Delhi District Court
State vs Andrew on 30 April, 2024
IN THE COURT OF MS. BHAVNA KALIA:
SPL. JUDGE (NDPS)-01: DWARKA COURTS: NEW DELHI
SC No.(Old)81/2015
SC No.(New) 440735-2016
FIR No. 118-2015
U/s. 9A/25A/29 NDPS Act
PS: Crime Branch-S.W.Delhi
STATE Vs. ANDREW AND ANR.
Date of Institution of case:-23.09.2015
Date of arguments:-15.04.2024
Date on which Judgment pronounced:-30.04.2024
JUDGMENT
CNR No. :DLSW01-002164-2015
Date of commission of the offence :31.07.2015
Name of the complainant :Inspector Prem Chandra
Khanduri
Name and address of accused :1. Andrew
S/o Sh.Lalthan
R/o Lamka Churachandpur,
Near Imphal Manipur
also at :
WZ-21, Village Budhela
Vikash Puri, Delhi
2. El Rossi
S/o Peter
R/o Thaizang Churachandpur,
Near Imphal Manipur
also at :
WZ-83, Village Budhela
Vikash Puri,
New Delhi - 110 018
Offence complained of :9A/25A/29 NDPS Act
Plea of accused :Pleaded not guilty
Date of order :30.04.2024
Final order :Acquitted
SC No. 440735/2016 State Vs. Andrew & Anr. Page 1 of 22
FIR No.118/2015
PS Crime Branch
(At the outset, it is clarified that accused Andrew was declared PO vide order dated 17.01.2023).
THE CASE OF THE PROSECUTION:
1. It is the case of the prosecution that on 31.07.2015, at about 9.30 pm, a secret informer came in the office of SWR/Crime Branch, Sector 8, R.K.Puram and informed Inspector Prem Chandra Khanduri that a Manipuri person namely Andrew who was residing at Village Budella, Vikas Puri, used to supply huge quantity of Pseudo Ephedrine to Nigerians and he along with his Nigerian Associate will come at Bus Stand of Sulah Kul Mandir, Opposite NSIT, Dwarka, Kakrola Mor in between 11.00 p.m. to 12.00 a.m and he can be apprehended along with drugs, if raid is conducted. The secret information was recorded in Rojnamcha by Inspector Prem Chandra Khanduri at 9.40 p.m vide DD No. 30 dt. 31.07.2017 SWR/Crime Branch, Sec.8, R.K.Puram. The secret informer was produced by Inspector Prem Chandra Khanduri before ACP/SWR, Sh. Kailash Chand who had also made inquiries from the secret informer and directed Inspector Prem Chandra Khanduri to conduct raid.
2. It is further the case of prosecution that a raiding party was organized by Inspector Prem Chandra Khanduri consisting of HC Virender, HC Yashpal, HC Sanjay, HC Parmod, HC Ravinder and Ct. Balram. They along with secret informer started from the SWR Office at about 10.00 p.m. along with drug testing kit and IO Bag via Barasta Rao Tularam Marg, Airport, Dwarka Flyover in Government Gypsy bearing no.DL-1CM-4232 and at 10.30 p.m. they reached at Sulah Kul Mandir Bus Stand, Opp. NSIT Dwarka Kakraula road. They parked their vehicles in hiding SC No. 440735/2016 State Vs. Andrew & Anr. Page 2 of 22 FIR No.118/2015 PS Crime Branch position behind Bus Stop, Opposite NSIT barrier and Inspector Prem Chandra Khanduri briefed staff and put barrier at Bus Stop, Opposite NSIT. Inspector Prem Chandra Khanduri stopped 3-4 passersby and requested them to join the proceedings but they left stating their problems and without disclosing their name and address. Due to shortage of time no notice could be served on them. Inspector Prem Chandra Khanduri, HC Virender and secret informer were in front of bus stand towards Kakraula turning and HC Yashpal and HC Sanjay were at Bus Stand towards Dwarka side and remaining staff was behind the bus stop. At about 11.00 pm one TSR came from the side of Dwarka and stopped in front of Bus Stand from which two manipuri boys got down and the healthy boy took one plastic bag/katta from backside of the auto rikshaw and kept it at the Bus Stand and both the persons started waiting for sometime at the Bus stand. After about 15/20 minutes both the boys stood and the other boy having long hair kept the plastic katta/bag in his right hand and started crossing the road. The secret informer pointed out towards the boy holding the katta/bag as Andrew and other person as his associate. Thereafter, the secret informer left the spot.
3. It is further the case of prosecution that Inspector Prem Chandra Khanduri stopped both the persons with the assistance of other staff and on inquiry it was found that their names and addresses were Andrew S/o Lalthan R/o WZ 21, Vill-Budhela Vikas Puri (permanent add-Lamka Churachandpur, Near Imphal, Manipur) and El Rossi S/o Peter R/o WZ-90, Village Budhela, Vikas Puri, Delhi (permanent add-Thaizong Churachandpur, Manipur).
SC No. 440735/2016 State Vs. Andrew & Anr. Page 3 of 22 FIR No.118/2015PS Crime Branch Inspector Prem Chandra Khanduri gave introduction of the raiding party and himself to both of them and told about the secret information of their possessing Pseudo-Ephedrine, which is a control substance under NDPS Act for which their search was required. Both the accused persons were apprised about their legal right to be searched in the presence of any Gazetted Officer or Magistrate. They were apprised about their legal rights that they could take the search of the members of the raiding team before their search but both the accused persons refused to use their legal right. Thereafter, Inspector Prem Chandra Khanduri prepared two separate notices under Section 50 NDPS Act in English and they were explained to the accused persons. Both the accused persons had refused and had given their own reply on the notice by writing themselves on notices in English. Thereafter, personal search of accused Andrew was conducted by Inspector Prem Chandra Khanduri and from his possession a white plastic katta which was tied with twine (dori) which he was carrying in his right hand was taken into possession. The katta was opened and white colour shiny powder in a transparent polythene was found therein and on checking by drug testing kit same was found to be Pseudo Ephedrine. Recovered Pseudo Ephedrine along with plastic katta was found to be 15 kg when weighed with the help of weighing scale. From the recovered powder two samples of 25 gram each were taken out and put in two separate pouches which further were kept in two separate yellow envelopes which were given mark A1 and A2. Thereafter remnant Pseudo Ephedrine along with plastic katta was converted into a parcel after tying its mouth, which was given mark A. FSL SC No. 440735/2016 State Vs. Andrew & Anr. Page 4 of 22 FIR No.118/2015 PS Crime Branch form was filled. Inspector Prem Chandra Khanduri put his stamp PCK on envelopes mark A-1, A-2, Katta Mark A and FSL Form and the seal after use was handed over to HC Virender. Inspector Prem Chandra Khanduri had taken cursory search of accused El- Rossi but no incriminating article was recovered from him.
4. It is further the case of prosecution that since both the accused persons Andrew S/o Lalthan and El Rossi S/o Peter in criminal conspiracy had kept Pseudo-Ephedrine which is a controlled substance under NDPS Act, a tehrir was prepared which was handed over to HC Yashpal who left in Govt. Gypsy no.DL-1 CM-4232 for PS Crime Branch, alongwith all the aforesaid pullandas A, A1 and A2, FSL Forms and copies of seizure memos for registration of case and for proceedings under Section 55 NDPS Act. At about 2.45 am, further investigation of this case was marked to SI Kuldeep Sharma, as per information received by him from DO.
5. It is further the case of the prosecution that IO/SI Kuldeep Sharma reached at the spot at about 4.00 am where Inspector Prem Chandra Khanduri along with staff were present, who handed over copy of tehrir, two separate notice under Section 50 NDPS Act, original seizure memos and both the accused persons to him.
6. It is further the case of the prosecution that the place of incident was inspected by the IO who prepared site plan at the instance of Inspector Prem Chandra Khanduri. At 6.15 am HC Yashpal came at the spot after registration of FIR and gave him original tehrir and copy of FIR and he mentioned the details of case on the documents.
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7. It is further the case of the prosecution that thereafter, both the accused persons were arrested in between at about 6.30 am and 6.45 am and their personal search was taken by IO. From the personal search of accused Andrew a ICICI Bank Debit Card, one RC of vehicle i.e. motorcycle make Yahma bearing regn no.DL- 5SAB-5209 in the name of Dalip Singh, Rs.2250/-, one wrist watch sonata green and black colour, one ring silver colour, Nokia mobile phone black colour model 108 IMEI 35779706444235 with sim no.8826131165, carbon copy of notice under Section 50 NDPS Act and Rs.1,00,000/- were recovered Further from the personal search of accused El Rossi Rs.1,040/-, one mobile phone Motorola with two micro sim airtel no.XT-1506 and one carbon copy of notice under Section 50 NDPS Act were recovered.
8. It is further case of the prosecution that at about 8.30 am both the accused persons were taken to police station. During interrogation, IO had recorded disclosure statement of both the accused persons. IO had recorded statement of witnesses and the information about the arrest of both the accused persons was given to their relatives.
9. Thereafter, IO produced a report u/s 57 NDPS Act regarding arrest of both accused persons to ACP/SWR. Both the accused were medically examined at Safdarjung Hospital. Both the accused persons were produced in the court of Duty MM. Accused Andrew was granted two days PC remand and accused El Rossi was sent to JC. As disclosed by accused Andrew, the person Raju was searched for but he could not be traced due to lack of complete details. During PC remand rented SC No. 440735/2016 State Vs. Andrew & Anr. Page 6 of 22 FIR No.118/2015 PS Crime Branch accommodation of accused Andrew was searched but no intoxicant/drug was recovered.
10. On 03.08.2015, sealed parcels of this case were got deposited in FSL Rohini and thereafter, after obtaining the FSL results pertaining to the exhibit of this case, same were placed on record and after completion of investigation, the charge-sheet was filed in the Court against both the accused persons.
COGNIZANCE AND SUPPLYING OF DOCUMENTS:
11. On 23.09.2015, cognizance of the offence punishable u/s 9A/25A/29 of NDPS Act was taken and documents were supplied to both the accused persons.
CHARGE:
12. On 17.03.2016, Charge was framed qua both the accused persons namely, Andrew and El Rossi for offences punishable under Section 9A/25A/29 of NDPS Act to which they had pleaded not guilty and claimed trial.
PROSECUTION WITNESSES:
13. The prosecution examined 12 witnesses in support of its case.
14. PW-1 Smt. Preeti Singh was landlady of the accused Andrew who deposed that accused Andrew was her tenant and a rent agreement dt. 27.04.2013 was executed in this respect. However, the name of accused Andrew is mentioned as Johny Vanlal Ruata in the said rent agreement. She correctly identified accused Andrew correctly in the court.
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15. PW-2 ASI Ram Prasad is a formal witness who has proved on record FIR No.118/15 as Ex.PW2/A, his endorsement Ex.PW2/B and certificate under Section 65-B regarding computerised copy of FIR as Ex.PW2/C.
16. PW-3 Inspector Prem Chandra Khanduri is the complainant in the present case and he deposed on similar lines as case of the prosecution. He has deposed that On 31.07.2015, a secret informer came to his office at about 9.30 pm and informed that one person namely Andrew, resident of Budhela Village, Vikaspuri, New Delhi used to supply pseudoephedrine to Nigerian customers and would come near Sulahkul Mandir Bus Stand, Opposite NSIT, DwarkaKakrola Road alongwith his associate in between 1112 in the night. He recorded the secret information in roznamacha vide DD No.30 (Ex.PW3/A). He produced the secret informer and the copy of DD No.30 before ACP Sh. Kailash Chander who made enquiries from the secret informer. As per direction of ACP, he formed a raiding party consisting of HC Virender, HC Yashpal, HC Sanjay Tyagi, HC Parmod, HC Ravinder and Constable Balram. Thereafter they started from the office at about 10 p.m. alongwith the secret informer in government gypsy No. DL 1CM 4232 and a private car, vide departure entry in roznamcha vide DD No. 31 (Ex.PW3/B). He was having IO bag and drug testing kit. They reached near Sulahkul Mandir Bus Stand, Opposite NSIT, DwarkaKakrola Road at about 10.30 p.m. He further deposed that the vehicles were parked on the service road behind the bus stop. He requested 34 public persons to join the raiding party but SC No. 440735/2016 State Vs. Andrew & Anr. Page 8 of 22 FIR No.118/2015 PS Crime Branch none of them joined and went away. He briefed the members of the raiding party and thereafter they took position on different points near the bus stop and started waiting for the accused persons. He further deposed that at around 11.10 pm, one TSR came from the side of Dwarka redlight which stopped at the bus stop and two persons alighted from the said TSR. He further deposed that one of them took out a plastic katta (bag) from the TSR and thereafter the TSR had gone away. The aforesaid two persons sat on the bus stop with the plastic katta (bag). After waiting for someone for about 1015 minutes, both the said persons started going from the spot with the plastic katta (bag). Both the said persons were correctly identified by this witness. He further deposed that accused El Rossi was the person who took out the plastic bag from the TSR and accused Andrew as the person who had lifted the plastic bag when they were going from the spot. He further deposed that the secret informer pointed out towards accused Andrew and thereafter he left the spot. He deposed that when both the accused persons had started going from the spot, he alongwith the members of the raiding party had apprehended them and gave introduction of his team to the accused persons and told them about the secret information. He apprised both the accused persons about their legal rights and that if they desired, Gazetted Officer or Magistrate could be called at the spot for their search to be conducted in their presence. He further deposed that he also apprised the accused persons that they can take the search of the police party before their search, if they wished. He prepared two separate notices under Section 50 SC No. 440735/2016 State Vs. Andrew & Anr. Page 9 of 22 FIR No.118/2015 PS Crime Branch NDPS Act in duplicate and handed over the carbon copy of the notices to both the accused persons and obtained their reply on the original copies. Both the accused persons stated that they did not want their search before Gazetted Officer or Magistrate and stated that the police party could take their search. The notice under Section 50 NDPS Act in the name of accused Andrew is Ex.PW3/C and his reply on the same is Ex.PW3/D and the notice under Section 50 NDPS Act in the name of accused El Rossi is Ex.PW3/E and his reply on the same is Ex.PW3/F. He further deposed that thereafter he took search of accused Andrew and opened the plastic bag which the accused was carrying in his right hand. The plastic bag was containing a transparent polythene containing white coloured shiny powder. He checked the recovered white coloured shiny powder with the help of drug testing kit and it was found to be pseudoephedrine. He weighed the plastic bag containing the pseudoephedrine powder with the help of electronic weighing machine and it was found to be 15 Kg in weight. He took two samples of 25 gms each and kept the same in two separate plastic pouches. The pouches were kept in two separate yellow coloured envelopes and the same were given Mark A1 and A2. The plastic bag containing the remaining pseudoephedrine was tied and was converted into a parcel and was given Mark A. He filled the FSL form. He sealed parcel Mark A, envelope Mark A1 and A2 with the seal of PCK. He affixed the seal of PCK on FSL form. He further deposed that he took search of accused El Rossi and nothing incriminating was recovered from his possession. He seized the parcel Mark A, SC No. 440735/2016 State Vs. Andrew & Anr. Page 10 of 22 FIR No.118/2015 PS Crime Branch envelope Mark A1 and A2 and FSL form vide seizure memo and the same is Ex.PW3/G. The carbon copy of the seizure memo was also prepared. Seal after use was handed over to HC Virender by him. Both the accused persons could not produce any licence or document for the possession of pseudo ephedrine. He prepared rukka Ex.PW3/H and handed over the same to HC Yashpal alongwith parcel Mark A, envelopes Mark A1, A2, FSL form and copy of seizure memo and sent him to P.S. Crime Branch, Malviya Nagar, with the directions to produce the rukka before the Duty Officer and to produce the remaining articles before the SHO. The spot was left by HC Yashpal in government gypsy at about 2.30 a.m.
17. He further deposed that SI Kuldeep Sharma/IO came to the spot at around 4 a.m. on 01.08.2015 to whom he handed over both the accused persons alongwith the documents. SI Kuldeep Sharma prepared a site plan Ex.PW3/H1 at his instance. HC Yashpal had also returned to the spot. Both the accused persons were arrested by IO and thereafter they all had left the spot.
18. He further deposed that on 01.08.2015, he prepared a report under Section 57 NDPS Act regarding the recovery of pseudoephedrine and sent the same to ACP, SWR/Crime. The copy of the said report is Mark A. On the same day, the report under Section 57 NDPS Act regarding arrest of the accused persons was prepared by SI Kuldeep and the same was forwarded by him to ACP, SWR/Crime. His statement was recorded by the IO SI Kuldeep Sharma. He identified the case property produced before the Court by the MHC(M) on production of which SC No. 440735/2016 State Vs. Andrew & Anr. Page 11 of 22 FIR No.118/2015 PS Crime Branch following observation was made by the Court:
"At this stage, a sealed envelope sealed with the seal of FSL is produced by the MHC(M). Same is opened and found containing a yellow envelope Mark A1 and one transpar ent pouch containing white coloured shiny powder which is shown to the witness who identified the white coloured shiny powder as the same which was taken as sample from the recov ered white coloured shiny powder. The white coloured shiny powder with plastic pouch is Ex.P1.
At this stage, another yellow coloured sealed enve lope Mark A2 sealed with the seal of PCK and RK is produced by MHC(M). Same is opened and found containing one trans parent pouch containing white coloured shiny powder which is shown to the witness who identified the white coloured shiny powder as the same which was taken as sample from the recov ered white coloured shiny powder. The white coloured shiny powder with plastic pouch is Ex.P2.
At this stage, a plastic katta (bag) Mark A sealed with the seal of PCK and RK is produced by the MHC(M). Same is opened and found containing a transparent polythene containing white coloured shiny powder which is shown to the witness who identified the white coloured shiny powder as the same which was recovered from the possession of accused An drew. The white coloured shiny powder with plastic polythene is Ex.P3.
At this stage, two carbon copies of notices under Section 50 NDPS Act, one in the name of accused Andrew and other in the name of accused EL Rossi are produced by the MHC(M) which are shown to the witness who identified the same correctly. The same are Ex.P4 and Ex.P5 respectively."
19. During cross examination PW-3 has stated that he did not remember if the mouth of the pouches were tied or not before putting the same in yellow envelopes. He stated that the said pouches were transparent and no mark was put on the pouches, however, signatures of the accused persons were taken on the envelopes. He has further stated that the signatures of the SC No. 440735/2016 State Vs. Andrew & Anr. Page 12 of 22 FIR No.118/2015 PS Crime Branch accused persons were also taken on the parcels which was Mark A. He has stated that pulandas Mark A, A1 and A2 were signed by him as well as the witnesses namely HC Yashpal and HC Virender. He has further stated that he had not obtained the signatures of the accused persons and the witnesses on FSL Form. He said that the FSL Form was filled in original and no copy of it was prepared. He has further stated that weight of the sample of 25 gms was with polythene pouch. He said that no thread was used for the purpose of sealing the yellow envelopes. He has stated that he did not remember the exact number of the seals affixed on the yellow envelopes. He has further stated that he did not remember the complete particulars which he had written on the yellow envelopes but he had written some other particulars apart from Mark A1 and A2 on the yellow envelopes.
20. PW2 has further stated that at the spot, the documents prepared by him first of all, were the notices under Section 50 NDPS Act. He said that carbon copy of the notices were given to the accused persons and thereafter, their reply were taken on the original copy of the notices. The carbon impression of the reply of the accused persons could not be there on the carbon copy of the notices because the carbon copies were given to the accused prior to taking their reply.
21. PW2 has further stated that all the members of the raiding party were in plain clothes. He was not carrying any weapon. He has further stated that the spot was at the distance of about 15 kms of the office of Crime Branch, R.K. Puram. He has stated that on the way to the spot from the Office of Crime Branch, he had not SC No. 440735/2016 State Vs. Andrew & Anr. Page 13 of 22 FIR No.118/2015 PS Crime Branch tried to join any public persons in the raiding party. He has further stated that the approximate traveling time from the Crime Branch Office, R.K. Puram to the spot was 30 minutes. He admitted that neither the particulars of the public persons who were requested to join the raiding party were recorded nor any notices were served upon them. He has further stated that the registration number of the TSR which came at the spot was not taken/noted by him or by any other member of the raiding party. He has further stated that he had not directed HC Virender or any other member of the raiding party to note down the registration number of the TSR. He denied the suggestion that accused Andrew was arrested by him and other police officials from his rented accommodation at Vikas Puri, New Delhi on 31.07.2015.
22. PW3 has further stated that it took about 810 minutes in pre paring the notices under Section 50 NDPS Act. He has stated that he was having mobile phone No. 9911441848 at the spot but he did not remember whether he used his mobile phone on the way to the spot. He has further stated that from the spot, he made a phone call from his mobile number at the land line number of his office for the purposes of calling the IO at the spot. He has further stated that he himself had appointed the second IO of the present case and had not taken any directions from any senior officer for appointing the second IO SI Kuldeep. He has denied the suggestion that the accused persons were arrested from their respective residences on 31.07.2015 and thereafter, they were falsely implicated in the present case by planting controlled substance upon them. He has also denied SC No. 440735/2016 State Vs. Andrew & Anr. Page 14 of 22 FIR No.118/2015 PS Crime Branch the suggestion that he had illegally arrested the accused persons from their residences and due to this reason, he had appointed the second IO SI Kuldeep Singh himself. He denied the sugges tion that he had deposed falsely.
23. PW-12 Inspector Kuldeep Sharma is the IO of the case and he deposed that on 31.10.2015, he was posted at PS Crime Branch, R.K.Puram as Sub Inspector and on that day after registration of the FIR, investigation of this case was marked to him. HC Ravinder handed over copy of FIR and original tehrir to him in his office at Crime Branch. During investigation, he alongwith Ct. Ravinder reached at the spot i.e. Bus Stand, Sulekul Mandir, Opposite NSIT, Dwarka, where Inspector P.c.Khanduri with police staff, accused El Rossi and Andrew were found present. Inspector P.C. Khanduri handed over the custody of both the accused persons to him and he interrogated both the accused persons and after interrogation they were arrested vide arrest memos Ex.PW4/A and Ex.PW4/B. He further deposed that he took personal search of accused persons and during the personal search of accused El rossi Rs.1040/-, carbon copy of notice under Section 50 NDPS Act and one mobile phone black colour Motorola were recovered vide seizure memo Ex. PW-4/E. He further deposed that Rs. One lac were recovered from accused Andrew which were taken into police possession vide memo Ex. PW-4/C . He said that during personal search of accused Andrew one ICICI Debit Card, one RC of motorcycle, Rs. 2,250/-, one wrist watch Sonata, one ring silver, one mobile phone make Nokia, carbon copy of notice under section 50 NDPS Act were recovered vide memo Ex. PW-4/D. He has further deposed that SC No. 440735/2016 State Vs. Andrew & Anr. Page 15 of 22 FIR No.118/2015 PS Crime Branch he had prepared site plan PW-3/H1 at the instance of police staff. He further deposed that they took both the accused persons and personal search articles to the PS Crime Branch R.K. Puram.
24. PW-12 has further deposed that after reaching, PS Crime Branch, he interrogated both the accused persons in detail and recorded their disclosure statement and same are Ex. PW-4/F and Ex. PW-4/G. Intimation under Section 57 NDPS Act (Ex. PW- 11/C) regarding arrest of both accused persons and recovered substance were sent to ACP. Personal search articles were deposited in the malkhana of PS Crime Branch.
25. PW-12 has further deposed that on 02.08.2015, samples of case property were sent to FSL through HC Balram and after depositing the samples, Ct. Balram handed over the acknowledgment of receipt to the MHC(M). He further said that both accused persons were produced before the court and he obtained two days PC remand on application Ex. PW-12/A. He further said that during PC remand, he took both the accused persons to their rented accommodation at H.No.WZ-21, Second Floor, Village Budela, Vikas Puri, New Delhi where he took the search of said house in the presence of independent witnesses but nothing incriminating was recovered and he prepared Khana Talasi Memo Ex. PW-4/H. He has further deposed that he also prepared the site plan of the above said house Ex. PW-12/B. He said that he recorded statement of witnesses. He said that on 31.08.2015, he collected the document i.e. rent agreement (Mark A) photocopy of voter ID card of owner of H.No.WZ-21, Budela, Vikas Puri (Mark A2) and seized them vide memo Ex. PW-12/C. Copy of sale deed dated 14.05.2009 is Mark A1. He SC No. 440735/2016 State Vs. Andrew & Anr. Page 16 of 22 FIR No.118/2015 PS Crime Branch said that he prepared charge sheet and filed in the court.
26. During cross examination PW-12 has stated that on 01.08.2014, ACP Kailash Chandra was the Incharge of PS Crime Branch, R.K. Puram who appointed him IO in the present case. He has stated that he remained present at the spot for about 2 ½ hours and left the spot at about 08.00 AM. He has stated that he had not filled any FSL Form as the same was filled by Inspector P.C. Khanduri when he reached the spot.
27. He has further stated that he got sent only one sample to FSL in the morning of 02.08.2015 which was sealed in an envelope. He has stated that there were four seal impression on the sample and those seals were of two different police officials.
28. He has further stated that he did not remember whether he mentioned about the recovery of Rs. One lacs in his report under section 57 NDPS Act. He further stated that the reply of accused persons were written on the carbon copies under section 50 NDPS which were recovered from the personal search of the accused persons.
29. He has further stated that he reached at the police station at about 8.30 AM. He denied the suggestion that both the accused persons were illegally picked up from their respective residence. He also denied the suggestion that the contraband was planted upon the accused persons or that all the fabricated proceedings were conducted while sitting at the office of crime branch. He also denied the suggestion that no raid or proceedings were conducted at the alleged spot. He also denied the suggestion that he never visited the alleged spot at any point of time on 01.08.2015.
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30. Remaining witnesses are supporting witnesses or formal witnesses. Their evidence is not discussed in detail considering brevity. All the witnesses were cross-examined and deposed similarly.
STATEMENT OF ACCUSED RECORDED U/S 313 CR.P.C.:
31. On 30.03.2024, all the incriminating evidence was put to the accused El Rossi for the purpose of recording his statement u/s 313 Cr.P.C. He replied that he was falsely implicated in the present case; he was illegally picked up by the police from his residence; he had never visited the alleged spot at any point of time; nothing incriminating was recovered from his possession of at his instance; police implicated him at the instance of their senior officers and that he was innocent. The accused had not opted to lead any evidence in his defence.
FINAL ARGUMENTS:
32. Final arguments in the matter were heard on 15.04.2024. Ld. counsel for the accused had stated that accused should be acquitted in the matter as there were contradictions in the statements of prosecution witnesses and that despite availability of independent witnesses, no public witness was included in the list of witnesses. It was also stated that sampling was not done as per law.
33. Ld. APP had argued that evidence of prosecution witnesses was consistent and recovery made from the accused was as per procedure. It was submitted that no defence has come forward from the accused to prove his innocence.SC No. 440735/2016 State Vs. Andrew & Anr. Page 18 of 22 FIR No.118/2015
PS Crime Branch REASONS FOR DECISION AND DECISION:
34. I have considered the rival submissions and gone through the documents and evidence available on record.
35. Before proceeding to discuss the merits of the case, it is important to understand the legal provisions. Section 35 of NDPS Act presumes culpable mental state of the accused i.e. reverse burden of proof. It provides that the Court shall presume the culpable mental state of the accused but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged. Further, Section 54 of the NDPS Act provides that the Court shall presume unless the contrary is proved, that the accused has committed an offence under the Act for which he has been charged in case he is found in possession of the substance as mentioned in the Section for which he has no satisfactory explanation 1. It is settled legal proposition that the procedure provided under Chapter V of the NDPS Act has to be scrupulously followed for the Court to raise such presumption. The procedure provides that when the Officer u/s 41 NDPS Act receives secret information, he has to inform the same to his superior Officer within 72 hours. In case, any arrest or seizure is done, the Officer mentioned u/s 42 NDPS Act has to forward the same to the IO without unnecessary delay. The Officer mentioned u/s 42 NDPS Act is the complainant who arrests the accused and does recoveries himself or through the raiding party. The complainant is the witness who claims recovery of prohibited substances from the possession of the accused and these claims are verified and substantiated by the IO during investigation. It is further mandatory 1 Balvinder Singh (Binda) Vs. NCB AIR 2023 SC 4684 SC No. 440735/2016 State Vs. Andrew & Anr. Page 19 of 22 FIR No.118/2015 PS Crime Branch that the IO has to take measures for disposal of the alleged substances as per Section 52(4) of the Act. Further, the person arrested has to be produced before the Magistrate and the contraband seized is required to be dealt with by the Officer u/s 53 NDPS Act or the SHO in accordance with Section 52A of NDPS Act. For raising the presumption u/s 54 of the Act it must be first established that recovery was made from the accused and the procedure provided under the NDPS Act followed thoroughly without fail. It is further settled law that for attracting the provision of Section 54 of NDPS Act, it is essential for the prosecution to establish the element of possession of contraband by the accused beyond reasonable doubt for the burden to shift to the accused to prove his innocence 2. This burden on the prosecution is a heavy burden. To decide whether the burden has been discharged or not by the prosecution, it is relevant to peruse the record and evidence and consider the submissions made by the parties.
36. The record of the present case reveals that the accused persons stand charged for the possession of 15 Kg of Pseudo Ephedrine kept in a plastic katta without any valid permission/licence. All the prosecution witnesses of the raiding party have deposed similarly with regard to the above-said recovery from the accused.
37. From the recovery made and samples sent to FSL, the report of FSL confirmed it to be Pseudo Ephedrine which is a controlled substance under the NDPS Act. However, even though the samples sent to FSL were properly taken at the spot, yet it is still to be seen whether the sampling was done as per law i.e. whether the provisions u/s 52 and 52A of NDPS Act were properly followed. Section 52 provides that the accused has to be informed about the grounds of 2 Balvinder Singh (Binda) Vs. NCB, AIR 2023 SC 4684; Noor Aga Vs. State of Punjab, (2008) 16 SCC 417 SC No. 440735/2016 State Vs. Andrew & Anr. Page 20 of 22 FIR No.118/2015 PS Crime Branch arrest and the property seized has to be sent to the Magistrate by whom warrants were issued/Officer Incharge of nearest police station/Officer empowered u/s 53 NDPS Act, as the case may be. In the present case, the accused was informed about his apprehension and arrest by the Officer concerned. Further, the seized property was also immediately sent to PW-7 who was Incharge of the nearest police station. Section 52A provides for the procedure and manner of seizing, preparing the inventory of the seized material, forwarding the seized material and getting inventory certified by the Magistrate concerned. It is further provided that the inventory or the photographs of the seized substance and any list of samples in connection thereof on being certified by the Magistrate shall be recognized as primary evidence in connection with the offence alleged under the NDPS Act.
Further, when such seized contraband is forwarded to the Officer Incharge of the police station, as in the present case, the Officer has to prepare its inventory with details and description of the seized substance like quality, quantity, mode of packing, number and identifying marks and then make an application to any Magistrate for the purpose of certifying its correctness and for allowing to draw representative samples of such substances in the presence of Magistrate and to certify the correctness of the list of samples so drawn. In the present case, no evidence has been brought on record that the procedure described under Section 52A was followed while making the seizure and drawing sample such as preparing the inventory and getting it certified by the Magistrate. It has been held in the case of Yusuf @ Asif Vs. State3 that the mere fact that samples were drawn in presence of the Gazetted Officer is not sufficient compliance of the mandate of Section 52A(2) of NDPS Act. It has 3 2023 SCC Online SC 1328 SC No. 440735/2016 State Vs. Andrew & Anr. Page 21 of 22 FIR No.118/2015 PS Crime Branch been further held in the said case that 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 therefrom would not be a valid piece of primary evidence in the trial and that once there is no primary evidence available, the trial as a whole stands vitiated. In the case of Yusuf @ Asif Vs. State (Supra), the accused was apprehended on 28.03.2000 by the NCB and the procedure u/s 52A was not followed. It is obvious that in the present case also the procedure u/s 52A has not been followed and the application for drawing of samples was never filed before the Magistrate. Thus, relying on the Judgment of Yusuf @ Asif Vs. State (Supra) it is obvious that there is no primary evidence available on record and the same vitiates the trial.
38. Hence, considering the overall facts and circumstances of the present case and given the above observations, accused El Rossi is acquitted of the offence punishable under Section 9A/25/29 of the NDPS Act.
39. Case property is confiscated to the State and in case no appeal is filed within the prescribed time, the same may be disposed of, as per rules. File be consigned to Record Room, after due compliance.
BHAVNA Digitally signed by
BHAVNA KALIA
KALIA Date: 2024.04.30
13:18:16 +0530
Announced in the open court (BHAVNA KALIA)
today i.e 30th April, 2024 Special Judge (NDPS)-01: SW District
Dwarka Courts: New Delhi
SC No. 440735/2016 State Vs. Andrew & Anr. Page 22 of 22
FIR No.118/2015
PS Crime Branch