heroin, therefore, this testimony of PW28 IO SI Manoj shows that he performed drug test after mixing the contents of all the capsules without giving any SC No. 155/17 FIR No. 423/16 PS IGI Airport State Vs. Ghulam Rabbani and Anr.
Page No. 26 of 44findings as per order 1/88 & 1/89. It is further argued by Ld. Counsel for accused that PW10 Dr. Kamal Kataria has deposed that he gave recovered capsules to IO/SHO IGI Airport alongwith one complaint for investigation but PW13 Ct. Ram Pal deposed that Dr. Kamal Kataria gave written complaint and capsules to SI Manoj/PW28 and even PW18 Insp Satish Malik also deposed the same therefore, there is contradiction in deposition of Dr. Kamal Kataraia and police officials regarding handing over of capsules, therefore prays for acquittal of accused.
23. Ld. counsel for accused Ghulam Rabbani relied upon following judgments/orders:
a) Amani Fidel Chris Vs. NCB CRL. 1027/15 & CRL. M. B. 511/2019 & CRL. MA 1660/2020 Hon'ble High Court of Delhi on 13.03.2020.
b) Yusuf Vs. State Criminal Appeal No. 3190 of 2023 decided by Hon'ble Supreme Court of India on 13.10.2023
c). Simarjit Singh Vs. State of Punjab Criminal Appeal No. 1443/2023 Hon'ble Supreme Court of India on 09.05.2023
24. Ld. Counsel for accused Quadir Ahmad argued that no investigation has been carried out by the police qua Ex.DW1/A i.e. UNHCR Certificate for seeking asylum as accused is Afghan National. It is further submitted by ld. Counsel for accused that ExDW1/A was issued on 04.10.2016 and accused was arrested on 15.12.2016, therefore, his application was pending before UNHCR for asylum and accused can not be charged u/s 14 Foreigners Act, therefore, accused may be acquitted.
SC No. 155/17 FIR No. 423/16PS IGI Airport State Vs. Ghulam Rabbani and Anr.
Page No. 27 of 4425. Ld. counsel for accused Quadir Ahmad relied upon following judgments/orders:
a) Nandita Haksar, Vs. State of Manipur and Ors. W.P. (Crl.
No. 6/2021, decided by Hon'ble High Court of Manipur on 03.05.2021 and
b) Mohammad Sediq Vs. Union of India 1998 (47) DRJ (DB) decided by Hon'ble High Court of Delhi on 21.08.1998 Discussion:-
26. In the present matter as per deposition of PW28/SI Manoj after getting 57 capsules from Dr. Kamal Kataria alongwith complaint, he opened 57 capsules one by one and powdery substance which was recovered from those caupsules were kept in plastic jar, the weight of recovered powdery substance was 314 grams, he test the same with drug testing kit and found to be heroin, thereafter, he marked the jar as Mark A alongwith heroin and double polythene/packaging material of capsules were kept in jar Mark B, then PW28 took two samples of 5 grams each from recovered heroin, gave them Mark S1 and S2, kept the same in different plastic containers and the sample S1 was sent to FSL.
The sample sent to FSL was not drawn in presence of Ld. Magistrate as per Section 52A NDPS Act.
27. In the judgment of Simarjit Singh Vs State of Punjab, SLP No. 1958/2023 dated 09.05.2023 Hon'ble Apex, it was held:
5. The learned counsel appearing for the appellant relied upon a decision of this Court in the case of Union of India v. Mohanlal & Anr. He submitted that the prosecution is vitiated as the work of drawing SC No. 155/17 FIR No. 423/16 PS IGI Airport State Vs. Ghulam Rabbani and Anr.Page No. 28 of 44
sample was done by PW-7 without taking recourse to sub-section 2 of Section 52A of the NDPS Act. He also pointed out that the examination-in-Chief of PW-7 SI Hardeep Singh which shows that the samples were drawn immediately after the seizure.
6.The learned counsel appearing for the respondent- State supported the impugned judgments.
7.We have perused the evidence of PW-7 Hardeep Singhin which he has stated that from the eight bags of poppy husk, two samples of 250 gms each were drawn and converted into 16 parcels. This has been done immediately after the seizure.
8.In paragraphs 15 to 17 of the decision of this Court in Mohanlal's case, it was held thus:
"15.It is manifest from Section 52-A(2)include(supra) that upon seizure of the contraband the same has to be forwarded either to the officer-in-charge of the nearest police station or to the officer empowered under Section 53 who shall prepare an inventory as stipulated in the said provision and make an application to the Magistrate for purposes of (a) certifying the correctness of the inventory, (b) certifying photographs of such drugs or substances taken before the Magistrate as true, and (c) to draw representative samples in the presence of the Magistrate and certifying the correctness of the list of samples so drawn.
16.Sub-section (3) of Section 52-A requires that the Magistrate shall as soon as may be allow the application. This implies that no sooner the seizure is effected and the contraband forwarded to the officer- in-charge of the police station or the officer empowered,the officer concerned is in law duty-bound to approach the Magistrate for the purposes mentioned above including grant of permission to draw representative samples in his presence,which samples will then be enlisted and the correctness of the list of samples so drawn certified by the Magistrate. In other words,the process of drawing of samples has to be in SC No. 155/17 FIR No. 423/16 PS IGI Airport State Vs. Ghulam Rabbani and Anr.Page No. 29 of 44
the presence and under the supervision of the Magistrate and the entire exercise has to be certified by him to be correct.
17.The question of drawing of samples at the time of seizure which, more often than not,takes place in the absence of the Magistrate does not in the above scheme of things arise. This is so especially when according to Section52-A(4) of the Act, samples drawn and certified by the Magistrate in compliance with sub-sections (2) and (3) of Section 52-A above constitute primary evidence for the purpose of the trial. Suffice it to say that there is no provision in the Act that mandates taking of samples at the time of seizure. That is perhaps why none of the States claim to be taking samples at the time of seizure."
9.Hence, the act of PW-7 of drawing samples from all the packets at the time seizure is not in conformity with the law laid down by this Court in the case of Mohanlal. This creates a serious doubt about the prosecution's case that substance recovered was a contraband.
10. Hence, the case of the prosecution is not free from suspicion and the same has not been established beyond a reasonable doubt. Accordingly, we set aside the impugned judgments insofar as the present appellant is concerned and quash his conviction and sentence.
28. In the judgment of Yusuf @ Asif Vs. State, Criminal Appeal No. 3191/2023 Hon'ble Supreme Court of India has held:
"11. For the sake of convenience, relevant sub-sections of Section 52A of the NDPS Act are reproduced hereinbelow:
"52A. Disposal of seized narcotic drugs and psychotropic substances.-
(1)______ SC No. 155/17 FIR No. 423/16 PS IGI Airport State Vs. Ghulam Rabbani and Anr.Page No. 30 of 44
(2) Where any [narcotic drugs, psychotropic substances, controlled substances or conveyances] has been seized and forwarded to the officer-in-charge of the nearest police station or to the officer empowered under section 53, the officer referred to in subsection (1) shall prepare an inventory of such [narcotic drugs,psychotropic substances, controlled substances or conveyances] containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the [narcotic drugs,psychotropic substances, controlled substances or conveyances] or the packing in which they are packed, country of origin and other particulars as the officer referred to in subsection (1) may consider relevant to the identity of the [narcotic drugs, psychotropic substances, controlled substances or conveyances] in any proceedings under this Act and make an application, to any Magistrate for the purpose of(a) certifying the correctness of the inventory so prepared; or
(b) taking, in the presence of such Magistrate,photographs of [such drugs or substances or conveyances] and certifying such photographs as true; or(c) allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn.(3) Where an application is made under subsection (2), the Magistrate shall, as soon as maybe, allow the application.(4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872) or the Code of Criminal Procedure, 1973 (2 of 1974),every court trying an offence under this Act, shall treat the inventory, the photographs of [narcotic drugs, psychotropic substances, controlled substances or conveyances] and any list of samples drawn under subsection (2) and certified by the Magistrate, as primary evidence in respect of such offence."12.A simple reading of the aforesaid provisions, as also stated earlier, reveals that when any contraband/narcotic substance is seized and forwarded SC No. 155/17 FIR No. 423/16 PS IGI Airport State Vs. Ghulam Rabbani and Anr.Page No. 31 of 44
to the police or to the officer so mentioned under Section 53, the officer so referred to in sub-section (1) shall prepare its inventory with details and the description of the seized substance like quality, quantity,mode of packing, numbering and identifying marks and then make an application to any Magistrate for the purposes of certifying its correctness and for allowing to draw representative samples of such substances in the presence of the Magistrate and to certify the correctness of the list of samples so drawn.13.Notwithstanding the defence set up from the side of the respondent in the instant case, no evidence has been brought on record to the effect that the procedure prescribed under sub-sections (2), (3) and (4) of Section 52A of the NDPS Act was followed while making the seizure and drawing sample such as preparing the inventory and getting it certified by the Magistrate. No evidence has also been brought on record that the samples were drawn in the presence of the Magistrate and the list of the samples so drawn were certified by the Magistrate. The mere fact that the samples were drawn in the presence of a gazetted officer is not sufficient compliance of the mandate of subsection (2) of Section 52A of the NDPS Act.14.It is an admitted position on record that the samples from the seized substance were drawn by the police in the presence of the gazetted officer and not in the presence of the Magistrate. There is no material on record to prove that the Magistrate had certified the inventory of the substance seized or of the list of samples so drawn.15.In Mohanlal's3case, the apex court while dealing with Section52A of the NDPS Act clearly laid down that it is manifest from the said provision that upon seizure of the contraband, it has to be forwarded either to the officer-in-charge of the nearest police station or to the officer empowered under Section 53who is obliged to prepare an inventory of the seized contraband and then to make an application to the Magistrate for the purposes of getting its correctness certified. It has been further laid down that the samples drawn in the presence of the Magistrate and SC No. 155/17 FIR No. 423/16 PS IGI Airport State Vs. Ghulam Rabbani and Anr.
Page No. 32 of 44the list thereof on being certified alone3Union of India vs Mohanlal and Anr.(2016) 3 SCC 379 would constitute primary evidence for the purposes of the trial. 16. In the absence of any material on record to establish that the samples of the seized contraband were drawn in the presence of the Magistrate and that the inventory of the seized contraband was duly certified by the Magistrate, it is apparent that the said seized contraband and the samples drawn the refrom would not be a valid piece of primary evidence in the trial. Once there is no primary evidence available, the trial as a whole stands vitiated.17. Accordingly, we are of the opinion that the failure of the concerned authorities to lead primary evidence vitiates the conviction and as such in our opinion, the conviction of the appellant deserves to be set aside. The impugned judgment and order of the High Court as well as the trial court convicting the appellant and sentencing him to rigorous imprisonment of 10 years with fine of Rs.1 lakh and in default of payment of fine to undergo further imprisonment of one year is hereby set aside."
29. Section 52A NDPS Act proceedings conducted in present matter on 02.02.2021 by Ld MM on application dated 18.01.2020 for necessary orders u/s 52A NDPS Act for disposal of case property. Therefore, section 52A NDPS Act proceedings were conducted only to get sample so that rest of case property can be destroyed. Samples drawn before Ld MM during such proceedings not sent to FSL nor certificate of correctness of original inventory of contraband is on record rather samples drawn by IO/PW28 on spot Ex S-1 was sent to FSL and not sample drawn before Ld Magistrate. Therefore, in view of the abovesaid law laid down by Hon'ble Apex Court, the samples have to be drawn in presence of Ld Magistrate, the inventory of the seized contraband has to be duly certified by Magistrate but SC No. 155/17 FIR No. 423/16 PS IGI Airport State Vs. Ghulam Rabbani and Anr.
Page No. 33 of 44in the present matter neither the samples sent to FSL were drawn in presence of Ld Magistrate nor the inventory of the seized contraband has been duly certified by the Ld Magistrate, therefore, as per the judgment of Yusuf (supra), the State has failed to lead the primary evidence w.r.t. the samples, it is violation of section 52A NDPS Act and on this ground only the accused is entitle to acquittal but it is pertinent to discuss other aspect of the arguments addressed by the parties.
30. The next contention of Ld. Counsel for accused Ghulam Rabbani is that there is violation of standing order of 1/88 & 1/89. PW28/SI Manoj deposed that after getting 57 capsules from Dr. Kamal Kataria alongwith complaint, he opened 57 capsules one by one and powdery substance which was recovered from those capsules were kept in plastic jar, the weight of recovered powdery substance was 314 grams, he test the same with drug testing kit and found to be heroin, thereafter, he marked the jar as Mark A alongwith heroin.
31. To discuss the said aspect it is necessary to reiterate the standing order 1/88 dated 15.03.1988 issued by Narcotic Control Bureau (which is pari materia of standing order 1/89 dated 13.06.1989 issued by departement of Revenue, Ministry of Finance, Govt. of India).
"1.7 Number of samples to be drawn in each seizure case-
(a) In the case of seizure of single package/container one sample in duplicate is to be drawn. Normally it is advisable to draw one sample in duplicate from each SC No. 155/17 FIR No. 423/16 PS IGI Airport State Vs. Ghulam Rabbani and Anr.Page No. 34 of 44
package/container in case of seizure of more than one package/container.
(b) However, when the package/container seized together are of identical size and weight, bearing identical markings and the contents of each package give identical results on colour test by U.N. kit, conclusively indicating that the packages are identical in all respect/the packages/container may be carefully bunched in lots of 10 packages/containers may be bunched in lots of 40 such packages such packages/containers. For each such lot of packages/containers, one sample in duplicate may be drawn.
(c) Where after making such lots, in the case of Hashish and Ganja, less than 20 packages/containers remains, and in case of other drugs less than 5 packages/containers remain, no bunching would be necessary and no samples need be drawn.
(d) If it is 5 or more in case of other drugs and substances and 20 or more in case of Ganja and Hashish, one more sample in duplicate may be drawn for such remainder package/containers.
(e)While drawing one sample in duplicate from a particular lot, it must be ensured that representative drug in equal quantity is taken from each package/container of that lot and mixed together to make a composite whole from which the samples are drawn for that lot."
Section (II) provides for general procedure for sampling, storage and reads as under:-
"SECTION II- GENERAL PROCEDURE FOR SAMPLING, STORAGE ETC.
2.1 All drugs shall be properly classified, carefully, weighed and sampled on the spot of seizure.SC No. 155/17 FIR No. 423/16
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2.2 All the packages/containers shall be serially numbered and kept in lots for sampling. Samples from the narcotic drugs and psychotropic substances seized, shall be drawn on the spot of recovery, in duplicate, in the presence of search witness (Panchas) and the person from whose possession the drug is recovered, and a mention to this effect should invariably be made in the panchanama drawn on the spot.
2.3 The quantity to be drawn in each sample for chemical test shall not be less than 5 grams in respect of all narcotic drugs and psychotropic substances save in cases of opium, ganja and charas (hasish) where a quantity of 24 grams in each case is required for chemical test. The same quantities shall be taken for the duplicate sample also. The seized drugs in the packages /containers shall be well mixed to make it homogeneous and representative before the sample (in duplicate) is drawn.
2.4 In the case of Seizure of a single package/container, one sample (in duplicate) shall be drawn. Normally, it is advisable to draw one sample (in duplicate) from each package/container in case of seizure of more than one package/container.
2.5 However, when the packages/containers seized together are of identical size and weight, bearing identical markings and the content of each package given identical results on color test by the drug identification kit, conclusively indicating that the packages are identical in all SC No. 155/17 FIR No. 423/16 PS IGI Airport State Vs. Ghulam Rabbani and Anr.Page No. 36 of 44
respects, the packages/containers may be carefully bunched in lots of 10 packages/ containers/ except in the case of ganja and hashish (charas), where it may be bunched in lots of 40 such packages/containers. For each such lot of packages/containers, one sample (in duplicate) may be drawn.
2.6 Whereafter making such lots, in the case of hashish and ganja, less than 20 packages/containers remain, and in the case of other drugs, less than 5 packages/containers remain, no bunching will be necessary and no sample need to be drawn.
2.7 If such remainders are more in the case of other drugs and substances and 20 or more in the case of ganja and hashish, one more sample (in duplicate) may be drawn for such a reminder package /container.
2.8 While drawing one sample (in duplicate) from a particular lot, it must be ensured that representative sample are in equal quantity is taken from a package/container of that lot and mixed together to make a composite whole from which the samples are drawn for that lot. 2.9 The sample in duplicate should be kept in heat sealed plastic bags as it is convenient and safe. The plastic bag container should be kept in a paper envelope which may be sealed properly. Such sealed envelope may be marked as original and duplicate. Both the envelopes should bear the S.No. of the package(s)/ containers from which the sample has been drawn. The duplicate envelope containing the SC No. 155/17 FIR No. 423/16 PS IGI Airport State Vs. Ghulam Rabbani and Anr.Page No. 37 of 44
sample will also have a reference of the test memo. The seals should be legible. This envelope which should also be sealed and marked 'secret-drug sample/ Test memo' is to be sent to the chemical laboratory concerned. 3.0 The Seizing officers of the Central Government Departments, viz., Customs. Central Excise, Central Bureau of Narcotics, Narcotics Control Bureau, Directorate of Revenue Intelligence etc. should dispatch samples of the seized drugs to one of the Laboratories of the Central Revenues Control Laboratory nearest to their office depending upon the availability of test facilities. The other Central Agencies like BSF, CBI and other Central Police Organizations may send such sample to the Director, Central Forensic Laboratory, New Delhi. All State Enforcement Agencies may send samples of seized drugs to the Director/Deputy Director/Assistant Director of their respective State Forensic Science Laboratory.
3.1 After sampling, detailed inventory of such packages /containers shall be prepared for being enclosed to the panchanama. Original wrappers shall also be preserved for evidentiary purposes."
32. In Amani Fidel Chris vs Narcotics Control Bureau CRL. Appeal 1027/2015 decided by Hon'ble High Court of Delhi on 13 March, 2020 it was held:-
"17. Mixing of the contents of container/package (in one lot) and then drawing the representative samples is not permissible SC No. 155/17 FIR No. 423/16 PS IGI Airport State Vs. Ghulam Rabbani and Anr.Page No. 38 of 44
under the Standing Orders and rightly so since such a sample would cease to be a representative sample of the corresponding container/package.
18. In the present case, four packets containing suspicious powdery substance were found concealed in a 'stroller bag'. On testing with the 'field testing kit', the powder in each packet tested positive for heroin. The I.O., without weighing the contents of each individual packet, mixed the powder from all the 4 packets in one polythene bag and then drew the sample from the mixture.
19. In the opinion of this court, the respondent ought to have adopted the procedure outlined in Para 2.4 of the Standing Order 1/89 [or para 1.7(a) of Standing Order 1/88] by drawing sample (in duplicate) from each of the 4 packets separately and then sending the samples for testing.
20. Going by the submission of learned counsel for the respondent that the procedure in para 2.5 [or para 1.7(b) of Standing Order 1/88] was to be followed and the four packets were to be considered as one lot, even then the contents of all the four packets ought not to have been mixed with each other. Instead, in terms of Para 2.8 [or para 1.7(e) of Standing Order 1/88], representative samples (in duplicate) from each individual packet ought to have been taken. Once representative samples were drawn from each individual packet, then such representative samples were to be mixed together to make a composite SC No. 155/17 FIR No. 423/16 PS IGI Airport State Vs. Ghulam Rabbani and Anr.Page No. 39 of 44
whole, out of which a further sample was to be drawn as a representative sample of this "lot of four packets". The Standing Order nowhere provides that the contents of all the containers/packages are to be mixed, which has been done in the present case.......
23. In Union of India & Ors. v. Bal Mukund & Ors. reported as (2009) 12 SCC 161, the Supreme Court while referring to the Standing Instruction 1/88, held as follows :-
"36. There is another aspect of the matter which cannot also be lost sight of. Standing Instruction No. 1/88, which had been issued under the Act, lays down the procedure for taking samples. The High Court has noticed that PW- 7 had taken samples of 25 grams each from all the five bags and then mixed them and sent to the laboratory. There is nothing to show that adequate quantity from each bag had been taken. It was a requirement in law."
33. Therefore, it has been held by Hon'ble Delhi High Court as well as by Hon'ble Apex Court taking representative sample after mixing the contents of 4/5 bags into one is not permissible. Office order 1/89, 2.5 states that "However, when the packages/containers seized together are of identical size and weight, bearing identical markings and the content of each package given identical results on color test by the drug identification kit, conclusively indicating that the packages are identical in all respects, the packages/containers may be carefully bunched in lots of 10 packages/ containers/ except in the case of ganja and hashish (charas), where it may be bunched in lots of 40 such packages/containers. For each such lot of SC No. 155/17 FIR No. 423/16 PS IGI Airport State Vs. Ghulam Rabbani and Anr.
Page No. 40 of 44packages/containers, one sample (in duplicate) may be drawn. "
Therefore going by the wordings of 2.5 clause of said office order lots of 10 packets/container can be bunched into one but i.e. after finding that the packages/container seized together are of identical size, weight, bearing identical markings and contents of each package gave identical result on colour test by drug identification kit conclusively indicating that packages are identical in all respect, but in present case IO/PW28 did not mention anything about the identical size, weight of the capsules recovered nor IO has bothered to test individual capsule with drug identification kit rather he mixed the contents of 57 capsules and then conducted the drug identification test that was colour based on spot, it is possible that many of the capsules might not be containing heroin moreover even the IO has not bunched the capsules in the lots of 10 as per said officer order and the procedure of sampling adopted by IO is alien to order no. 1/88 & 1/89, therefore, it can not be said that the representative sample was sent to FSL by the IO/PW28 SI Manoj Kumar.
34. The next contention of accused Ghulam Rabbani is that there is contradiction in the deposition of prosecution witnesses w.r.t. handing over capsules by PW10 Dr. Kamal Kataria to IO PW28 SI Manoj or to SHO IGI/PW18 Insp. Satish Malik. PW10 has deposed that after surgery he gave recovered capsules and one complaint to IO/SHO IGI airport. PW13 Ct. Rampal deposed that capsules were handed over by Dr. Kamal Kataria /PW10 to PW28 SI Manoj and even the PW18 Insp. Satish Malik also deposed that the capsules were handed over to SI Manoj in his SC No. 155/17 FIR No. 423/16 PS IGI Airport State Vs. Ghulam Rabbani and Anr.
Page No. 41 of 44presence, therefore, apparently PW18 Insp. Satish Malik/SHO IGI was also present when samples were handed over to PW28 SI Manoj and even PW10 Dr. Kamal Kataria has mentioned that samples were handed over to IO/SHO IGI, therefore, this shows that both were present there and samples were handed over to IO SI Manoj therefore, apparently there is no contradiction in deposition of prosecution witnesses w.r.t. handing over of sample by PW10 Dr. Kamal Kataria to PW28 SI Manoj.
Discussion w.r.t. Section 14 Foreigners Act qua accused Qudir Ahmad.
35. Accused Quadir Ahmad has taken defence that he is Afghan National and has applied for asylum before the United Nation High Commission for Refugees New Delhi, a certificate HCR/305-16C02643 was issued on 04.10.2016, the same is valid from 21.11.2023 to 20.11.2024 and which states that :-
"TO WHOM IT MAY CONCERN This is to certify that Mr. Quadir Ahmad, country of original Afghanistan, has been registered as an asylum with United Nations High Commissioner for refugees, India. His application for refugee status is under consideration.
Any assistance provided to him would be highly appreciated."
36. PW28 SI Manoj/IO has deposed that he obtained arrival detail of present accused/applicant and as per Ex.PW28/P, the accused Quadir Ahmad came to India on 06.10.2015 on passport no. OR155117. The accused Quadir is not a citizen of India and once it is proved and admitted by accused that he is Afghan National and came to India in 2016 then the burden shifts upon SC No. 155/17 FIR No. 423/16 PS IGI Airport State Vs. Ghulam Rabbani and Anr.
Page No. 42 of 44accused as per Section 106 Indian Evidence Act to place on record the document which authorizes him to remain in India validly and the accused has brought on record a certificate Ex.DW1/A allegedly issued by UNHCR but ironically no one has been called to prove the said document Ex.DW1/A. The document Ex.DW1/A has been allegedly issued on 04.10.2016 and is valid till 21.11.2023 to 20.11.2024 but how the said document issued on 04.10.2016 is valid from 21.11.2023 to 20.11.2024 is not explained by the accused nor any document issued between 2016 to 21.11.2023 has been filed on record by the accused. Accused/DW1 has deposed that he came to India in 2016, then he visited refugee camp on 04.10.2016 and got registered himself thereafter Ex.DW1/A was issued to him but this is false deposition of accused as the accused did not come to India in 2016 rather the accused Quadir Ahmad as per Ex.PW9/B came to India on 06.10.2015 i.e. immigration record and the passport of the accused also bears the immigration stamp of arrival of 06.10.2015. In addition to this, accused has not filed any complaint before any forum till date to show that he was having valid UNHCR Certificate moreover, when the said document Ex.DW1/A has not been proved and there is discrepancy in the year of arrival of accused as deposed by accused, therefore, the accused has failed to discharge the burden of onus as per Section 106 Indian Evidence Act and the accused was staying in India without any valid document/visa.
Final verdict:
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37. Accordingly, in view of the abovesaid discussion and due to violation of mandatory provisions i.e. section 52A NDPS Act, non compliance of sampling procedure, the prosecution has failed to prove its case qua accused Ghulam Rabbani and accused Ghulam Rabbani is acquitted of the offence u/s 21 (c) NDPS Act while the prosecution has proved its case for staying without valid visa qua accused Quadir Ahmad, therefore, accused Quadir Ahmad is convicted of the offence u/s 14 Foreigners Act.
38. Mr Ghulam Rabbani is directed to furnish bail bond u/s 437-A CrPC in the sum of Rs 50,000/- with one surety of like amount.
39. List for arguments on sentence qua accused Quadir Ahmad on 13.03.2024.
Announced in the open court on 11.03.2024 (SUDHIR KUMAR SIROHI) ASJ (SPECIAL JUDGE) NDPS Act, New Delhi District, PHC, ND SC No. 155/17 FIR No. 423/16 PS IGI Airport State Vs. Ghulam Rabbani and Anr.
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