Delhi District Court
5.2012 vs . on 23 March, 2023
IN THE COURT OF SHRI ARUL VARMA, ASJ-04 AND
SPECIAL JUDGE (NDPS) SOUTH-EAST: SAKET COURTS: NEW
DELHI
CNR No DLSE010058442016
SC No. 2651/2016
FIR No. 142/2012
U/s 21 NDPS Act
P.S. H.N DIN
State
Vs.
Anwari Begum @ Annu
W/o Sh. Azad
R/o Near Community Centre DDA Park
Basti, H.N Din, New Delhi
........ Accused
Date of Institution : 26.08.2016
Date of reserving the Judgment : 23.03.2023
Date of Judgment : 23.03.2023
JUDGMENT
1. The accused herein has been arraigned for trial for allegedly committing an offence u/s 21 of the Narcotics Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as the 'Act'), as she was found in possession of 10.7 grams of smack on 30.04.2012, at about 04:00 PM, Near Community Centre, DDA Park, H.N Din Basti, New Delhi.
FACTS IN BRIEF / CASE SET UP BY THE PROSECUTION
2. The facts as alleged by the prosecution as per police report u/s 173(2) CrPC and evidence on record, are hereby recapitulated: It was alleged that on 30.04.2012, at about 04:00 PM near Community Centre, DDA FIR No.142/2012 State Vs. Anwari Begum @ Annu Page No. 1/51 Digitally signed by ARUL ARUL Date:
VARMA VARMA 2023.03.23 17:34:46 -0300
Park Hazrat Nizamuddin Basti, New Delhi within the jurisdiction of PS Hazrat Nizamuddin, accused Anwari Begum @ Annu was found in possession of 10.7 grams of smack. After completion of investigation, charge sheet was filed against the accused in the Court u/s 21 NDPS Act.
CHARGE FRAMED QUA THE ACCUSED
3. On 22.12.2016, charge under section U/s 21 NDPS Act was framed qua the accused, to which she pleaded not guilty and claimed trial.
EVIDENCE LED BY PROSECUTION
4. In the trial, the prosecution in support of its case, examined twelve witnesses, the succinct testimonies whereof are as follows:
5. PW-1 SI Ramesh Pal deposed that on 30.04.2012, he was posted as ASI at PS H. N. Din and his duty hours were 05:00 pm to 01:00 am (night) as Duty Officer. He deposed that Ct. Satish brought a rukka to him at about 06:50 pm sent by SI Ajay Kumar. He made endorsement on the said rukka Ex.PW1/A at point-A and handed over same to the computer operator for recording of FIR. He recorded FIR on the basis of said rukka and copy of computerized FIR is Ex.PW1/B bearing his signature at point-A (OSR). After registration of FIR, he handed over computerized FIR and rukka to Ct. Satish for delivering the same to the IO/SI Kuldeep Singh for further investigation.
6. PW-2 SI Dinesh Kumar deposed that on 05.07.2012, he was posted as FIR No.142/2012 State Vs. Anwari Begum @ Annu Page No. 2/51 Digitally signed by ARUL ARUL VARMA Date:
VARMA 2023.03.23
17:35:00 -
0300
SI in PS H. N. Din. On that day, further investigation of this case was entrusted to him by the order of SHO. He received the FSL Report in this case and prepared the charge sheet against the accused, after completion of file in all respect, he filed the chargesheet in the Court, as per rules.
7. PW-3.HC Anand Kumar deposed that on 30.04.2012, he was posted as Constable in PS H. N. Din. On that day, he alongwith Ct. Satish was patrolling in the area when a secret informer met them at about 4 pm and informed that one lady was selling smack at Lodhi Road, near DDA Park. They passed this information to DO and in pursuance thereof, SI Ajay alongwith L/Ct. Roshini reached at the spot. SI confirmed the secret information from the secret informer and after satisfying himself, he requested some passersby to join the raiding party after informing them about the aforesaid secret information but all refused and went away citing their inability without even disclosing their names and address. It was deposed that thereafter, without wasting any further time, SI Ajay organized a Raiding party comprising he, Ct. Satish, L/Ct. Roshini and secret informer and they all reached near the wall of DDA Park Lodhi Road where the secret informer pointed out towards a lady being the same lady regarding whom he had given the said information who was sitting in the DDA Park near the wall of Community Center and after pointing out towards her and then left. FIR No.142/2012 State Vs. Anwari Begum @ Annu Page No. 3/51
Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.03.23 17:35:10 -0300 Thereafter, they all alongwith the help of L/Ct. Roshini, apprehended the said lady who during interrogation disclosed her name as Anwari Begum @ Annu i.e. the accused. It was further deposed that the accused was informed about the secret information which was with them that she was having smack with her. Thereafter notice u/s 50 of NDPS Act was served upon the accused by SI Ajay and she was informed about her legal rights that if she desires her search could be conducted in presence of a Magistrate or a Gazetted Officer and she could be produced before the Magistrate and they can also be called at the spot for her search and that she can also conduct the search of the members of the police raiding party before her search but accused refused to avail her legal right as referred above and she also refused to conduct the search of the police party before her search and she also refused her search to be conducted in presence of Gazetted Officer or Magistrate and submitted that her search can be conducted. The carbon copy of the notice u/s 50 of NDPS Act served upon the accused lying in the Court file was proved as mark-A and the refusal of the accused upon it is point-A to A and her thumb impression was proved at point-
X. Thereafter, the search of accused was conducted by L/Ct. Roshini behind a tree and using a curtain and after conducting the search they were informed by L/Ct. That 65 small packets (puria) lying in a white piece of paper were recovered from the right side margin (nefa) of blue FIR No.142/2012 State Vs. Anwari Begum @ Annu Page No. 4/51 Digitally signed by ARUL ARUL Date:
VARMA VARMA 2023.03.23 17:35:19 -0300
colour Salwar. The said packets were produced by L/Ct. Roshini before them after conducting the search of accused. The packets were opened and check and were found containing light orange colour powder appearing to be smack. All the packets were opened and the powder lying in it was weighed with the weighing machine which was with the IO in his IO kit. The total weight of the smack was found to be 10.7 gm out of which 2 gm was separately taken out as sample and was kept in a white piece of paper and a separate pullanda of the same was prepared. The remaining smack was kept in the same white colour paper envelope and the empty packets of paper in which the smack were recovered were also kept in a piece of cloth separately and thereafter the sample smack and the remaining smack were separately sealed with the seal of AK. The packet containing sample smack was marked S1, the parcel containing the remaining smack was marked as S2 and the parcel containing the empty packets (in which smack was recovered) was marked as S3 and all were sealed with the seal of AK. FSL Form was filled up at the spot. Thereafter, all above sealed parcels were seized vide seizure memo Ex.PW3/A. Seal after used was handed over to him by SI Ajay in the meanwhile SHO had also reached at the spot who interrogated accused and he was also produced all three above sealed parcels, FSL Form. SHO had counter sealed all three above pullandas with his seal and had also put his seal in the FSL form and FIR No.142/2012 State Vs. Anwari Begum @ Annu Page No. 5/51 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.03.23 17:35:29 -0300 thereafter he left the spot taking all three sealed parcels and FSL Form alongwith him. Thereafter, rukka was prepared by SI Ajay and Ct. Satish was sent to PS for the registration of FIR. After the registration of FIR, Ct. Satish returned to spot alongwith SI Kuldeep Kumar as the further investigation of the case was entrusted to him. Copy of FIR and original rukka were with him. SI Kuldeep had prepared the site plan of the spot, interrogated and accused and then arrested her and conducted her personal search. Disclosure statement of accused was also recorded. He further submitted that his statement was recorded by IO.
8. PW-4 Sh. Adesh Kumar deposed he was working as Senior Scientific Officer Chemistry in FSL, Rohini since 2011. Before that he was working as Scientific Assistant Chemistry and Senior Scientific Assistant Chemistry in FSL, Delhi. He has possessed the experience of about 23 years in this field and during his this tenure he had examined more than 10,000 exhibits of chemistry and had deposed in various Courts of Law as an expert witness. In the present case two sealed cloth parcels out of which one parcel no. S1 was duly sealed with two seals of AK and two seals of SKIIIS and the other parcel No. S-3 was sealed with four seals of AK and four seals of SKIIIS were received in their office on 29.05.2012 through Ct. Devender alongwith original forwarding letter. The copy of forwarding letter was taken on record which was proved as Ex. PA (OSR). The seals on the exhibit were FIR No.142/2012 State Vs. Anwari Begum @ Annu Page No. 6/51 Digitally signed by ARUL ARUL Date:
VARMA VARMA 2023.03.23 17:35:37 -0300
intact and tallied with the forwarding letter. Alongwith the forwarding letter, Carbon copy of RC No. 51/21/12, photocopy of DD No. 14A, copy of FIR, copy of rukka, copy of seizure memo of smack were also received. The above exhibits and documents were received in their office vide case acceptance memo. He further deposed that he had brought the said original memo. He had examined the above exhibits from 08.06.2012 to 18.06.2012. On opening, the parcel S-1 it was found containing orange brown coloured powdery substance weighing approximately 4.139 gram with paper and parcel S-3 was found containing 160 pieces of square shaped white plain paper and one polythene having some orange brown deposits. On Chemical TLC & GC & GC-MS examination, (I) Exhibits 'S-1' and 'S-3' positive test for the presence of Diacetylmorphine, 6-Monoacetylmorphine, Caffeine, Alprazolam, Phenobarbitone and Paracetamol. (ii) Exhibit 'S-1' was found to contain Diacetylmorphine 3.5%, Caffeine 19.8%, Alprazolam 18.7%, Phenobarbitone 0.6% and Paracetamol 52.5%. After the examination, the remnants of the exhibits were sealed with the seal impression of 'AY FSL DELHI' and returned the same to SHO PS H. N. Din alongwith the forwarding letter of Director FSL. His detailed report in this regard was proved as Ex.PW4/A.
9. PW-5 HC Vasant Kumar deposed that he was working as SO to ACP New Friends Colony. He had brought the summoned record of Diary FIR No.142/2012 State Vs. Anwari Begum @ Annu Page No. 7/51 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.03.23 17:35:47 -0300 Register having relevant entry at Sl. No. 3435 vide which on 01.05.2012, a special report u/s 57 of the NDPS Act sent by SI Kuldeep Kumar and duly forwarded by SHO PS H. N. Din was received by the then SO/Reader to ACP namely HC Willson. The photocopy of relevant entry no. 3435 was taken out record as Ex.PA (OSR) which was in handwring of HC Willson. He had also brought the original information u/s 57 of the NDPS Act received as above. The same was taken on record as Ex.PB.
10. PW-6 Sh. Data Ram (Retd. ACP) deposed that on 01.05.2012 he was posted as ACP at PS NFC. On that day his Reader HC Willson put up before him a special report U/s 57 NDPS Act sent by SI Kuldeep Kumar and forwarded by then SHO PS H.N.Din Insp. Sunil Kumar which was already proved Ex.P-B which was perused by him on the same day and he put his endorsement as seen and his signatures at portion A encircled with red ink.
11. PW-7 ASI Willson John, deposed that on 01.05.2012 he was posted as HC and working as Reader to ACP New Friends Colony, Sh. Data Ram. On that day Dak Rider produced to him special report U/s 57 NDPS Act already exhibited as Ex.P-B sent by SI Kuldeep and forwarded by SHO PS H.N.Din which he put before ACP Sh.Data Ram who perused the same and put his endorsement and signatures at portion A. Thereafter, he diarised said letter vide Diary No.3435 Dt. FIR No.142/2012 State Vs. Anwari Begum @ Annu Page No. 8/51
Digitally signed by ARUL ARUL Date:
VARMA VARMA 2023.03.23 17:35:59 -0300
01.05.2012 in his Dak Register, relevant copy of which was proved as Ex.P-A which was in his hand.
12.PW-8 Ct. Devender Kumar deposed that on 29.5.2012 he was posted as Constable at PS, HN Din. On that day, on the instruction of the IO, he has taken the case property of this case from MHC/M i.e. two sealed pullandas sealed with seal of AK and SKIIIS vide RC whose number he did not remember then. He deposited the pullandas in FSL Rohini on the same day in intact condition. On return to the PS, he deposited the acknowledgement receipt thereof with the MHC/M.
13.PW-9 Inspector Kuldeep Kumar deposed that on 30.04.2012, he was posted as SI at PS Hazrat Nizamuddin. On that day, after registration of the FIR of the present case, the investigation was assigned to him. He then reached at the spot i.e. DDA Park, Lodhi Road, Basti Nizamuddin. At the spot, SI Ajay, W/Ct. Roshni alongwith beat staff and one lady met there. SI Ajay apprised him about the recovery of the smack from the said lady and the proceedings conducted by him. SI Ajay handed over him all the documents prepared by him and the said raiding, whose name revealed after inquiry as Anwari Begum. In the presence of lady constable Roshni, he made inquiry from accused and arrested her in this case vide her arrest memo Ex. PW 9/A. He further deposed that at his instance, lady Constable. conducted the personal search of accused and recovered one original notice u/s 50 NDPS Act. He FIR No.142/2012 State Vs. Anwari Begum @ Annu Page No. 9/51 Digitally signed by ARUL ARUL Date:
VARMA VARMA 2023.03.23 17:36:08 -0300
prepared the personal search memo which was proved as Ex. PW9/B. It was also deposed that thereafter, the accused was sent to Hospital for her medical examination. He recorded the statement of witnesses. He then prepared the report u/s 57 NDPS Act regarding the arrest of accused and other proceedings. The same was proved as Ex. PB, which was sent to ACP through the SHO. He further submitted that he might state that at the instance of SI Ajay, he prepared the site-plan of the place recovery which was proved as Ex. PW9/C. The case property was sent to FSL. Thereafter, he was transferred and the further investigation was conducted by some other IO.
14.PW-10 HC. Roshni deposed that on 30.04.2012, she was posted at PS H.N Din. On that day she alongwith SI Ajay Kumar reached at DDA park near Lodhi Road where Ct Satish and Ct Anand met and they produce one secret informer. SI Ajay made inquiry from the informer and also asked some passers-by to join the ready party but none could prepare. When they reached near the wall of park the secret informer pointed out one lady and told that she was selling smack. They apprehended the said lady, whose name revealed after inquiry as Anwari Begum @ Annu. She further deposed that IO apprised the accused about the secret information and explained her legal rights regarding her search. The IO told the accused that in pursuance of the secret information, her search was to be taken and the said search could FIR No.142/2012 State Vs. Anwari Begum @ Annu Page No. 10/51 Digitally signed by ARUL ARUL VARMA Date:
VARMA 2023.03.23 17:36:18 -0300
be conducted in the presence of a Gazetted officer or Magistrate, if she so desires. The IO also gave her a notice u/s 50 NDPS Act in this regard, which was proved as Ex. PW 10/A. Thereafter, on the direction of the IO, she conducted the bodily searched of the accused. From the right side of Nefa of Salwar of accused she recovered 65 paper pudias and handed over to the IO. The IO checked the pudias and the same were found containing orange colour powder substance, which was appearing to be smack. The entire substance was collected at one place and weighed the same and it was found to be 10.7 gram. IO drew a sample of 2 gram from the said smack. The sample put in a pudia and converted it into close parcel and mark S1 was given to it. The remaining substance was also kept in a parcel to which Mark S2 was given. The paper pieces of pudias were also sealed in a parcel and mark S3 was given to it. All 3 parcels were sealed with a seal of AK. The seal was handed over to Ct Anand after used. In the meantime SHO reached there. The IO filled in FSL form and affixed his same seal on it.
The IO seized the 3 parcels and FSL form through seizure memo. The IO handed over sealed parcels with FSL form and carbon copy of seizure memo to the SHO who also affixed his counter seal of SK III S upon the parcels and FSL form. The SHO took the aforesaid parcels from the spot. Thereafter IO prepared rukka and sent to PS through Ct Satish. After getting registered the FIR, Ct Satish returned to spot and FIR No.142/2012 State Vs. Anwari Begum @ Annu Page No. 11/51 Digitally signed by ARUL ARUL Date:
VARMA VARMA 2023.03.23 17:36:30 -0300
the investigation was assigned to SI Kuldeep Kumar. SI Kuldeep prepared the site plan at the instance of SI Ajay and made inquiry from the accused. SI Kuldeeep arrested the accused in this case vide arrest memo Ex. PW9/A. At the instance of IO, she conducted the personal search of accused and recovered one notice PW Ex. 3/C from, her possession. The IO prepared the personal search memo of accused which was proved as Ex.PW9/B. IO interrogated the accused and recorded her disclosure statement. She took the accused to AIIMS Hospital and got her medically examined. IO recorded her statement in this regard.
15. PW-10 Inspector Ajay Kumar(Inadvertently also listed as PW-10 during deposition dated 16.03.2023) deposed that on 30.04.2012 he was posted as SI at PS H.N Din. On that day, an information was received by duty officer regarding the selling of smack by a lady in the area of DDA park Nizamuddin. DD no. 14 A vide Ex. Ex.PW12/B was recorded and the same was entrusted upon him by the SHO. In pursuance of the said DD he alongwith W/Ct Roshni reached the spot at DDA Park. He also brought the IO Kit. At the spot, Ct Satish and Ct Anand met and they produced secret informer. It was deposed that he made inquiry from the informer. He after having satisfaction asked some passersby to join raiding party but they did not agree and went away after disclosing their reasonable excuses. Thereafter, he alongwith FIR No.142/2012 State Vs. Anwari Begum @ Annu Page No. 12/51 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.03.23 17:36:40 -0300 all three constables and secret informer, at the instance of informer reached at DDA park gate, near community Centre and there the informer pointed out one lady who was sitting alongwith the wall of the park. At his instance, Ct Roshni apprehended the said lady and after inquiry the name of this lady was revealed as Anwari Begum. He further deposed that he apprised the accused about the secret information that she was having smack and her search was to be taken.
The accused was also apprised about her legal right that her search could be taken in the presence of a Gazetted officer of a Magistrate, if she so desire. She refused to avail her legal rights and she produced some paper slips and told that she was having nothing except these slips. He took over the said paper slips. He had given a notice u/s 50 NDPS Act to accused regarding her search in original. The accused had refused and since she was illiterate so he wrote down her reply below the carbon copy of notice from point A to A which was proved as Ex.PW9/A which bore the RTI of accused at point X. He asked Ct Roshni to conduct the bodily search of accused. CT Roshni, on his direction conducted the search of accused behind a tree with the help of cloth by making it a curtain. Ct Roshni recovered 65 paper pudiyas from the right dhub of the wearing salwar of the accused and handed over to him. He checked the said pudiyas and the same were found containing orange colour powder substance. The said substance FIR No.142/2012 State Vs. Anwari Begum @ Annu Page No. 13/51 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.03.23 17:36:50 -0300 appearing to be smack. He collected the entire substance at one place and then weighed it on weighing machine and it was found to be 10.7 gram smack. Out of the said substance, he drew sample of 2 gram smack and kept it in a paper which was converted into parcel. The remaining smack also converted into a parcel. The 65 pudiya papers alongwith empty pieces of paper which were earlier given by accused were kept in a separate parcel. The said paper slips were 160 intoto. All three parcels were marked S1, S2 and S3. He sealed all three parcels of his seal of AK. He filled in the FSL form and affixed the same seal on it. The seal was handed over to CT Anand after use. He seized the parcels and FSL form through seizure memo Ex.PW3/A. In the meantime, the SHO came at the spot and he apprised him about the recovery proceedings. The SHO made inquiry from accused. He handed over all three parcels with FSL form to the SHO. The SHO affixed his counter seal of SK-III S on the parcels and the FSL form and then he took the same to police station alongwith the copy of seizure memo. Thereafter, he prepared rukka Ex.PW13/B. The rukka was given to Ct Satish and sent him to PS for registration of FIR. After registration of FIR the investigation was assigned to SI Kuldeep and he reached the spot with Ct Satish. He apprised the SI Kuldeep about the proceedings conducted by him. He handed over the documents and the accused to SI Kuldeep. The IO made inquiry from accused and he FIR No.142/2012 State Vs. Anwari Begum @ Annu Page No. 14/51 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.03.23 17:36:59 -0300
prepared the site plan of the place of recovery at his instance which was already proved as Ex.PW9/C. Earlier, he interrogated the accused and recorded her disclosure statement vide Ex. PW3/B. The IO arrested the accused in this case.
16.PW11 ASI Satish deposed that On 30.04.2012, he was posted at Police Station Hazrat Nizamuddin. On that day, he alongwith Ct. Anand were on patrolling duty in the area of DDA Park, Nizamuddin Basti. During the patrolling at around 03:00/03:30 PM, a secret informer met and told them that one lady was selling smack near the wall of community centre, Nizamuddin Basti. They conveyed this information to police station H. N. Din through duty officer and in pursuance of which, SI Ajay came to the place where they were present alongwith one lady constable. They apprised SI Ajay about the secret information. Thereafter, SI Ajay constituted a raiding party comprising all of them. He also asked some passersby to join the raiding party but none could be prepared. Thereafter, they all alongwith the secret informer reached at the disclosed place i.e. near the wall of the community centre and there the secret informer pointed out a lady about whom he gave the secret information. The said lady was apprehended and her name was revealed after inquiry as Anwari Begum. It was further deposed that SI Ajay told the said lady about the secret information and apprised her FIR No.142/2012 State Vs. Anwari Begum @ Annu Page No. 15/51 Digitally signed by ARUL ARUL Date:
VARMA VARMA 2023.03.23 17:37:09 -0300
about her legal right that her search was to be taken for the purpose of recovery of contraband substance, if any and her search could be taken in the presence of a Gazetted Officer or a Magistrate, if she so desire. In this regard, the IO also gave one notice u/s 50 NDPS Act to accused, which was proved as Mark A. The accused had refused to avail her legal right and reply on behalf of the accused was written below the notice. Ct. Roshni, on the direction of the IO, put the accused behind a tree and conducted her search and recovered 65 paper pudias in a white piece of paper from the nefa of her salvar. The said 65 pudias were handed over to the IO. After opening the pudias, the substance in the said pudias was appearing to be 'smack'. IO had tested the substance on the field testing kit and it was found to be 'smack'. All the substance from all the pudias, collected at one place and weighed the same which was found to be 10.7 grams. Out of the said substance, two grams smack was taken separately for the purpose of sample. The said sample was wrapped in a paper pudia and converted into a parcel. The remaining substance was also kept in a parcel separately and sealed both the parcels with the seal of 'AK'. The sample parcel was given Mark S-1 and the parcel containing the remaining substance was given Mark S-2. The pieces of paper of pudias were also sealed in a separate parcel with the same seal and Mark S-3 was given to it. FSL form was filled in by the IO and the same seal was affixed on it. The seal was FIR No.142/2012 State Vs. Anwari Begum @ Annu Page No. 16/51 Digitally signed by ARUL ARUL Date:
VARMA VARMA 2023.03.23 17:37:20 -0300
handed over to Ct. Anand after use. The parcels and the FSL form were seized through seizure memo already Ex. PW 3/A. In the meantime, SHO reached the spot. The IO handed over the parcels and FSL form to SHO, who affixed his seal 'SK III S' on the parcels and the FSL form. The SHO took away the parcels and the FSL form with the copy of seizure memo. The IO prepared tehrir and given the same to Ct. Anand and sent him to PS for the registration of the FIR. After registration of the FIR, the investigation was assigned to SI Kuldeep, who reached the spot. IO/SI Kuldeep had arrested the accused in this case. Thereafter, the accused was got medically examined.
17.PW-12 Inspector Sunil Kumar deposed that on 30.04.2012, he was posted as SHO at PS Hazrat Nizamuddin. On that day at about 04:00 PM, Duty Officer received a telephonic call vide DD No. 14-A regarding selling of smack in DDA Park, Nizamuddin. This information was assigned to SI Ajay Kumar and he was directed to conduct raid. Accordingly, he alongwith staff including W/Ct. Roshni, reached the spot. After sometime, SI Ajay told him on telephone that he with the help of W/Ct. Roshni, apprehended one lady and recovered smack from her and the proceedings were going on. At about 06:15 PM, he also reached the spot at DDA park near Community Center, Hazrat Nizamuddin. At the spot, SI Ajay found alongwith accused namely Anwari Begum as told by her at the spot. He made the inquiry from FIR No.142/2012 State Vs. Anwari Begum @ Annu Page No. 17/51 Digitally signed by ARUL ARUL Date:
VARMA VARMA 2023.03.23 17:37:29 -0300
accused. SI Ajay handed over him three sealed parcels, Mark S-1, S-2 and S-3 and bearing the seal of 'AK' alongwith the copy of seizure memo and FSL form. He affixed his counter seal of 'SK III S' upon the parcels and the FSL form and took the same to PS. He deposited the parcels with the MHC(M) in the malkhana. The MHC(M) recorded the entry in this regard in Register No. 19. The copy of which was proved as Ex. PW 12/A. He further deposed that he might state that the attested true copy of DD no. 14-A is Ex. PW12/B. On 01.05.2012, the 2nd IO SI Kuldeep Kumar had prepared a report u/s 57 NDPS Act, which is Ex. PB. He forwarded the said report to ACP vide his signature at Point X. IO recorded his statement in this regard.
18. The relevancy of the witnesses examined are succinctly delineated in the following tabular form:
PW NAME RELEVANCE
1 SI Ramesh Pal He was the Duty Officer who
recorded FIR Ex. PW1/B on the
basis of rukka sent by PW-10 SI
Ajay Kumar through PW-16 Ct
Satish. He proved the FIR
Ex.PW1/B.
2 SI Dinesh Kumar He was the 2nd IO to whom
investigation was assigned, and had
FIR No.142/2012 State Vs. Anwari Begum @ Annu Page No. 18/51
Digitally
signed by
ARUL ARUL
Date:
VARMA
VARMA 2023.03.23
17:37:37 -
0300
received the FSL report in this case
and also prepared the chargesheet
against accused and filed it in Court.
3 HC Anand Kumar He was the informant in the case
(now ASI) and a part of the raiding team which
apprehended the accused and
effected recoveries of contraband
items from her on 30.04.2012.
4 Dr. Adesh Kumar He was the FSL expert, who proved
his report viz Ex.PW4/A whereby it
was opined that the seized item
contained inter alia
Diacetylmorphine.
5 HC Vasant Kumar He was the SO to ACP, who had
brought the summoned record of
Diary Register entry at SI No.3435
and proved compliance of Section 57
of NDPS Act.
6 Retired ACP Sh. Data He was posted as ACP, at PS New
Ram Friends Colony and proved receipt
of reports u/s 57 of NDPS Act viz
Ex.P-B.
7 ASI Wilson John He was the Reader to ACP and
FIR No.142/2012 State Vs. Anwari Begum @ Annu Page No. 19/51
Digitally
signed by
ARUL
ARUL VARMA
VARMA Date:
2023.03.23
17:37:46 -
0300
proved entries regarding receipt of
report u/s 57 NDPS Act pertaining to
recovery of contraband items from
the accused, and placing of the
report before the ACP ie Ex.P-B
8 Ct Devender Kumar On the instructions of the IO, he had
taken case property ie two sealed
pullandas, with the seal of AK and
SKIIIS vide RC.
9 Inspector Kuldeep He was the 1st IO of the case, who
Kumar
conducted investigation alongwith
other prosecution witnesses, leading to the arrest of the accused, and effected recoveries from her on 30.04.2012.
10 HC Roshni She was a part of the raiding team which apprehended the accused and effected recoveries of contraband item from her on 30.04.2012.
10 Inspector Ajay Kumar He was the complainant, who (Inadvertently also received secret information, and took listed as PW-10 necessary steps leading to arrest of during deposition the accused and effected recoveries FIR No.142/2012 State Vs. Anwari Begum @ Annu Page No. 20/51 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.03.23 17:37:57 -0300 dated 16.03.2023) from her on 30.04.2012.
11 ASI Satish He was the informant in the case and a part of the raiding team which apprehended the accused and effected recoveries of contraband items from her on 30.04.2012.
12 Inspector Sunil Kumar He was posted as SHO,PS H.N Din and received sealed articles, carbon copy of seizure memo and FSL form from PW10 SI Ajay Kumar on which he affixed his seal of SKIIIS deposited the same in the Malkhana after making entry in Registration no. 19 in compliance of Section 55 of the NDPS Act.
STATEMENT OF ACCUSED
19.Accused was examined u/s 313 Cr.PC. In his defence, she averred that witnesses have deposed falsely against her in order to prove the false case of the police and that they are interested witnesses. She deposed that she lives in Jhuggi No. 229 at Nizamuddin Area. She is a widow. Her neighbour namely Sarafat wanted to grab her jhuggi and in connivance of police officials, they implicated her in this false and fabricated case. FIR No.142/2012 State Vs. Anwari Begum @ Annu Page No. 21/51
Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.03.23 17:38:07 -0300 The above is the version of the accused recorded under Section 313 CrPC, to enable her to explain the circumstances appearing in evidence against her. The accused preferred not to lead any evidence in her defence.
ARGUMENTS OF LD. PUBLIC PROSECUTOR FOR THE STATE AND LD.
DEFENCE COUNSEL
20.Sh. Wasi-Ur-Rahman, Ld. Public Prosecutor for the State submitted that all the witnesses have supported the case of prosecution. It was submitted that as per the case of prosecution on the basis of secret information, received by the Beat Officer a DD No. 14A was recorded which is Ex.12/B and the said information was conveyed to senior . Moreover, as per the said DD, the SHO authorised SI Ajay Kumar PW-
10.
21. It was submitted that the Section of 42 of NDPS Act has been complied properly in this case. Although, there is no documentary proof of sending the DD No. 14 A to ACP but the information was conveyed telephonically to the ACP as deposed by the SHO Inspector Sunil Kumar, ie PW12. Ld. Addl PP for State further submitted that it is pertinent to mention here that the report u/s 57 NDPS Act ie Ex. PB was sent to ACP, it clearly reflects that the DD No.14 A would have been sent to him but somehow it is not reflected on record.
22. Ld. Addl PP for State also submitted that therefore, substantial FIR No.142/2012 State Vs. Anwari Begum @ Annu Page No. 22/51 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.03.23 17:38:17 -0300
compliance of Section 42 NDPS Act has been done as required.
Moreover, even non compliance of Section 42 NDPS Act may not vitiate the trial, if it does not cause prejudice to the accused. Ld. Addl PP for State placed reliance on Bahadur Singh Vs State of Haryana (2010) 4 SCC 445.
23. It was further submitted that the compliance of Section 50 NDPS Act has also been done and for this purpose the prosecution is relying upon the documents ie Original Notice u/s 50 NDPS Act which is Ex. PW9/D which was recovered from the possession of accused at the time of his arrest and the carbon copy of said notice Ex.PW3/C alongwith the reply of accused ie EX.PW3/D. In this regard, it was submitted that the document Ex.PW10/A has been inadvertently exhibited in the evidence of PW10 SI Ajay (now Inspector). The said document is liable to be ignored. It was also contended by Ld. Addl PP for State that the substance which was recovered from the possession of accused has been analyzed in the FSL and it was found to be Heroine.
24. The compliance of Section 55 NDPS Act has also been done by the SHO Sunil Kumar and apart from his testimony, it reflects from the relevant copy of Register no.19 which is Ex.PW12/A. All the relevant material prosecution witnesses have been examined and cumulatively they have proved the case of prosecution beyond reasonable doubt that 10.7 gram of smack was recovered from the possession of accused FIR No.142/2012 State Vs. Anwari Begum @ Annu Page No. 23/51 Digitally signed by ARUL ARUL Date:
VARMA VARMA 2023.03.23 17:38:27 -0300
which is punishable u/s 21 (b) of NDPS Act.
25. It was also submitted by Ld. Addl PP for State that after the prosecution evidence, the statement of accused has been recorded u/s 313 Cr.PC. In her statement, the accused nowhere explained as to why she has been arrested in this case. The accused also did not claim any prejudice for non compliance of any provision, if any,. It shows that there is no prejudice caused to the accused even in case the non compliance of some provision, although, the substantial compliance has been done of all the required provisions.
26. Lastly, Ld. Addl PP for State contended that there is no reason to discard the testimony of witnesses examined in this case. Furthermore, there is no defence taken by the accused, which can be considered at par with the prosecution evidence. Hence, the accused is liable to be held guilty for the offence she is charged with.
27.Per contra, Sh. M Nabi, Ld. Counsel for accused vehemently Ld. Counsel for accused submitted that there was total non compliance of Section 42 NDPS Act. It was further submitted that secret information, which was reduced in writing, was not shared with superior officers ie ACP. Ld. Counsel further submitted that there is no documents on record which would prove the factum of sharing of secret information with ACP. Ld counsel also contended that even if a telephonic call was made in this respect that also ought to be reduced in the form of writing FIR No.142/2012 State Vs. Anwari Begum @ Annu Page No. 24/51 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.03.23 17:38:37 -0300 thereafter.
28. Ld Counsel for the accused submitted that the prosecution version is suspect inasmuch as there is not one but two carbon copies of notice u/s 50 of NDPS Act alongwith the original notice of u/s 50 NDPS Act. Ld. Counsel for accused submitted that there is an original notice u/s 50 NDPS Act ie Ex. PW9/D alongwith carbon copy thereof ie Ex.PW3/C and PW13/A. It was further submitted that writing on the carbon copy ie PW13/A s different from the carbon copy Ex. PW13/A thereby leading to the inference that manipulation has been done and that there has been non compliance of Section 50 NDPS Act. Ld. Counsel for accused further contended that in Ex. PW 3/C, the FIR have been written belatedly thereby leading to the inference that it is a planted case.
29. Ld. Counsel for accused submitted that as per the chargesheet, as per the prosecution witnesses namely PW Ajit, PW- Anand and PW-
Roshni, 65 small packets (pudiyas) were recovered whereas the MHC(M) produced 160 pudiyas in Court. It was further submitted that those 160 pudiyas were also having brown colour mark on them, and thereby the stance of prosecution is not clear as to whether there was 60 pudiyas or 160 pudiyas.
30. It was further submitted that seizure memo is having FIR No.142/2012 which has been prepared by first IO before registration of the FIR, FIR No.142/2012 State Vs. Anwari Begum @ Annu Page No. 25/51 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.03.23 17:38:45 -0300
which clearly indicates that the FIR was registered before the preparation of notice u/s 50 of NDPS Act as well as the seizure memo.
It was further submitted that the alleged recovery was effected on dated 30.04.2012 as per receipt issued by FSL, the date is 29.05.3012. as per standing order 1/88 issued by NCB the sample should be sent to FSL within 72 hours from the alleged recovery of contraband. Thus, there is delay of about 30 days in sending sample to FSL, hence tampering in the sample cannot be ruled out and this is fatal to the case of prosecution. It was further submitted that as per DD no. 44 some unknown person gave information on phone about recovery of smack but in their cross-examination PW Satish and PW-Anand stated that while they were on patrolling duty, one secret informer came and told that smack can be recovered from the accused and they conveyed this information to the Duty Officer. Thus, there is clear contradiction with regard to the information regarding recovery of smack. Ld. Counsel for accused placed reliance on following judgments;
1. Laxman Thakur Vs State ( Govt of NCT of Delhi) Bail Appln 3233/2022
2. Boota Singh & Others V State of Haryana (2021) 4 S.C.R 180
3. Didar Singh @ Dara Vs State of Punjab 2010 3 RCR (Crl) 337
4. Rishi Dev @ Onkar Singh Vs State (Delhi Admn) CRL.A.No 757 of 2000
5. Khazan Singh Vs State of Haryana (2008) 2 PLR 615
6. Sumit Tomar Vs State of Punjab (2013) 1 SCC 395
7. Charlse Howell @ Abel Kom Vs NCB CRL.A 77/2016
31. Ld Counsel for accused thus submitted that the accused ought to be FIR No.142/2012 State Vs. Anwari Begum @ Annu Page No. 26/51 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.03.23 17:38:55 -0300
exonerated.
STATEMENT OF REASONS FOR THE DECISION A. APPREHENSION OF ACCUSED AND RECOVERY OF ALLEGED CONTRABAND FROM HIM
32.The manner in which the accused was apprehended and the manner in which recoveries have been effected from him has been clearly elucidated by the prosecution witnesses. It was brought to the fore that PW-3 HC Anand Kumar and PW-11 ASI Satish were on patrolling duty when a secret informer informed them on 30.04.2012, at about 3:30 PM that one lady was selling smack near the wall of the Community Centre, Nizamuddin Basti, Delhi. Both of them conveyed this information to the Duty Officer at police Station H.N Din whereafter PW-10 Inspector Ajay Kumar was deputed to investigate the matter. As is apparent from the testimony of PW-3 Hc Anand Kumar, PW-11 ASI Satish and PW-10 Inspector Ajay Kumar, PW-10 formed a raiding party, and as his instance PW-10 HC Roshni apprehended the accused Anwari Begum. Thereafter, PW-10 Inspector Ajay Kumar gave a notice u/s 50 NDPS Act to the accused. The police witnesses further deposed that PW-9 Inspector Kuldeep Kumar arrested the accused vide Ex.PW9/A and prepared the personal search memo Ex.PW9/B. PW-9 proved the abovesaid documents in court by identifying the signatures thereon at point A on both the documents.
FIR No.142/2012 State Vs. Anwari Begum @ Annu Page No. 27/51
Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.03.23 17:39:06 -0300 B. RECORDING OF SECRET INFORMATION, COMPLIANCE OF SECTION 42 NDPS ACT
33.Ld. Counsel for accused submitted that there was total non compliance of Section 42 NDPS Act. It was further submitted that secret information, which was reduced in writing, was not shared with superior officers ie ACP. Ld. Counsel further submitted that there were no documents on record which would prove the factum of sharing of secret information with ACP. Ld counsel also contended that even if a telephonic call was made in this respect, that also ought to have been reduced in the form of writing thereafter. To substantiate his claim Ld. Counsel placed reliance on Boota Singh(supra), wherein the Court observed as thus:
10 In Karnail Singh1, the Constitution Bench of this Court concluded:--
11. In conclusion, what is to be noticed is that Abdul Rashid [(2000) 2 SCC 513 : 2000 SCC (Cri) 496] did not require literal compliance with the requirements of Sections 42(1) and 42(2) nor did Sajan Abraham [(2001) 6 SCC 692 : 2001 SCC (Cri) 1217] hold that the requirements of Sections 42(1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as follows:
(a).................
(b) But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.
(c) In other words, the compliance with the requirements of Sections 42(1) and 42(2) in regard to writing down FIR No.142/2012 State Vs. Anwari Begum @ Annu Page No. 28/51 Digitally signed by ARUL ARUL VARMA Date:
VARMA 2023.03.23 17:39:20 -0300
the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is, after the search, entry and seizure. The question is one of urgency and expediency.
34.Per contra, Ld Addl PP for State submitted that there has been substantial compliance of Section 42 of NDPS Act. It was submitted that PW-12 Inspector Sunil Kumar had categorically deposed that he had conveyed the secret information reduced in writing ie DD no. 14 A to ACP telephonically. It was further submitted that the accused has not shown as to what prejudice has been caused to her for non compliance of Section 42 NDPS Act. Ld. Addl PP for State further submitted that the factum of compliance of 57 NDPS Act established by the prosecution, also shows that there was compliance of Section 42 NDPS Act inasmuch as there can be no compliance of Section 57 of NDPS Act unless and until there is compliance of Section 42 NDPS Act. To substantiate his submissions Ld. Addl PP for State place reliance on the following extracts of Bahadur Singh (supra) wherein it was held as thus:
"18. In the instant case, as soon as the investigating officer reached the spot, he sent a wireless message to the Deputy Superintendent of Police, Kurukshetra, who was his immediate higher officer and subsequent to recovery of the contraband, a ruqa containing all the facts and circumstances of the case was also sent to the police station from the spot from where the recovery was made on the basis whereof the first information report was registered and copies thereof were sent to the Ilaqa Magistrate and also to the higher police FIR No.142/2012 State Vs. Anwari Begum @ Annu Page No. 29/51 Digitally signed by ARUL ARUL VARMA Date:
VARMA 2023.03.23
17:39:30 -
0300
officers. As was held by the High Court, there was, therefore, substantial compliance with the provisions of Section 42 of the NDPS Act and no prejudice was shown to have been caused to the accused on account of non-reduction of secret information into writing and non-sending of the same to the higher officer immediately thereafter.
19. Apart from the decision in Sajan Abraham case [(2001) 6 SCC 692 : 2001 SCC (Cri) 1217] , the decision of the Constitution Bench in Karnail Singh case [(2009) 8 SCC 539 :
(2009) 3 SCC (Cri) 887] , has also made it clear that non-
compliance with the provisions of Section 42 may not vitiate the trial if it did not cause any prejudice to the accused. Furthermore, whether there is adequate compliance with Section 42 or not is a question of fact to be decided in each case."
35. Ld. Addl PP for State further contended that Ld. Counsel for accused has made a wrong submission that Section 42 has not been complied with, as DD No. 14 A ie Ex.PW12/B demonstrates that the secret information was reduced in writing.
36.Thus, the foremost defence of the accused is that there was non compliance of mandatory provisions viz. Section 42 of the NDPS Act. However, it is of utmost significance to note that the case of the prosecution is that recovery of heroine was made from the accused near wall of community centre in the area of DDA Park, Nizamuddin Basti. Thus, this is a case where recovery has been made at a public place and not from any building, conveyance or enclosed place. Therefore, Section 43 of the NDPS Act would be attracted in the facts and circumstances of the present case, and not Section 41 or 42 of the Act. In this context, it would be useful to refer to Mohan Lal V State of Rajasthan (2015) 6 FIR No.142/2012 State Vs. Anwari Begum @ Annu Page No. 30/51 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.03.23 17:39:39 -0300 SCC 222 wherein it was held as thus:
"32 In the present case, the High Court has noted that the information was given to the competent authority. That apart, the High Court has further opined that in the case at hand Section 43 applies. Section 43 of the NDPS Act contemplates seizure made in the public place. There is a distinction between Section 42 and Section 43 of the NDPS Act. If a search is made in a public place, the officer taking the search is not required to comply with sub-sections (1) and (2) of Section 42 of the NDPS Act. As has been stated earlier, the seizure has taken place beneath a bridge of public road accessible to the public. The officer, Sub-Inspector is an empowered officer under Section 42 of the Act. As the place is a public place and Section 43 comes into play, the question of non-compliance with Section 42(2) does not arise."
37. Even the Constitutional Bench judgment of Karnail Singh Vs. State of Haryana (2009) 8 SCC 539, it was laid down as thus:
"26 The material differences between the provisions of Section 42 and 43 of the NDPS Act is that Section 42 requires recording of reasons for belief and for taking down of information received in writing with regard to the commission of an offence before conducting search and seizure, Section 43 does not contain any such provision and as such while acting under Section 43 of the Act, the empowered officer has the power of seizure of article, etc. and arrest of a person who is found to be in possession of any narcotic drug or psychotropic substance in a public place where such possession appears to him to be unlawful."
38.Thus, the contention of Ld Counsel for the accused cannot be countenanced on this score alone. However, arguendo if it is considered that provisions of Section 42 are applicable, even then the conditions thereof have been duly complied with.
39. The secret information was reduced in writing in the form of DD no. 14A dated 30.04.2012 ie Ex PW12/B. Thus, the requirement of Section FIR No.142/2012 State Vs. Anwari Begum @ Annu Page No. 31/51 Digitally signed by ARUL ARUL VARMA Date:
VARMA 2023.03.23 17:40:01 -0300
41 (2) stood satisfied. Further, a perusal of the testimony of PW-12 Inspector Sunil Kumar is relevant in this regard.
"Q:Did you convey the information regarding DD No. 14-A Ex. PW12/B to the ACP and whether you had sent the copy of DD No. 14-A to the ACP at any point of time in compliance of Section 42 NDPS Act? A:I telephonically conveyed the information to ACP but copy of DD No. 14-A was not sent.
Q:Can you point out anywhere in the record that you had conveyed the information to ACP telephonically? A:This fact is not reflected in the record. Vol. If the information is not conveyed to the ACP telephonically, he will not accept the report of compliance of Section 57 NDPS Act.
40. The above makes it explicit that there was compliance of the relevant provisions of law inasmuch as the ACP was informed telephonically. Reliance in this regard can be had to Bahadur Singh (supra) where information sent via wireless was held to be substantial compliance of Section 42 of NDPS Act.
C. COMPLIANCE OF SECTION 55 OF THE NDPS ACT BY THE SHO
41.At this juncture, it would be apt to refer to Section 55 of the NDPS Act:
"SECTION 55. Police to take charge of articles seized and delivered.- An officer-in -charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in-charge of the police station."
42. In the present case,Inspector Sunil Kumar Officer In charge of PS H.N Din was examined as PW-12. He categorically deposed that on FIR No.142/2012 State Vs. Anwari Begum @ Annu Page No. 32/51 Digitally signed by ARUL ARUL Date:
VARMA VARMA 2023.03.23 17:40:11 -0300
30.04.2012, at about 06:15 PM, PW-10 SI Ajay Kumar handed over to him on the spot three sealed parcels mark S1, S2 and S3 bearing the seal of AK alongwith copy of seizure memo and FSL form, whereupon he affixed his counter seal of SKIIIS. Thereafter, this witness proved the factum of deposit of the parcels with the MHC(M) in the Malkhana vide entry in Register no. 19 Ex. PW 12/A. Ld. Counsel for the accused sought to discredit this witness by highlighting the fact that the signature of this witness was not on the photocopy of the abovesaid Register no. 19. However, this objection cannot be sustained inasmuch as mere absence of signature on the Malkhana Register would be insufficient to jettison the case of the prosecution. A perusal of the register categorically indicates the name of PW-12 Inspector Sunil Sharma on 30.04.2012. Further, PW-8 also deposed that on the instructions of IO, he had taken the case property from the MHC(M) in two sealed pullandas and had deposited the sealed pullandas in FSL, Rohini on the same day in intact condition, thus ruling out any tampering.
43. Thus, as is evident from the above deposition, the prosecution evidence clearly discloses that the seized articles were produced before officer in charge of the Police Station, that he had put his seal over those articles and thereafter they were sent for safe custody. The evidence also discloses that the seized articles were kept in the Malkhana and even FIR No.142/2012 State Vs. Anwari Begum @ Annu Page No. 33/51 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.03.23 17:40:21 -0300
while they were taken out for the Chemical analysis, they were properly sealed. Thus, there is due compliance of Section 55 NDPS Act in terms of Ashok Kumar Vs. State of Haryana AIR 2000 SC 3474.
D. REPORT UNDER SECTION 57 OF NDPS ACT
44.It would be apposite to refer to Section 57 of the Act, which is reproduced hereunder:
"Whenever any person makes any arrest or seizure, under this Act, he shall, within forty eight hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior."
45.The legislative intent behind Section 57 of the Act, has been delved upon in Megha Ram v State of Rajasthan 1997 Cri LJ 3091 in the following words:
"Section 57 comes into play in the post-arrest period. It enjoins upon the officer, arresting an accused and effecting recovery of a narcotic drug or psychotropic substance from his possession, to inform his superior officers of the actions taken by him. Compliance of this provision is meant to serve a dual purpose. On the one hand it affords an element of authenticity to the action taken by him in the cause of preventing commission of offences against the NDPS Act. The consciousness of compliance of this section puts, in a sense, a sort of check on the arbitrary exercise of his powers of arrest and seizure by him under the Act and creates a sense of responsibility in him to act in accordance with relevant provisions of law so as not to be undermined in the estimation of his superior officers with regard to the discharge of his duties as a responsible officer. On the other hand the communication of the information apprises the superior officers of the position of offences against the NDPS Act and also of the steps taken and compliance of the relevant rules made by their subordinates in the administration of the said Act. If the officer has acted as a vigilant and duty conscious officer in the pre-arrest-stage of the proceedings and his FIR No.142/2012 State Vs. Anwari Begum @ Annu Page No. 34/51 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.03.23 17:40:31 -0300 evidence discloses satisfactory compliance of the mandatory provisions relating to that stage of proceedings and inspires confidence in Court, non- compliance or compliance with some irregularity of certain provisions relating to post-arrest period would not be fatal to the prosecution case as that would be a case of an offence already committed and concluded. The purpose of compliance of S. 57 is to afford further reliability to the action already taken by the subordinate, officer. In that sense of the matter compliance of S. 57 is not mandatory but for that reason its importance in the scheme of the Act cannot be minimised (see State of Punjab v. Balbir Singh)"
46.PW- 9 Inspector Kuldeep Kumar had deposed that he had prepared the report u/s 57 NDPS Act regarding arrest of accused and other proceedings. He proved the report as Ex.P-B bearing his signatures at point B. This witness had deposed that the Ex.P-B was sent to ACP through the SHO.
47. Further, PW-12 Inspector Sunil Kumar, the SHO acknowledged the receipt of information/report u/s 57 NDPS Act from PW-9 SI Kuldeep Kumar. He deposed that on 01.05.2014, the 2nd IO SI Kuldeep Kumar had prepared report u/s 57 NDPS Act viz Ex. P-B, and PW-12 Inspector Sunil Kumar forwarded the said report to the ACP concerned after endorsing his signatures at point X. Thus, both the above witnesses proved the factum sending of report u/s 57 NDPS Act to their immediate superior.
48. The receipt of the above report in the office of ACP concerned, was proved by three witnesses namely PW-5 HC Vasant Kumar, SO to ACP, PW-7 ASI Wilson John, who was the Reader to the ACP and PW- FIR No.142/2012 State Vs. Anwari Begum @ Annu Page No. 35/51
Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.03.23 17:40:39 -0300 6 the ACP himself ie Sh. Data Ram. The SO deposed that the special report u/s 57 NDPS Act, sent by SI Kuldeep Kumar and duly forwarded by the SHO PS H.N Din was received by then Reader to ACP namely HC Wilson John. In this regard, the witness brought the record of Diary register having relevant entry at SI No 3435,and proved the same as Ex.
P-A. To corroborate his version, the prosecution examined the Reader to the ACP ASI Wilson John as PW-7. He categorically deposed that on 01.05.2012, when he was working as Reader to ACP, NFC, the special report u/s 57 of NDPS Act was received by him, and which he further put up before the ACP Sh. Data Ram, who perused the same and put his endorsement and signatures at portion A. This witness further proved the entry in this regard in the Dak register ie Diary no 3435 dated 01.05.2012 viz Ex. P-A. Both these witnesses denied that the entries were ante dated or ante time to establish the case of prosecution.
49. Significantly, the prosecution examined the ACP as PW-6. PW-6 Sh.Data Ram categorically deposed that on 01.05.2012, he was posted as ACP, PS NFC and the special report u/s 57 NDPS Act was put up before him by his Reader HC Wilson John. He proved the report u/s 57 NDPS Act as Ex.P-B and deposed that he put his endorsement as seen and signatures at portion A encircled with red ink on the said document after perusing the same on the same day. Thus, there was in toto compliance of Section 57 NDPS Act.
FIR No.142/2012 State Vs. Anwari Begum @ Annu Page No. 36/51
Digitally signed by ARUL ARUL Date:
VARMA VARMA 2023.03.23 17:40:48 -0300
E. COMPLIANCE OF SECTION 50 NDPS ACT
50.Ld Counsel for the accused submitted that the prosecution version is suspect inasmuch as there is not one but two carbon copies of notice u/s 50 of NDPS Act alongwith the original notice of u/s 50 NDPS Act. Ld. Counsel for accused submitted that there is an original notice u/s 50 NDPS Act ie Ex. PW9/D alongwith two carbon copies thereof ie Ex.PW3/C and PW10/A. It was further submitted that writing on the carbon copy ie PW10/A is different from the carbon copy Ex. PW3/C thereby leading to the inference that manipulation has been done and that there has been non compliance of Section 50 NDPS Act. Ld. Counsel for accused further contended that in Ex.PW 3/C, the FIR No and year has been written belatedly thereby leading to an inference that a false case has been foisted upon accused.
51.Per contra, Ld. Addl PP for State contended that State is not relying on Ex.PW10/A as there is sufficient evidence on record regarding compliance of Section 50 NDPS Act in the form of original notice u/s 50 of NDPS Act ie Ex.PW9/D and carbon copy thereof ie Ex.PW3/C. It was further contended that a careful perusal of Ex.PW3/C would reveal that FIR No. has been endorsed there on in pen ie after preparation of the carbon copy, indicating that the FIR was written after the notice was served.
52.During the course of arguments, Ld. Counsel for accused vehemently FIR No.142/2012 State Vs. Anwari Begum @ Annu Page No. 37/51 Digitally signed by ARUL ARUL VARMA Date:
VARMA 2023.03.23 17:40:56 -0300
placed reliance on Ex.PW10/A and submitted that the FIR was written thereon at the time of preparing the notice. Ld. Counsel placed reliance on Didar Singh (supra) to contend that in such cases, benefit of doubt must enure in favour of accused.
53.To adjudicate this issue, it would be profitable to refer to Section 50 of the Act, which reads as thus:
"Section 50: Conditions under which search of persons shall be conducted:
(1)When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate (2)If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1)"
54.The safeguards mentioned in Section 50 are intended to serve a dual purpose- to protect a person against false accusation and frivolous charges as also to lend credibility to the search and seizure conducted by an empowered officer.
55.At this juncture,to put to rest the issue of endorsing FIR Number on the spot memos it would be apt to peruse the following extracts of Ramesh Kumar Rajput Vs State (NCT of Delhi) 2008 SCC Online Del 1658 wherein it was observed as thus:
"15. It is sought to be contended that the notices in terms of Section 50 were manipulated since they contained the FIR number. It is submitted that the rukkas having been prepared at 9.30 pm and sent thereafter with ASI Hari Ram for FIR No.142/2012 State Vs. Anwari Begum @ Annu Page No. 38/51 Digitally signed by ARUL ARUL VARMA Date:
VARMA 2023.03.23
17:41:05 -
0300
registering, the FIR number could not have been available at 6.30 pm, that the admissions by the witnesses that the documents were prepared from point A to A which did precede the FIR No. in the presence of PW-15 falsify the case of the prosecution that these documents were written up at the spot at 6.30 pm. It was contended that these interpolations in the documents vitiated the entire recovery and that the trial court erred in holding that the compliance with Section 50 was not mandatory. In the first place it requires to be noticed that the recovery was not from the person of the accused but from a bag being carried by him. In a large number of cases the Supreme Court has held that the 'bag' does not come within the definition of 'person' as contemplated under Section 50 NDPS Act. The compliance in substance and not in form has been insisted upon by the Supreme Court in Krishna Kanwar v. State of Rajasthan 2004 (2) SCC 608 and Prabha Shankar Dubey v. State of M.P. 2004 (2) SCC 56. Further in State of Himachal Pradesh v. Pawan Kumar 2005 (4) SCC 350 the Supreme Court has held that Section 50 would not apply when the recovery is from a bag and not from a person.
16. In any event the law as explained by the Supreme Court is that the mere writing of the FIR number on the arrest and search memos cannot entirely falsify those documents. Significant among the decisions is Radhey Shyam v. State of Haryana JT 2001 (3) SC 535. Also, there is merit in the contention of the Respondent that there was no specific question put to the officers concerned in their cross- examination. What the counsel for the accused appears to have been done is to ask the witness whether the portion of the document from "point A to A" (which included the portion containing the FIR number) was written at the same time. This might be intelligent cross examination but if the defence wants to prove that the FIR number was in fact written at a later point in time the witness ought to have been asked that question. The failure to elicit any answer from the witnesses on this point can only indicate that the defence may have been inconvenienced by the possible answer that might have been given by the witness or that the witness may have explained that the writing of the FIR number was only for cross verification of the details and therefore the FIR number was written at a subsequent point in time."
56. In Bilal Ahmed Vs State 2011 SCC Online Del 165, the Court laid down as thus:
"16. As regards mentioning of the FIR number on the seizure FIR No.142/2012 State Vs. Anwari Begum @ Annu Page No. 39/51 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.03.23 17:41:14 -0300 memo is concerned, the witnesses Inspector Jeewan Singh PW3, HC Baljeet Singh PW5 have clarified in their cross- examinations that when the seizure memos were prepared, the FIR number was not mentioned. PW7, SI Rakesh Kumar has clarified that FIR number was added on the seizure memo after the FIR was registered. Subsequent adding of FIR number on the document for procedural convenience would not amount to tempering of the document. This Court in Ramesh Kumar Rajput v. State MANU/DE/0786/2008 relying on Radhey Shyam v. State of Haryana 2001 (10) SCC 206, held that mere writing of the FIR number on the arrest and search memos cannot entirely falsify these documents."
57.During the course of arguments,Ld. Addl PP fort State had contended that the State was placing reliance primarily on original notice u/s 50 NDPS Act Ex.PW9/D and its carbon copy Ex.PW3/C. A perusal of testimony of PW-10 Hc Roshni would reveal that Pw-3/C bore her signatures at point B and the reply of the accused was Ex.PW3/D wherein she refused to avail her legal rights. PW-10 Inspector Ajay Kumar also deposed that the accused was apprised about her legal rights that her search could be taken in the presence of a Gazetted Officer of a Magistrate, if she so desired. However, she refused to avail her legal rights. No questions were asked to the police witnesses with respect to non service of notice u/s 50 NDPS Act barring a suggestion that it was not served. Thus, it cannot be gainsaid that there was compliance of Section 50 NDPS Act.
F. SAMPLING PROCEDURE
58. Ld. Counsel for accused submitted that as per the chargesheet, as per the prosecution witnesses namely PW Ajit, PW Anand and PW Roshni, 65 FIR No.142/2012 State Vs. Anwari Begum @ Annu Page No. 40/51 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.03.23 17:41:23 -0300 small packets (pudiyas) were recovered whereas the MHC(M) produced 160 pudiyas in Court. It was further submitted that those 160 pudiyas were also having brown colour mark on them, and thereby the stance of prosecution is not clear as to whether there was 60 pudiyas or 160 pudiyas.
59.Ld. Addl PP for State vociferously refuted these assertions and had contended that it has no where come on record that 160 pudiya/small packets were having brown colour mark on them. Further, Ld. Addl PP for State explained that the presence of these 160 pudiays packets has been clarified to the affect that they were not packets but slips of paper
60. The contentions of Ld. Counsel for accused are totally off the record. There is nothing on record to substantiate the claim that there were 160 pudiyas having brown colour mark on them. In this regard, it would be pertinent to peruse the testimony of PW-10 Inspector Ajay Kumar, who deposed as thus.
"The accused was also apprised about her legal right that her search could be taken in the presence of a Gazetted officer of a Magistrate, if she so desire. She refused to avail her legal rights and she produced some paper slips and told that she was having nothing except these slips. I took over the said paper slips."
61. PW-10 Inspector Ajay Kumar further deposed that:
"Out of the said substance, I drew sample of 2 gram smack and kept it in a paper which was converted into parcel. The remaining smack also converted into a parcel. The 65 pudiya papers alongwith empty pieces of paper which were earlier given by accused were kept in a separate FIR No.142/2012 State Vs. Anwari Begum @ Annu Page No. 41/51 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.03.23 17:41:33 -0300 parcel. The said paper slips were 160 intoto. All three parcels were marked S1, S2 and S3."
62. Next, Ld. Counsel for accused submitted that the alleged recovery was effected on 30.04.2012 whereas as per receipt issued by FSL, the date is 29.05.2012. It was contended that as per standing order 1/88 issued by NCB the sample should have been sent to FSL within 72 hours from the alleged recovery of contraband. Thus, there is delay of about 30 days in sending sample to FSL, hence tampering in the sample cannot be ruled out and this is fatal to the case of prosecution.
63. Per contra Ld. Addl PP for State submitted that these guidelines are not mandatory and are not applicable to Delhi Police.
64. Qua the above submissions of Ld. Counsel for the accused, it is trite that delay in sending samples to the FSL would not be fatal to the case of the prosecution.
65. In this context, it would be prudent to refer to the following extracts of Jarnail Singh v. State of Punjab (2011) 3 SCC 521.
"22. Mr Ujjal Singh then submitted that there was a delay of twelve days in sending the sample of narcotic for chemical examination. This submission, in our opinion, is without any factual basis. The trial court as well as the High Court, on examination of the entire material, concluded that there was sufficient independent evidence produced by the prosecution regarding the completion of link evidence. Therefore, the delay in sending the sample parcel to the office of the chemical examiner pales into insignificance. We are of the considered opinion that mere delay in sending the sample of the narcotic to the office of the chemical examiner would not be sufficient to conclude that the sample has been tampered with.FIR No.142/2012 State Vs. Anwari Begum @ Annu Page No. 42/51
Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.03.23 17:41:43 -0300 There is sufficient evidence to indicate that the delay, if any, was wholly unintentional
23.This Court had occasion to deal with a similar issue, in Balbir Kaur v. State of Punjab [(2009) 15 SCC 795 :
(2010) 3 SCC (Cri) 997] . The Court made the following observations: (SCC p. 803, para 24) "24. As far as delay in sending the samples is concerned, we find the said contention untenable in law. Reference in this regard may be made to the decision of this Court in Hardip Singh case [Hardip Singh v. State of Punjab, (2008) 8 SCC 557 : (2008) 3 SCC (Cri) 580] wherein there was a gap of 40 days between seizure and sending the sample to the chemical examiner. Despite the said fact the court held that in view of cogent evidence that opium was seized from the appellant and the seals put on the sample were intact till it was handed over to the chemical examiner, delay itself is not fatal to the prosecution case."
66.In view of the above verdict, the objections of Ld Counsel for the accused qua delay in sending samples, cannot be countenanced inasmuch as there is cogent evidence already on record pointing out to recovery and seizure of contraband from the accused.
67. Lastly, Ld. Counsel for accused submitted that all the contraband items in the pudiyas were mixed, and from them the sample was drawn. Thus, Ld. Counsel submitted that this was in total violation of law laid down in Laxman Thakur (supra) wherein it has been mentioned that the sample should have been taken from each packet. It was further submitted that in the examination in chief of PW-10 Inspector Ajay Kumar, it has been elicited that he did not carry field testing kit and nor was sample taken from each packets. Thus, it was submitted that the alleged recovery is doubtful.
FIR No.142/2012 State Vs. Anwari Begum @ Annu Page No. 43/51
Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.03.23 17:41:52 -0300
68. Per contra, Ld. Addl PP for State further submitted that 65 small packets were recovered from the possession of accused which were less than 01 gram each. Ld. Addl PP for State highlighted the fact that total weight of entire substance was 10.7 gram and therefore it would be well nigh impossible to take out samples from each pudiya, which would be containing about 0.16 grams. It was further submitted that all the pudiyas were mixed because similar substance was found in each of the pudiyas.
69. In this regard, it would be apt to peruse the following principles laid down in Charlse Howel (supra) "7.4 The aforementioned Standing Order purports to have been issued under Section 52A of the Act. On the issue of whether the Standing Order is binding, or not, the Supreme Court held, in Khet Singh v. U.O.I., (2002) 4 SCC 380, thus (in para 10 of the report):
"The instructions issued by the Narcotics Control Bureau, New Delhi are to be followed by the officer-in-charge of the investigation of the crimes coming within the purview of the NDPS Act, even though these instructions do not have the force of law. They are intended to guide the officers and to see that a fair procedure is adopted by the officer-in-charge of the investigation."
In the same decision, the Supreme Court, examining the issue of the consequence of violation of such procedural guidelines, ruled as under (in para 16 of the report):
"Law on the point is very clear that even if there is any sort of procedural illegality in conducting the search and seizure, the evidence collected thereby will not become inadmissible and the court would consider all the circumstances and find out whether any serious prejudice had been caused to the accused. If the search and seizure was in complete defiance of the law and procedure and there was any possibility of the evidence collected likely to have been tampered with or interpolated during the FIR No.142/2012 State Vs. Anwari Begum @ Annu Page No. 44/51 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.03.23 17:42:01 -0300
course of such search or seizure, then, it could be said that the evidence is not liable to be admissible in evidence."
7.5 The following principles may be culled out, from this pronouncement:
(i) Instructions issued by the NCB are to be followed by the officers, though they do not have the force of law.
(ii) Such instructions are meant to operate as guidelines, to ensure fairness.
(iii) Non-compliance with the stipulations contained in such guidelines would not render the evidence, collected thereby, inadmissible.
(iv) In such cases, the court would examine all the circumstances, in order to ascertain whether any prejudice had resulted, to the accused, or not.
(v) If, however,
(a) the search and seizure was in complete defiance of the law and procedure, or
(b) there was possibility of the evidence having been tampered with, or interpolated during the course of search and seizure, then the evidence would be rendered inadmissible."
70.In the present case, Ld. Counsel for the accused has not been able to establish that any serious prejudice has been caused to the accused by mixing of the samples. Further, this court concurs with the submissions of Ld. Addl PP for State that it would be well nigh impossible to take samples from each and every pudiya as the contraband item contained therein was about 0.16 grams. Moreover, it has been laid down in Sumit Tomar (supra) "11 The next contention, according to the learned Senior Counsel for the appellant, is that the prosecution has committed an irregularity by mixing up the contraband found in the bags and taking samples thereafter. We find no substance in the said FIR No.142/2012 State Vs. Anwari Begum @ Annu Page No. 45/51 Digitally signed by ARUL ARUL VARMA Date:
VARMA 2023.03.23 17:42:11 -0300
argument. The present appellant was driving the car in which two bags of contraband were loaded. He further pointed out that in view of Section 15(c) of the NDPS Act, which prescribes minimum sentence of 10 years and which may extend to 20 years where the contravention involves commercial quantity, the mixing of two bags is a grave irregularity which affects the interest of the appellant. We are unable to accept the said contention.
12. It is true that Section 15 of the NDPS Act speaks about punishment for contravention in relation to poppy straw. As per sub-section (a) where the contravention involves small quantity, the rigorous imprisonment may extend to six months or with fine which may extend to ten thousand rupees or with both whereas under sub- section (b) where the contravention involves quantity lesser than commercial quantity but greater than small quantity, rigorous imprisonment may extend to 10 years and with fine which may extend to one lakh rupees. Sub-section (c) provides that where the contravention involves commercial quantity, the rigorous imprisonment shall not be less than 10 years but which may extend to 20 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. Merely because different punishments have been prescribed depending on the quantity of contraband, we are satisfied that by mixing the said two bags, the same has not caused any prejudice to the appellant. Even after taking two samples of 250 gm each, the quantity measured comes to 69.50 kg which is more than commercial quantity (small quantity 1000 gm/commercial quantity 50 kg and above). In view of the same, the contention that the police should have taken two samples each from the two bags without mixing is liable to be rejected.
G. DEPOSIT OF EXHIBITS IN FSL FOR FORENSIC EXAMINATION AND FSL REPORT.
71.The sanctity of chain of custody qua deposit of exhibits in FSL from the Malkhana, was also duly proved by the prosecution. PW-8 Ct Devender Kumar, on the instructions of the IO had taken the case property from MHC(M) ie two sealed pullandas with the seal of AK and SKIIIS vide FIR No.142/2012 State Vs. Anwari Begum @ Annu Page No. 46/51 Digitally signed by ARUL ARUL VARMA Date:
VARMA 2023.03.23 17:42:20 -0300
RC whose number could not be recollected by the witness. The witness further deposited the pullanda in FSL Rohini the above items. He further deposed that the property was deposited in an intact condition.
72.The testimony of the above witness finds corroboration from a perusal of the deposition of PW-4 Sh Adesh Kumar, who deposed that two cloth parcels out of which one parcel S1 was duly sealed with two seals of AK and two seals of SKIIIS, and other parcel number S3 was sealed with four seals of AK and four seal of SKIIIS were received in their office on 29.05.2012 through Ct Devender Kumar alongwith original forwarding letter. The witness deposed that the above exhibits and documents were received in their office vide case acceptance memo and the said original memo was taken on record as Ex. P-B. A perusal of the said case acceptance memo Ex.P-B reveals that the name of PW- 8 Ct Devender Kumar as the name of authorised messenger.
73.The FSL report Ex. PW4/A was proved by Sh Adesh Kumar, Senior Scientific Officer, Chemistry, FSL Rohini, who deposed to the effect of receiving the case property alongwith original forwarding letter. This witness categorically deposed that he had examined the above exhibits from 08.06.2012 to 18.06.2012. He averred that upon opening of parcel S1, it was found containing orange brown coloured powdery substance weighing approximately 4.139 grams. He further unequivocally deposed as thus:
FIR No.142/2012 State Vs. Anwari Begum @ Annu Page No. 47/51
Digitally signed by ARUL ARUL VARMA Date:
VARMA 2023.03.23
17:42:29 -
0300
"In the present case two sealed cloth parcels out of which one parcel no. S1 was duly sealed with two seals of AK and two seals of SKIIIS and the other parcel No. S-3 was sealed with four seals of AK and four seals of SKIIIS were received in our office on 29.05.2012 through Ct. Devender alongwith original forwarding letter. The copy of forwarding letter is taken on record which is Ex.PA (OSR). The seals on the exhibit were intact and tallied with the forwarding letter. Alongwith the forwarding letter, Carbon copy of RC No. 51/21/12, photocopy of DD No. 14A, copy of FIR, copy of rukka, copy of seizure memo of smack were also received. The above exhibits and documents were received in out office vide case acceptance memo. I have brought the said original memo of the same is taken on record as Ex.PB (copies of Ex.PA & PB are supplied to Ld. Defence Counsel). I examined the above exhibits from 08.06.2012 to 18.06.2012. On opening, the parcel S-1 it was found containing orange brown coloured powdery substance weighing approximately 4.139 gram with paper and parcel S-3 was found containing 160 pieces of square shaped white plain paper and one polythene having some orange brown deposits. On Chemical TLC & GC & GC-MS examination, (I) Exhibits 'S-1' and 'S-
3' positive test for the presence of Diacetylmorphine, 6- Monoacetylmorphine, Caffeine, Alprazolam, Phenobarbitone and Paracetamol. (ii) Exhibit 'S-1' was found to contain Diacetylmorphine 3.5%, Caffeine 19.8%, Alprazolam 18.7%, Phenobarbitone 0.6% and Paracetamol 52.5%."
74. Thus, this witness proved that the contraband item was heroine. Nothing could be elicited to dispute his competence or expertise. This witness had brought to the fore that he possessed an experience of about 23 years and had examined more than 10,000 exhibits of chemistry and deposed in various courts of law as an expert witness. Merely because he could not depose qua the factum of weight of the paper separately, his testimony qua the factum of contraband items being heroine, cannot be discarded.
75.Thus, the factum of contraband item being heroine, was cogently FIR No.142/2012 State Vs. Anwari Begum @ Annu Page No. 48/51 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.03.23 17:42:39 -0300
established by the prosecution.
H. FAILURE TO EXPLAIN CIRCUMSTANCES APPEARING AGAINST THE ACCUSED
76.It was contended by the State that the accused did not avail the opportunity to explain the circumstances appearing in the evidence against her, and only put forth a mere bare denial or replied to the accusations by merely stating that 'it is incorrect'. She could not explain recovery of contraband items from her. The accused did not even put forth a plea of alibi. She only averred that her neighbour namely Sarafat wanted to grab her jhuggi and implicated her in this case in connivance of the police officials.
77. There is a presumption u/s 54 of the NDPS Act which lays down that in trials under the NDPS Act, it may be presumed that the accused has committed an offence, unless and until the contrary is proved. The expression' unless and until the contrary is proved', clearly imposes the burden of proving that possession of prohibited substance is legal, or that she was not so found in possession, is on the accused herself. In this case, neither the presumption could be rebutted, nor could the accused explain the circumstances appearing in evidence against her.
78. Furthermore, nothing could be elicited in the testimony of the prosecution witnesses, and nothing therein could be controverted by the accused. The veracity of the testimony of the witnesses was cogent and FIR No.142/2012 State Vs. Anwari Begum @ Annu Page No. 49/51 Digitally signed by ARUL ARUL Date:
VARMA VARMA 2023.03.23 17:42:47 -0300
credible, and complete reliance can be placed upon them. In this context, it would be pertinent to reproduce the following extracts of Jagjeet Singh Vs State (2015 )219 DLT 199 "All these witnesses were subjected to lengthy cross- examination, however, nothing material could be elicited to discredit their testimony. It has further come in their statements that some independent persons were tried to be joined, however, none agreed. Ordinarily, the public at large show their disinclination to come forward to become the witness. If the testimony of the police officer is found to be reliable and trustworthy, the Court can definitely act upon the same. The Court cannot disbelieve the testimony of police officials solely on the presumption that a witness from the department of police should be viewed with distrust. This is also based on the principle that quality of the evidence weights over the quantity of evidence. These aspects have been highlighted in State of UP v. Anil Singh, 1989 SCC (Cri) 48; State (Govt. of NCT of Delhi) v. Sunil, 2001 SCC (Cri) 248; Ramjee Rai v. State of Bihar, (2007) 2 SCC (Cri) 626; Kashmirilal v. State of Haryana, (2014) 1 SCC (Cri)
441. Appreciating the evidence on record on the anvil of the aforesaid principles, there is no acceptable reason to discard the testimony of the official witnesses which is otherwise reliable and trustworthy."
CONCLUSION
79. Ergo, in view of the reasons hereinabove discussed in extenso, this Court is of the considered view that the prosecution has proved beyond reasonable doubt that the accused Anwari Begum @ Annu was found in possession of 10.7 grams near wall of Community Centre, DDA Park,Nizamuddin Basti, Delhi, on 30.4.2012 at around 04:00 PM and is therefore convicted for the offence punishable u/s 21(b) of the NDPS Act.
80. Further, in consonance with the provisions of Section 40 of the NDPS FIR No.142/2012 State Vs. Anwari Begum @ Annu Page No. 50/51 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.03.23 17:42:59 -0300 Act, the name and place of business and residence of the convict, nature of the contravention, the factum of the accused being convicted, be published in two English and two Vernacular newspapers and in news websites. Accordingly, copy of this order be sent to the DCP, concerned to do the needful.
Digitally
signed by
Announced in the open court ARUL
ARUL
VARMA
on 23.03.2023 VARMA Date:
2023.03.23
17:43:08 -
0300
(ARUL VARMA)
ASJ-04 & Spl. Judge (NDPS)
South-East District Saket Courts, New Delhi FIR No.142/2012 State Vs. Anwari Begum @ Annu Page No. 51/51