Delhi District Court
State vs Sarvesh Kumar Gupta (Bail) on 29 November, 2014
IN THE COURT OF SH. SANJAY SHARMA : SPECIAL JUDGE (NDPS) /
ADDL. SESSIONS JUDGE, (NORTH-EAST): KARKARDOOMA
COURTS, DELHI
SC No. : 26/2009
FIR No. : 135/2009
PS : Harsh Vihar
U/Sec. : 21/61/85 NDPS Act
Case ID : 02402R0241342009
State Versus Sarvesh Kumar Gupta (Bail)
S/o Sh. Ram Khilawan Gupta
R/o Vijay Nagar Colony
Badaun, U.P.
Date of Institution : 25.07.2009
Date of reserving order : 30.10.2014
Date of Judgment : 29.11.2014
JUDGMENT
Introduction
1. On 12.07.2009 at about 02.00 p.m., PW-11 SI Pratap Singh received an intelligence from a secret informer in the police station Harsh Vihar that Sarvesh Kumar Gupta (hereinafter referred as 'the accused'), a resident of Badaun, U.P., would come at 03.00 p.m. at Bank Colony Bus Stop, Wazirabad Road from U.P. to supply smack and he could be apprehended with smack, if raided.
2. PW-11 SI Pratap Singh conveyed the secret information to PW-12 Insp. Sunder Lal Parashar, SHO, Harsh Vihar who forwarded the information to senior officers and directed to form a raiding team and conduct a raid immediately.
FIR No. 135/2009 State Vs. Sarvesh Kumar Gupta Page No. 1/243. At 02.15 p.m., PW-11 SI Pratap Singh reduced the secret information into writing vide DD No. 11-A Ex.PW11/A and constituted a raiding team comprising himself, PW-2 HC Harender, PW-3 HC Upender and PW-6 Ct. Kavinder and briefed them about the secret information. He alongwith raiding team and secret informer proceeded to the place of information in civil dress.
4. At about 02.30 p.m., PW-11 SI Pratap Singh with raiding team and secret informer reached at Bank Colony Bus Stop, Wazirabad Road where he requested 4-5 passers-by to join the raiding team but none of them agreed and left the spot after expressing their genuine excuses without disclosing their names and addresses. He briefed the members of the raiding team and positioned them near and around the spot.
5. At about 03.00 p.m., the accused was seen coming from Gagan Cinema T-point towards police station Nand Nagri. He was carrying a black colour polythene in his right hand. Secret informer identified him. The accused was apprehended by the members of the raiding team.
6. PW-11 SI Pratap Singh introduced himself and the members of the raiding team to the accused. He informed the accused that he was having information that he was carrying illicit smack and he had come to Delhi to supply it and his search was required to be conducted. He informed the accused that it was his legal right that if he desired, a Gazetted Officer or a Magistrate can be called for conducting his search.
FIR No. 135/2009 State Vs. Sarvesh Kumar Gupta Page No. 2/247. PW-11 SI Pratap Singh informed the accused that he can conduct search of the members of the raiding team prior to his search. He had given a notice under section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred as 'the NDPS Act') to the accused in this regard and carbon copy thereof is Ex.PW2/A. He read over and explained the said notice to the accused and handed over original copy of the said notice to the accused. The accused acknowledged the receipt of the notice and affixed his signature thereon. The accused declined the offer and recorded his refusal on the carbon copy of the notice under section 50 of the NDPS Act and appended his signature thereunder. The refusal of the accused is Ex.PW2/B.
8. PW-11 SI Pratap Singh made another effort by requesting 3-4 passers-by to join the search proceedings. PW-1 Satpal joined the proceedings. In his presence, he had taken the said polythene bag from the hand of the accused and checked it. It was containing one transparent polythene having brown white colour powder inside it. He opened the said polythene. He smelt and tasted the said powder. He checked the said powder with a test kit. It was found to be smack. He informed about the recovery of smack from the accused to PW-12 Insp. Sunder Lal Parashar, SHO, PS Harsh Vihar through telephone.
9. PW-11 SI Pratap Singh weighed the recovered smack on a manual weighing machine. It weighed 600 gms.
FIR No. 135/2009 State Vs. Sarvesh Kumar Gupta Page No. 3/2410. PW-11 SI Pratap Singh drawn 2 samples of 100 gms. each from the recovered smack and kept them in two separate polythene and converted them into cloth parcels. The said sample parcels were given mark A and mark A-1. The remaining smack was kept in the same polythene and converted into a cloth parcel which was given mark B. He sealed the said 3 parcels with his seal 'PSY'.
11. At that time, PW-12 Insp. Sunder Lal Parashar reached at the spot. PW-11 SI Pratap Singh produced the accused and the recovered smack before him. PW-12 Insp. Sunder Lal Parashar made enquiry from the accused and after satisfying himself, he affixed his seal having impression 'SLP' thereon.
12. PW-11 SI Pratap Singh filled FSL Form and affixed his seal having impression 'PSY' thereon. He seized the said 3 sealed cloth parcels and form FSL vide seizure memo Ex.PW2/F. Seal after use was handed over to public witness/PW-1 Satpal. PW-12 Insp. Sunder Lal Parashar had left the spot with 3 sealed cloth parcels and form FSL.
13. PW-11 SI Pratap Singh prepared rukka Ex.PW11/B and handed it over to PW-6 Ct. Kavinder for registration of FIR. PW-6 Ct. Kavinder left the spot alongwith rukka at 04.45 p.m.
14. On receipt of rukka, PW-8 HC Anil, Duty Officer, recorded Kayami DD No. 15-A Ex.PW8/A and FIR Ex.PW8/B. After registration of FIR, investigation of the case was assigned to PW-9 ASI Raghu Raj Singh.
FIR No. 135/2009 State Vs. Sarvesh Kumar Gupta Page No. 4/2415. At about 06.00 p.m., ASI Raghu Raj Singh with PW-6 Ct. Kavinder reached at the spot where he met PW-11 SI Pratap Singh and members of the raiding team. PW-11 SI Pratap Singh handed him over the seizure memo Ex.PW2/F and custody of the accused. PW-9 ASI Raghu Raj Singh, Investigating Officer prepared site plan Ex.PW9/A at the instance of SI Pratap Singh. He recorded statement of PW-1 Satpal. He interrogated the accused and arrested him vide arrest memo Ex.PW2/C and conducted his personal search Ex.PW2/D. In his personal search, one mobile phone Reliance LG, pocket diary, voter identity card, driving license, a sum of Rs.125/- and original notice under section 50 of the NDPS Act were recovered.
16. PW-9 ASI Raghu Raj Singh recorded disclosure statement of the accused Ex.PW2/E. In his disclosure statement, the accused disclosed that he has kept the remaining charas and material in his room in Bareilly, U.P.
17. Pursuant to the disclosure statement, the accused led PW-9 ASI Raghu Raj Singh to his house in Bareilly, U.P. The accused got smack, paracetamol and sodium recovered from a bag kept under cot in his house in Bareilly, U.P. The recovered smack was weighed and it was found to be 900 gms. PW-9 ASI Raghu Raj Singh drawn 2 samples from 100 gms each from the said smack and converted into cloth parcels. He has given mark B to the remaining charas and mark B-1 and mark B-2 to the sample parcels.
FIR No. 135/2009 State Vs. Sarvesh Kumar Gupta Page No. 5/2418. The weight of the paracetamol was found to be 3.500 k.gms. PW-9 ASI Raghu Raj Singh drawn two samples of 200 gms. each therefrom and converted the remaining paracetamol and the samples into cloth parcels which were given mark C and C-1 and C-2 respectively. He recovered four packets of sodium from a bag and the gross weight thereof was 19.300 k.gms. He drawn four samples of 100 gms. each of the said four packets and converted them into cloth parcels which were marked as mark D and D-1, D-2, D-3, D-4 respectively. He recovered two cloth pieces, one white colour and grey colour, used for cleaning of smack and converted them into a cloth parcel which was given mark E-1. He sealed all the parcels with his seal having impression 'JPS'. Seal after use was handed over to PW-3 Ct. Upender. He seized all the cloth parcels including sample parcels vide seizure memo Ex.PW2/F.
19. PW-9 ASI Raghu Raj Singh again recorded disclosure statement of accused Ex.PW2/G and recovered a Maruti WagonR DL 3CM 5050 from DLF flats, Bhopura which was sized vide seizure memo Ex.PW2/H. He brought the accused to the police station and produced him before PW-12 Insp. Sunder Lal Parashar. He produced all the sealed parcels and form FSL before PW-12 Insp. Sunder Lal Parashar who counter sealed the said parcels and FSL form and thereafter, deposited in police malkhana.
20. PW-9 ASI Raghu Raj Singh prepared a report U/sec. 57 of the NDPS Act and submitted it to SHO PS Harsh Vihar.
FIR No. 135/2009 State Vs. Sarvesh Kumar Gupta Page No. 6/2421. On 29.07.2009 and 30.07.2009, the sample parcels were sent to FSL, Rohini for chemical examination.
22. According to FSL reports Ex.PW9/X and Ex.PW9/Y, the percentage of diacetylmorphine was found 0.74% in sample parcel mark A and A-1 respectively and 1% in sample parcel mark B-1.
23. On completion of investigation, the accused was charge-sheeted under section 21 of the NDPS Act, 1985.
24. The accused was charged under section 21 (c) of the NDPS Act, 1985 to which he pleaded not guilty and claimed trial.
25. During the course of trial, the prosecution examined 12 witnesses, as under:
The witnesses Description of the witnesses PW-1 Satpal Public witness PW-2 HC Harender Recovery witness PW-3 HC Upender Recovery witness PW-4 SI Chaman Lal SO to ACP, Seemapuri PW-5 HC Sandeep Tyagi In-charge, Malkhana PW-6 Ct. Kavinder Recovery witness PW-7 Ct. Satender Sample Depositor PW-8 HC Anil Duty Officer PW-9 ASI Raghu Raj Investigating Officer PW-10 Ct. Vineet Kumar Sample Depositor PW-11 SI Pratap Singh In-charge, Raiding Team PW-12 Insp. Sunder Lal Parashar SHO, PS Harsh Vihar
26. Material circumstances emerging in prosecution evidence against the accused were put U/sec. 313 Cr.P.C.FIR No. 135/2009 State Vs. Sarvesh Kumar Gupta Page No. 7/24
27. According to the accused, no smack was recovered from his possession. He stated that no smack, sodium or paracetamol was recovered from his residence. He stated that WagonR car was not recovered at his instance.
28. According to the accused, he is a permanent resident of Vijay Nagar Colony, District Badaun, U.P. He is running a shop there. He was lifted from his residence and framed in this case. He stated that no recovery was effected from his possession and the alleged contraband was planted upon him. The entire writing work was done in the police station.
His signatures were obtained on some blank papers, written documents and printed proformas. He stated that police witnesses deposed against him being police officials and interested witnesses.
29. The accused examined his mother Smt. Surajmukhi as DW-1 and his father Sh. Ram Khilawan Gupta as DW-2. According to the defence witnesses, on 11.07.2009 at about 4.30 p.m., three police officials alongwith one accused visited their house and asked about their son Sarvesh. They disclosed the identity of their son Sarvesh to them and thereafter, they had taken away the accused with them stating that they were police officials of Delhi Police and they would release their son after some interrogation. On the next day, DW-2 Sh. Ram Khilawan came to Delhi and found the accused in police custody at police station Harsh Vihar. According to them, police officials had taken their signatures on some blank documents.
FIR No. 135/2009 State Vs. Sarvesh Kumar Gupta Page No. 8/2430. I have heard Sh. I.H. Siddiqui, Ld. Addl. PP for the State and Sh. G.S. Singh, Advocate for the accused and carefully considered the material on record.
31. Ld. Addl. PP for the State submitted that the prosecution has proved compliance to the provision of section 50 of the NDPS Act. He submitted that accused was duly communicated his legal right to be searched in the presence of a Gazetted Officer or a Magistrate, if he desired. He submitted that provision of section 42 of the NDPS Act is not applicable as the recovery was effected from a public place and not from a conveyance, dwelling house or an enclosed space. He submitted that section 43 of the NDPS Act is not applicable to the recovery from the accused at Bank Colony, Bus Stop, Wazirabad Road, Delhi. He submitted that the prosecution has examined the recovery witnesses. He submitted that there is no blemish in their depositions. He submitted that they have proved recovery of smack from the possession of the accused as well as from his residence pursuant to disclosure statement. He submitted that depositions of recovery witnesses are cogent, consistent and truthful. He submitted that the defence has not been able to elicit any contradiction much less than material contradiction in their depositions. He submitted that delay of 14 days in sending sample parcel to FSL is not fatal as the prosecution has proved link evidence in the form of PW-5 HC Sandeep Tyagi, MHC (M), PW-7 Ct. Satender and PW-10 Ct. Vineet Kumar, Sample depositors.
FIR No. 135/2009 State Vs. Sarvesh Kumar Gupta Page No. 9/2432. Ld. Addl. PP for the State further submitted that the sample parcels were intact till it remained in their custody. He submitted that FSL reports Ex.PW9/X and Ex.PW9/Y further corroborate that the sample parcels were not tampered as it records that seals were found intact and tallied with the forwarding letter (form FSL). He submitted that FSL reports show the presence of diacetylmorphine in the sample parcels. He submitted that the prosecution has been able to prove recovery of illicit smack from the possession of the accused.
33. In a nut-shell, salient arguments of the defence contained in written arguments are as under:
(a) Provisions of Section 42 and 50 of the NDPS Act have not been complied with.
(b) Provision of Section 57 of the NDPS Act has not been complied with.
(c) Public witness namely Satpal (PW-1) has not supported the case of the prosecution.
(d) There is un-explained delay of 18 days in sending sample parcels to FSL for chemical examination.
(e) Notice U/sec. 50 of the NDPS Act Ex.PW2/A does not bear signature of PW-1 Satpal/public witness.
(f) PW-9 ASI Raghu Raj has not disclosed regarding the seal having the impression 'JPY' which was used by him for sealing the cloth parcels in Bareilly, as alleged by him.
(g) No public witness or owner or any neighbour was associated at the time of search and seizure in Bareilly.
(h) There is no arrival or departure entry in any police station in Bareilly, U.P.
(i) No police official from the concerned police station in Bareilly was associated or informed about the recovery.
(j) There is no site plan of the house from where smack was recovered.
(k) There is no departure entry or arrival entry of the police team regarding their raid in Bareilly.FIR No. 135/2009 State Vs. Sarvesh Kumar Gupta Page No. 10/24
34. On thoughtful consideration of the matter in the light of the evidence, oral and documentary, and arguments addressed at the bar, issue-wise is finding as under:
Non-compliance of section 42 of the NDPS Act
35. According to PW-11 SI Pratap Singh, he received a secret information at 2.00 p.m. He conveyed the secret information to PW-12 Insp. Sunder Lal Parashar. He reduced the secret information into writing vide DD No. 11-A Ex.PW11/A at 2.15 p.m. It is therefore evident that PW-11 SI Pratap Singh had prior information that the accused would be coming at Bank Colony, Bus Stop, Wazirabad Road at 3.00 p.m. alongwith smack. It is not a case of chance recovery. Therefore, provision of section 42 of the NDPS Act would apply.
36. I am further fortified in my opinion by judgment in 'Om Prakash v. State' Crl. A. No. 453/2014 decided on 23.05.2014. Hon'ble Delhi High Court, while dealing with an identical contentions, held as under:
"74.....However, where the raiding officer proceeds to a public place on the basis of prior information which he has recorded in writing, then the question of applicability of section 43 would not arise....."
37. PW-11 SI Pratap Singh did not send the secret information in writing to the senior officers of police within 72 hours and as such, there is total non-compliance of mandatory provision of section 42 of the NDPS Act.
FIR No. 135/2009 State Vs. Sarvesh Kumar Gupta Page No. 11/2438. According to PW-9 ASI Raghu Raj, Investigating Officer, he recorded disclosure statement Ex.PW2/E of the accused wherein he disclosed that he can get the smack and the material used for preparation of smack from his room in Bareilly. However, PW-9 ASI Raghu Raj Singh did not send the secret information into writing to senior officers of police and as such, he has also violated provision of Section 42 of the NDPS Act.
39. Effect of total non-compliance of section 42 of the NDPS Act was dealt in 'Karnail Singh vs. State of Haryana' reported in (2009) 8 SCC 539 as under:
"17.....
(d).....But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of section 42 of the Act....."
Non-compliance of section 50 of the NDPS Act
40. As already observed above, PW-11 SI Pratap Singh had prior information. He reduced the secret information into writing vide DD No. 11-A Ex.PW11/A. He conveyed it to PW-12 Insp. Sunder Lal Parashar through telephone. He constituted the raiding team. He apprehended the accused alongwith a black colour polythene. He had given a notice U/sec. 50 of the NDPS Act and carbon copy thereof is Ex.PW2/A. The recovery was effected pursuant to a secret information. It is not a case that the contraband was recovered during the course of investigation or routine checking.
FIR No. 135/2009 State Vs. Sarvesh Kumar Gupta Page No. 12/2441. In 'Gurjant Singh @ Janta vs. State of Punjab', Criminal Appeal No. 1868/2013 decided on October 28, 2013; the appellant who was driving a tractor containing contraband was apprehended by a police team present at a point in connection with nakabandi. Recovery officer checked the trolley of the tractor and he found three gunny bags lying inside the trolley, and he intended to search the gunny bags as he suspected some incriminating article in the gunny bags. Recovery officer informed the appellant that, if he so desired, the search could be conducted in the presence of a Gazetted Officer or a Magistrate. The trial court was of the view that there was no necessity to comply with Section 50 of the NDPS Act and on that basis did not go into the question of compliance of Section 50 of the NDPS Act. In appeal, High Court confirmed the conviction and sentence. The matter reached to the Supreme Court. Hon'ble Supreme Court held as under:
"16. If the ratio of the said decision had been properly understood, the flaw committed by the trial court and as confirmed by the High Court in our considered opinion would not have arisen. The distinct feature in the case on hand was that on the date of occurrence i.e. on 04.04.1996 at 00.15 am, the police party headed by PW-6, accosted a tractor trolley coming from the side of Village Ugrahan, which was stopped by him and that when the driver after stopping the tractor tried to escape was apprehended by the police team. The most crucial aspect of the case was that PW-6 noticed three gunny bags lying in the tractor of the appellant and felt that some incriminating substance was kept in those gunny bags. PW-6, therefore, took the view that before effecting search of the gunny bags, the necessity of affording an opportunity to the appellant to conduct the search in the presence of a Gazetted Officer or a Magistrate FIR No. 135/2009 State Vs. Sarvesh Kumar Gupta Page No. 13/24 was imperative. In other words, after noticing three gunny bags, PW-6, as an investigating officer, felt the need to invoke the provisions of Section 50 and thereby provide an opportunity to the appellant for holding any search in the presence of a Gazetted Officer or a Magistrate. When once PW-6 could assimilate the said legal requirement as stipulated under Section 50 of the NDPS Act, as fail to understand as to how principle No. 1 in paragraph 25 of the decision reported in Balbir Singh (supra) could be applied. Unfortunately, the trial court failed to understand the said principle set out in Balbir Singh (supra) in the proper perspective while holding that neither Section 42 nor Section 50 was attracted to the facts of this case.
17. On the other hand even according to the prosecution, namely, the investigating officer himself, i.e. PW-6, a search was required after apprehending the appellant alongwith the tractor and the gunny bags and such search had to be necessarily conducted in accordance with Section 50 of the NDPS Act. It was further the case of the prosecution that such a step was pursued by calling upon the appellant to exercise his opinion and after affirmatively ascertaining whether he wanted any search to be conducted in the presence of the Gazetted Officer, only then PW-3 was summoned, in whose presence the search operation was held. Therefore, the conclusion of the trial court in having held that Section 42 and 50 were not applicable to the case on hand was a total misunderstanding of the legal provisions in the light of the facts placed before it and consequently the conclusion arrived at for convicting the appellant was wholly unjustified."
42. In State of Punjab v. Balbir Singh, (1994) 3 SCC 299; Hon'ble Supreme Court held as under:
"25. (1) If a police officer without any prior information as contemplated under the provisions of the NDPS Act makes a search or arrests a person in the normal course or investigation into an offence or suspected offences as provided under the provisions of CrPC and when such search is completed at that stage Section 50 of the NDPS Act would not be attracted and the question of complying with the requirements thereunder would not arise....."FIR No. 135/2009 State Vs. Sarvesh Kumar Gupta Page No. 14/24
43. Delhi High Court followed the above judgment in 'Rakesh @ Shankar v. State', 2014 [1] JCC [Narcotic] 13;
44. Therefore, provision of section 50 of the NDPS Act is applicable.
45. PW-11 SI Pratap Singh was the In-charge of the raiding team. He deposed in his statement as under:
"I also told him that his search is to be conducted and if he wants his search can be conducted in the presence of a Gazetted Officer or a Magistrate. I also offered the search of the raiding team members to him, prior to the search of the accused but the accused refused all the offers and thereafter, I served a notice U/sec. 50 of the NDPS Act upon the accused Sarvesh Kumar, who is present in the Court today."
46. It was a mere information or an option to the accused rather than communication of a legal right as required U/s. 50 of the NDPS Act.
47. In Myla Venkatishwarlu Vs. the State of Andhra Pradesh, Crl. A. No. 611 of 2012, decided on 04.04.2012; Hon'ble Supreme Court acquitted the appellant for breach of Section 50 of the NDPS Act. In the said case, the police had prior information about illegal sale of ganja at a particular place and thereafter, police team apprehended appellants and recovered contraband from their pockets. During the trial, members of the police team deposed as under:-
"PW-1 PC Shaik Kasim, who had apprehended the appellant, stated that Circle Inspector of Police asked them whether they wanted any an other gazetted officer for their search and seizure in addition to him to which they replied that they did not want any other gazetted officer and the checking by the Circle FIR No. 135/2009 State Vs. Sarvesh Kumar Gupta Page No. 15/24 Inspector of Police was sufficient for them. Thereafter, the Circle Inspector of Police checked their pockets and recovered ganja packets.
PW-2 SI Nageshwar Rao was in the police party. He stated that before conducting the search, the Circle Inspector of Police asked the appellants about the intention to have another gazetted officer and they replied that they do not want any other gazetted officer for their search and seizure. Thereafter, the search was conducted and ganja packets were recovered from their possession."
Apex Court held that from evidence of PW-1 and PW-2, it was clear that the appellants were not communicated their right to have search conducted in the presence of a Magistrate or a Gazetted officer.
48. In Nirmal Singh Pehlwan @ Nimma Vs. Inspector, Custom, Customs House, Punjab, Crl. No. 1857 of 2010, Hon'ble Supreme Court of India after considering the evidence of recovery officer observed as under:-
".....We have accordingly gone through the evidence of PW-4 Prem Singh. He did not utter a single word as to whether he had informed the appellant of his right and he merely took his option as to whether he would like to be searched before a Gazetted Officer or a Magistrate as noted in Ex.P.A. In the light of the judgment in Vijaisingh's case (supra) we find that there has been complete non-compliance with the provisions of Section 50 of the NDPS Act."
49. In Ashok Kumar Sharma Vs. State of Rajasthan, Crl. A No. 817 of 2008, decided on 09.01.2013; Hon'ble Supreme Court considered deposition of In-charge, of raiding team i.e. Additional Superintendent of Police (Crimes), Jaipur City which is reproduced as under:-
FIR No. 135/2009 State Vs. Sarvesh Kumar Gupta Page No. 16/24"He was apprised while telling the reason of being searched that he could be searched before any Magistrate or any Gazetted Officer if he wished. He gave his consent in writing and said that I have faith on you, you can search me."
Hon'ble Supreme Court held as under"-
"8. The above statement of PW-1 would clearly indicate that he had only informed the accused that he could be searched before any Magistrate or a Gazetted Officer if he so wished. The fact that the accused persons has a right under Section 50 of the NDPS Act to be searched before a Gazetted Officer or a Magistrate was not made known to him. We are of the view that there is an obligation on the part of the empowered officer to inform the accused or the suspect of the existence of such a right to be searched before a Gazetted Officer or a Magistrate, if so required by him. Only if the suspect does not choose to exercise the right in spite of apprising him of his right, the empowered officer could conduct the search on the body of the person."
50. It is therefore clear that accused was not informed about his legal right to be searched in the presence of a Gazetted Officer or a Magistrate before subjecting him to personal search and therefore, there is non-compliance of mandatory provision of Section 50 of the NDPS Act and as such, it has rendered the recovery illegal.
51. It is further, apparent that accused was not communicated his legal right to be taken to the nearest Gazetted or the nearest Magistrate for his search.
52. This Court is deriving support in reaching to this conclusion from 'Om Prakash v. State' (supra), as under:
"80. The admitted position is that the notice under section 50 of the NDPS Act that was served to the Appellant did not mention that he could be taken to the nearest Magistrate or Police Station which had a Gazetted Officer....."FIR No. 135/2009 State Vs. Sarvesh Kumar Gupta Page No. 17/24
53. The prosecuting has failed to prove that the obligation U/s. 50 of the Act has been discharged statutorily. Effect of non-compliance of Section 50 of the NDPS Act
54. In 'Vijaysinh Chandubha Jadeja v. State of Gujarat reported as (2011) 1 SCC 609; it was held as under:
"22......We have no hesitation in holding that in so far as the obligation of the authorised officer under Sub- section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires a strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search."
Non-compliance of section 57 of the NDPS Act
55. PW-9 ASI Raghu Raj Singh investigated the case and made recovery from the premises of the accused in Bareilly. He has neither made report U/s. 57 of the NDPS Act regarding arrest of accused nor made report regarding recovery from premises of the accused Bareilly. Therefore, there was no occasion to send such report to senior officers of police. Therefore, there was no occasion for sending a report regarding search and seizure, within 48 hours, to his immediate superior official.
56. Though, provision of section 57 of the NDPS Act is directory and its violation would not ipso facto violate the trial. However, recovery officer cannot totally ignore this provision and such failure will have a bearing on appreciation of evidence regarding arrest of the accused or seizure of the articles. 'Gurbax Singh v. State of Haryana', AIR 2001 SC 1002.
FIR No. 135/2009 State Vs. Sarvesh Kumar Gupta Page No. 18/24Delay of 18 days in sending parcel for chemical analysis
57. The recovery of the contraband, according to the prosecution, was effected on 12.07.2009 and 13.07.2009. The sample parcels were sent to FSL for chemical examination after delay of about 18 days. Though, delay as such, cannot be fatal to the case of the prosecution. However, there are certain suspicious circumstances emerging in this case. In the presence of such suspicious circumstances, as discussed hereinafter, such delay can be held fatal to the case of the prosecution.
58. According to PW-11 SI Pratap Singh, In-charge of the raiding team, he had given Mark A and A-1 to the sample parcels and Mark B to the cloth parcel containing the remaining smack. According to ASI Raghu Raj Singh, he had given Mark B-1 and B-2 to the sample parcels and Mark B to the cloth parcel containing the remaining smack. It does not stand to reason as to why same mark was given to two different parcels recovered in the same case from two different places. PW-5 HC Sandeep Tyagi has not stated as to how he kept sample parcels having same mark in police malkhana so as to avoid its mixing.
59. According to PW-9 ASI Raghu Raj Singh, he directed PW-7 Ct. Satender to take sample parcels Mark A1 and A2 from MHC (M) and deposit with the FSL, Rohini. However, no such parcel Mark A2 was prepared by PW-11 SI Pratap Singh. According to FSL report Ex.PW9/Y, two sealed parcels Mark A and A1 were received on 29.07.2009.
FIR No. 135/2009 State Vs. Sarvesh Kumar Gupta Page No. 19/2460. PW-5 HC Sandeep Tyagi, MHC (M) stated that on 29.07.2009, as per the direction of SHO, he handed over the sample parcel alongwith form FSL and other documents to Ct. Satender vide RC No. 48/21 Ex.PW5/C.
61. Road Certificate Ex.PW5/C mentions that the two sealed parcels were bearing Mark A.
62. According to PW-9 ASI Raghu Raj Singh, he sealed the sample parcels and the parcel containing the remaining smack with the seal of 'JPS'. However, he has not mentioned as to from whom he had arranged that seal.
63. According to PW-9 ASI Raghu Raj Singh, he directed PW-10 Ct. Vineet to take the sample parcels Mark B1, B2, C1, C2, D1, D2, D3, D4 and Mark E from malkhana to deposit at FSL, Rohini. As such, he sent 9 parcels to FSL, Rohini through PW-10 Ct. Vineet on 30.07.2009.
64. However, PW-5 HC Sandeep Tyagi, MHC (M) stated that he had sent 7 parcels to FSL, Rohini through PW-10 Ct. Vineet Kumar on 30.07.2009 vide RC No. 53/21.
65. According to PW-10 Ct. Vineet, he had taken 9 parcels sealed with the seal of 'SLP' and 'JPS' alongwith form FSL from MHC (M) vide RC No. 53/21 Ex.PW5/F.
66. However, acknowledgement dated 30.07.2009 issued by FSL, Rohini Ex.PW5/G shows that 7 parcels were received on that day. RC No. 53/21 Ex.PW5/F also records this fact. FSL report Ex.PW9/X does not state that parcels bearing Mark B2, C2 or E were received on 30.07.2009.
FIR No. 135/2009 State Vs. Sarvesh Kumar Gupta Page No. 20/2467. According to PW-11 SI Pratap Singh, he handed over seal after use to public witness Satpal. He stated that he received back his seal from PW-1 Satpal in the late night.
68. There is no explanation why the signatures of PW-1 Satpal were not taken on cloth parcels by PW-11 SI Pratap Singh.
69. According to PW-11 SI Pratap Singh, he checked the powder with the field testing kit. However, no such register regarding issuance of any field testing kit to him produced.
70. According to PW-11 SI Pratap Singh, the recovered smack was weighed with a manual weighing scale. However, it has not been stated as to from where manual weighing scale and weights were arranged by him.
71. According to PW-9 ASI Raghu Raj Singh, he effected recovery and prepared cloth parcels in Bareilly. However, he has also not explained as to from where he arranged the weighing machine and weights.
72. In the presence of such circumstances, the process of drawing of sample parcels, preparation of cloth parcels and sealing thereof have come under cloud.
Discrepancies/lapses in the prosecution case
73. According to PW-11 SI Pratap Singh, he had given a notice U/s. 50 of the NDPS Act to the accused and carbon copy thereof is Ex.PW2/A. PW-2 HC Harender & PW-3 HC Upender stated in their depositions that original notice U/sec. 50 of the NDPS Act was recovered in personal search of the accused.
FIR No. 135/2009 State Vs. Sarvesh Kumar Gupta Page No. 21/2474. PW-5 HC Sandeep Tyagi stated that the original notice U/sec. 50 of the NDPS Act and other articles were deposited with him in the police malkhana. However, original notice U/sec. 50 of the NDPS Act was never produced before the Court.
75. PW-2 HC Harender stated that PW-9 ASI Raghu Raj Singh interrogated the accused and recorded his disclosure statement Ex.PW2/E and informed the senior officers about the disclosure statement. He stated that one Quallis vehicle was called at the spot and all of them went to Bareilly where accused Sarvesh Kumar took the police team to his house at Bareilly.
76. PW-3 HC Upender and PW-6 Ct. Kavinder have also stated to the same effect.
77. However, PW-9 ASI Raghu Raj Singh has a different story on this aspect. He stated that he interrogated the accused and arrested him vide arrest memo Ex.PW2/C and conducted his personal search vide Ex.PW2/D and in the personal search of the accused a carbon copy of the notice U/sec. 50 of the NDPS Act was recovered. In fact, original notice U/sec. 50 of the NDPS Act was given to the accused and carbon copy thereof was retained by PW-11 SI Pratap Singh.
78. PW-9 ASI Raghu Raj Singh further stated that thereafter, the accused was taken to the police station where he made disclosure statement Ex.PW2/E. He stated that as per the disclosure statement of the accused, he was taken to Bareilly.
FIR No. 135/2009 State Vs. Sarvesh Kumar Gupta Page No. 22/2479. There is contradiction regarding the place of recording of disclosure statement.
80. There is contradiction as to whether PW-9 ASI Raghu Raj Singh alongwith raiding team went to Bareilly directly from the spot or from the police station.
81. PW-12 Insp. Sunder Lal Parashar stated that on 13.07.2009, accused Sarvesh Kumar was taken to Bareilly by PW-9 ASI Raghu Raj Singh and he returned from there at about 2.00 p.m.-2.30 p.m.
82. PW-9 ASI Raghu Raj Singh, in his cross-
examination had admitted that he had not obtained any permission in writing from his senior officers regarding raid at Bareilly. It does not stand to reason as to how PW-9 ASI Raghu Raj Singh conducted a raid at Bareilly without permission of his senior officers.
83. PW-9 ASI Raghu Raj Singh admitted in his cross- examination that he had not recorded his presence at local police station at Bareilly.
84. According to PW-9 ASI Raghu Raj Singh, he had gone to Bareilly in a private vehicle. Neither the registration number of the said vehicle nor any receipt pertaining to its booking for raid at Bareilly produced by him.
85. There is no site plan of the place of recovery of the contraband in Bareilly.
86. PW-9 ASI Raghu Raj Singh did not record the statement of the landlord of the house or any neighbour.
FIR No. 135/2009 State Vs. Sarvesh Kumar Gupta Page No. 23/2487. There is no evidence that the alleged recovery from a premises at Bareilly was at the instance of the accused. There is no evidence to connect the accused to the smack allegedly recovered from a room in Bareilly. There is no evidence that accused was residing there as a tenant or in exclusive possession of the said room in Bareilly.
88. The prosecution has not proved on record arrival and departure entry of PW-9 ASI Raghu Raj Singh and PW-11 SI Pratap Singh. There is no investigation regarding the source and destination of supply.
89. In view of non-compliance of section 42 and 50 of the NDPS Act, the afore-said discrepancies/lapses in the prosecution case and un-explained delay of 18 days in sending sample parcel to FSL, the prosecution can be said to have miserably failed to prove its charge against accused Sarvesh Kumar Gupta.
90. Accordingly, accused Sarvesh Kumar Gupta is hereby acquitted from offence U/s. 21 (c) of the NDPS Act.
Announced in the open court SANJAY SHARMA th on this 29 day of November, 2014. Special Judge NDPS (North-East) ASJ:KKD Courts, Delhi.
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