Delhi District Court
State vs Javed @ Sonu on 27 September, 2023
IN THE COURT OF VISHAL GOGNE
ADDL. SESSIONS JUDGE02 (EAST)
SPECIAL JUDGE (NDPS) ACT
KARKARDOOMA COURTS, DELHI
S.C. No. 883/2016
FIR No.02/2015
PS Crime Branch
U/s 21 NDPS Act
State
Versus
Javed @ Sonu
S/o Sh. Khushi Mohd.
R/o Purani Salai ki Puliya
Gali No.2, PS Ramgarh
District Firozabad
Uttar Pradesh
Presently residing at
Third Floor, Jagatpur Extension
Wazirabad, Delhi ........... Accused
Date of Institution : 27.04.2015
Reserved for Judgment on : 26.09.2023
Judgment pronounced on : 27.09.2023
JUDGMENT
1. The accused has faced trial under section 21 (c ) of the NDPS Act for alleged possession of 1 kg of heroin purportedly carried by him in two plastic bags weighing 700 gms and 300 gms respectively on 03.01.2015. The accused was FIR No.02/2015 State Vs. Javed @ Sonu Page No.1 of 29 apprehended near the bus stand Lalita Park, Laxmi Nagar, Delhi at about 11:45 am upon purported secret information received by the Narcotic Cell.
2. Since the accused absconded during the course of trial while evidence was underway, he was declared a proclaimed person under section 82 Cr. PC and upon being apprehended subsequently, charge was additionally framed against him under section 174A IPC.
3. The accused pleaded not guilty to both articles of charge.
4. The allegations in the chargesheet emanate from the complaint made by SI Karambir (PW1). Since the contents of his complaint/rukka (PW1/F) which formed the basis for the FIR (Ex. PW4/A) were largely reiterated by him during his deposition and the allegations were also substantially repeated by the other members of the police raiding team namely ASI Sudhir Kumar (PW2) and HC Kanwal Singh (PW3), the same shall be discussed as a summary of their deposition in court as under.
5. PW1, PW2 and PW3 similarly deposed that an information was received by PW1, who was working as a Sub Inspecptor at Narcotic Cell, Kotwali, Daryaganj, at about 10:00 am on 03.01.2015 from a secret informer to the effect that one Javed, a resident of Mandoli, who had been working as a police informer was now engaged in supplying heroin in Delhi and adjoining places in the garb of being an informer. The secret FIR No.02/2015 State Vs. Javed @ Sonu Page No.2 of 29 informer purportedly informed PW1 that Javed would be reaching Lalita Park bus stand between 11:30 am to 12:00 noon for supplying heroin to someone and could be apprehended if a raid was conducted.
6. PW1 produced the secret informer before Inspector Vivek Pathak who also interrogated the secret informer and after being satisfied about the information informed ACP Ravinder Kumar Tyagi. The ACP telephonically instructed for the raid to be conducted. PW1 recorded DD No. 10 regarding the receipt of the secret information and proved the carbon copy of the same dated 13.01.2015 as Ex. PW1/A. This copy was stated to have been submitted to inspector Vivek Pathak. PW1 now constituted a raiding team comprising himself, HC Sudhir and HC Kanwar (PW2 and PW3) on the instructions of inspector Vivek Pathak.
7. The court would record here that Inspector Vivek Pathak, who deposed as PW12, confirmed during his examination in chief that such secret information had indeed being received by him from PW1 on 03.01.2015 at about 10:15 am and that he had himself interrogated the informer to satisfy himself regarding the credibility of the information. PW12 further stated that he had informed ACP Ravinder Kumar Tyagi regarding this information who then telephoncially directed him to conduct a raid. PW12 also identified his signatures on the DD entry Ex. PW1/A and corroborated PW1 in deposing that upon his FIR No.02/2015 State Vs. Javed @ Sonu Page No.3 of 29 directions the latter had constituted a raid party comprising HC Sudhir, HC Kanwar and a driver namely HC Mahesh.
8. Continuing now with the account given by PW1, PW2 and PW3, the raiding team comprising the three police officials was briefed by PW1, who also recorded a departure entry through DD No. 11 at about 10:45 am (Ex. PW1/B) as they headed for the spot. The IO was purportedly carrying his field testing kit and electronic weighing machine in the IO bag. The police team left in a government vehicle bearing No. DL 1CM 4228 driven by HC Mahesh and reached near Lalita Park bus stand at about 11:15 am. Public persons who were requested on the way, at the Lal Quila parking gate, by the IO to join the raiding party refused to do so. Similarly, public persons refused to join investigation when asked at the Ramesh Park bus stand.
9. The IO again briefed the raiding team when they reached near the spot and took positions. At about 11:45 am, a person bearing a black jacket was seen coming from the direction of the red light at Shakarpur and was identified as Javed by the secret informer. The secret informer now left the spot. Javed was seen to be carrying a polythene containing some material in his left hand and he stood waiting for some one about 10 meters ahead of the bus stand. After about 45 minutes, as Javed started moving towards the direction from which he had come, the police team chased and apprehended him. The FIR No.02/2015 State Vs. Javed @ Sonu Page No.4 of 29 government vehicle was also called to the spot with its driver. On being apprehended, the suspect revealed his name as Javed @ Sonu, resident of Mandoli, Delhi.
10.PW1 informed him that since his search was to be conducted, he could opt for a search before the Gazetted Officer or a Magistrate. The right of the accused to be searched in such presence was conveyed to him and he was also made to understand the meaning of Gazetted Officer or Magistrate. The notice under section 50 NDPS Act was accordingly served upon the accused. The accused, however, refused the option to be searched in the presence of a Gazetted Officer or a Magistrate. PW1 proved the original notice as Ex. PW1/C and the refusal of the accused as Ex. PW1/B.
11.The three police witnesses similarly stated that 78 public persons who were again asked to join proceedings near the place of recovery from the accused refused to join the same.
12.The ensuing search of accused Javed yielded one white polythene from his left hand. This polythene was found to contain two transparent polythene packets containing brown powder. Both these packets had been tied with a rubber band and upon opening the same, the brown powder was taken out and tested with a field testing kit. This test revealed the contents to be heroin. Upon being weighed, the heroin in the bigger polythene packet was found to be 700 gms whereas the second packet contained 300 gms of the same substance. The FIR No.02/2015 State Vs. Javed @ Sonu Page No.5 of 29 two packets were respectively marked as Mark A and Mark B.
13.PW1 then took two samples of 5 gms each from the smaller polythene and provided Marks A1 and A2 to them. These were sealed with the seal "4 BPS NB DELHI". Similarly two samples of 5 gms each were taken from the bigger polythene Mark B and identified as B1 and B2 respectively. These were also sealed with the seal of "4BPS NB DELHI". The packets Mark A and B were then converted into a parcel, sealed with the same seal and marked as C.
14.PW1, PW2 and PW3 also stated in unison that PW1 had filled up the FSL form at the spot and affixed the same seal on this form. Also, that the five parcels and the FSL form were taken into possession through seizure memo Ex. PW1/E. The seal was then handed over to PW3.
15.The rukka prepared by PW1 was proved by him as Ex. PW1/F. This rukka, alongwith the five parcels, carbon copy of the memo and FSL form were handed over to HC Sudhir for the rukka to be taken to the Duty Officer and the remaining articles to be taken to the SHO Crime Branch. HC Sudhir left the spot at about 3:15 pm in a government vehicle for the crime branch police station.
16. PW1 and PW3 further deposed that about 7:15 to 7:20 pm, the second IO viz ASI Narender (PW5) came to the spot in a government vehicle. PW1 now handed over custody of the FIR No.02/2015 State Vs. Javed @ Sonu Page No.6 of 29 accused and the documents to PW5 who prepared the site plan Ex. PW1/G at the behest of PW1. ASI Narender also recorded the statement of PW3 and formally arrested the accused at about 9:15 pm through arrest memo Ex. PW1/H. His personal search memo was proved by PW1 and PW3 as Ex. PW1/H1 while his purported disclosure statement was Ex. PW1/H2.
17. The original notice under section 50 NDPS Act was stated by PW1 and PW3 to have been recovered from the personal search of the accused alongwith Rs. 1100/ in cash. This notice was proved as Ex. PW1/L by these two witnesses. The police team now returned to the Narcotic Cell, Kotwali alongwith the accused where ASI Narender produced the accused before Inspector Vivek Pathak. Inspector Vivek Pathak (PW12) satisfied himself regarding the arrest and the statement of the first IO (PW1) came to be recorded by the second IO (PW5) at the Narcotic Cell office under section 161 Cr. PC.
18. The court would again briefly relate the above account to the deposition of Inspector Vivek Pathak (PW12) who similarly deposed that at about 12:45 am in the intervening night of 03.01.2015 and 04.01.2015, ASI Narender had produced accused Javed before him and also recorded the statement between 1.10 to 1.30 am on 04.01.2015.
FIR No.02/2015 State Vs. Javed @ Sonu Page No.7 of 29
19. PW12 also corroborated PW1 in stating that a special report under section 57 NDPS Act had been produced by PW1 before him regarding the apprehension of the accused and recovery of contraband before him. This report was proved by both PW1 and PW12 by identifying their signatures on the same as Ex. PW1/J.
20. PW1 next stated that he joined investigation with ASI Narender on 06.01.2015 and that the latter had recorded the supplementary disclosure statement of the accused as Ex. PW1/K. The parcels Mark A1 and B1 containing transparent polythene with brown coloured powder inside them and having the seal of 4BPS NB DELHI were identified by PW1. PW2 and PW3 as P1 and P2 whereas the sealed parcels marked A1 and A2 were proved as P3 and P4. The polythenes marked A and B were proved by PW1 and PW2 as Ex. P5 and P6 respectively. The next witness in the sequence of investigation was the second IO namely ASI Narender (PW5) who corroborated the version of PW1 (Ist IO). PW2, PW3 and PW5 asserted that on 03.01.2015, PW2 came to the Narcotic Cell and handed over the copy of the FIR and asal tehrir to him and that PW5 then went to the spot at Lalita Park bus stand with driver HC Mahesh in government gypsy during DL 1 CM 4228. Also, he had recorded the departure entry through DD No. 20 Ex. PW5/A. (the aspect of section 50 and site plan and arrest memo have FIR No.02/2015 State Vs. Javed @ Sonu Page No.8 of 29 been noted earlier).
21. PW5 also related that he had taken the accused before Inspector Vivek Pathak and recorded his statement alongwith statements of PW1, PW2 and PW3 apart from special report under section 57 NDPS Act (Ex. PW5/C).
22. PW5 further deposed that a raid was conducted at the rented accommodation of the accused at Harijan Basti, Mandoli, PS Harsh Vihar which, however, did not lead to any recovery. PW5 also stated that he had recorded a supplementary disclosure statement of the accused (Ex. PW1/K).
23. The Duty Officer who had recorded the FIR deposed as PW
4. PW4 stated that the rukka was produced before her by HC Sudhir (PW2) and the contents dictated to her by the computer operator were registered as the FIR. The copy of the FIR was proved as Ex. PW4/A whereas the endorsement on the rukka was proved by PW4 as Ex. PW4/B. PW4 proved the certificate under section 65 B Indian Evidence Act as Ex. PW4/C and the DD entry No.22 regarding the same as Ex. PW4/D.
24. The MHCM who received the sealed parcels comprising the case property from Inspector Manjeet Tomar (PW11) deposed as PW6. He also proved the entry in register No.19 regarding the deposit of the articles of personal search including notice under section 50 NDPS and Rs. 1100/ in cash by ASI Narender (PW5). The two entries in register FIR No.02/2015 State Vs. Javed @ Sonu Page No.9 of 29 No.19 were identified as Ex. PW6/A and Ex. PW6/B respectively.
25. PW6 next stated that he had handed over two sealed parcels mark A1 and B1 sealed with the seal of 4BPS NB DELHI to constable Shani Kumar vide road certificate No. 2/21/15 for being deposited at FSL Rohini. The road certificate was proved as Ex. PW6/C while the copy of the receipt was Ex. PW6/D. PW6 lastly deposed that on 10.04.2015, the FSL result, the FSL form and the two parcels were received in sealed condition by him through Constable Nitya Nand and deposited in the malkhana.
26.The prosecution had examined three witnesses under section 299 Cr. PC while the accused was absconding. These witnesses were constable Shani Rathi, Inspector Vivek Pathak and retired ACP Ravinder Kumar Tyagi (examined as PW7, PW8 and PW9 under section 299 Cr. PC) and were recalled as witnesses after the accused was apprehended. They were examined afresh as PW11, PW12 and PW9 respectively.
27.PW11 deposed that being posted as Constable at Narcotics Cell, Crime Branch on 06.01.2015, he had taken two parcels Mark A1 and Mark B1alongwith FSL form in duly sealed condition and other documents from MHC(M) Jag Narayan and deposited the same at FSL Rohini against a receipt. Further, that he had handed over the receipt and acknowledgment to the MHC(M). Also, that while in his FIR No.02/2015 State Vs. Javed @ Sonu Page No.10 of 29 custody, the case property remained intact and was not tampered with.
28.The deposition of PW12 has already been cited in the preceding part of this judgment.
29.The documents to be proved by ACP Ravinder Kumar Tyagi (PW9) were first cited by PW10.
30. PW10 (Const. Amit) from the office of ACP Narcotic Cell, Kotwali Darya Ganj produced the original diary register for the year 2015 alongwith DD No. 10 dated 03.01.2015 and the report under section 57 NDPS Act. He proved the said DD as Ex. PW10/B and identified the signature of the ACP upon the same as Ex. PW10/B while the copy of the diary register containing the said entry was Ex. PW10/A. The two reports under section 57 NDPS Act prepared by SI Karambir Singh (PW1) and ASI Narender (PW5) were proved as Ex. PW10/C and Ex. PW10/D respectively by identifying the signatures of the ACP on the same.
31.The ACP (PW9) identified his signatures on documents Ex. PW10/A, Ex. PW10/C and Ex. PW10/D to prove them afresh.
32.PW1 had earlier deposed that he had prepared the special report under section 57 NDPS Act regarding the apprehension and recovery of contraband from the accused and submitted the same to Inspector, Narcotics Cell. Similarly, PW5 had deposed that he had prepared the report under section 57 NDPS Act regarding the arrest of the accused. FIR No.02/2015 State Vs. Javed @ Sonu Page No.11 of 29
33.The SHO of the Crime Branch Station on 03.01.2015 namely Inspector Manjeet Tomar deposed as PW11 (wrongly numbered as another witness examined earlier, namely Shani Rathi, was PW11) to state that at about 4:35 pm, HC Sudhir, Narcotics Cell Crime Branch came to his office and handed over five parcels marked as A1, A2, B1, B2 and C and FSL form duly sealed with the seal of 4B PSNB alongwith carbon copy of seizure memo. Also, that he had put his seal of MT on the parcels and FSL form. All the pulandas were marked as FIR No. 2/2015 and he signed all the pulandas. He then called MHCM HC Jag Narayan alongwith register no.19 and handed over all the parcels and documents to MHCM Jag Narayan who made the relevant entries in register no.19. He next signed register No.19 and got deposited the same in the malkhana. DD entry no.23, recorded by him at 5.15 pm in this regard was tendered in evidence as Ex. PW11/A.
34.The second component of the evidence led by the prosecution related to the charge under section 174A IPC.
35.While a witness inter alia the Ahlmad of the ld Predecessor of this court had been cited as a witness to prove the order dated 04.09.2018 wherein the accused was declared a proclaimed person, this order was admitted by the accused under section 294 Cr. PC and the witness was not required to be examined. The prosecution did, however, examine two witnesses who arrested the accused on 20.04.2022 after he had remained FIR No.02/2015 State Vs. Javed @ Sonu Page No.12 of 29 absconding subsequent to 04.09.2018. These witnesses were PW13 and PW14 (SI Ram Kishan and SI Sudhir Kumar). PW13 deposed that he had formally arrested accused Javed @ Sonu at Tihar Jail, Delhi on 20.04.2022 after seeking permission from the Superintendent of the said jail. During interrogation, PW13 learnt that the accused had absconded after he had been granted parole for 15 days from the court. The arrest memo and disclosure statement of the accused were proved as Ex. PW13/A and Ex. PW13/B respectively. PW14, who accompanied PW13 on 20.04.2022, corroborated his deposition and also proved the arrest memo and disclosure statement.
36. During the course of final arguments, the ld. prosecutor relied upon the testimony of the recovery witnesses to pray for a finding of a guilt against the accused under section 21 (c) NDPS Act. It was also submitted that the factum of the accused being an absconder was a matter of judicial record and that he was thus liable to be convicted also under section 174 A IPC.
37.In response, the ld counsel for the accused agitated that the proceedings related to the alleged recovery of heroin from the accused suffered from non compliance with the statutory mandate of section 50 NDPS Act and that no finding of guilt could obtain when a mandatory provision had been flouted. It was further submitted that the investigating officer had FIR No.02/2015 State Vs. Javed @ Sonu Page No.13 of 29 deliberately avoided joining public witnesses to the proceedings as the same were contrived against the accused. Also, that the report from the FSL did not find any chemical element of heroin in the bulk of the recovery.
38.The court has considered the evidence on record and the submissions made by the prosecution as well as the defence.
Charge under section 21(c) NDPS Act Notice under section 50 NDPS Act
39. A large measure of the arguments addressed by the ld counsel for the accused focused on the decision of the Hon'ble High Court of Delhi in Mohd. Jabir vs State Bail application No.1725/2022 dated 28.03.2023. The ld. Counsel pleaded parity both on the facts of Jabir as well as the legal requirements for compliance with section 50 enumerated in the said decision. It was agitated that the notice served upon the accused was invalid in law as it did not offer for the search to be in the presence of the 'nearest' Gazetted Officer/Magistrate but instead referred to 'any' Gazetted Officer/Magistrate.
40.For greater clarity, the relevant portion of section 50 NDPS Act is reproduced below.
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 FIR No.02/2015 State Vs. Javed @ Sonu Page No.14 of 29 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.
41.Section 50 is undoubtedly the soul of the statutory protections afforded to an accused person under the NDPS Act. The provision of a search before certain government officers offers a measure of credibility to allegations of recovery of prohibited drugs. Notwithstanding the presumptions operating against the accused under the scheme of the NDPS Act, the presumption of innocence can never be detached from an accused and it is to this end that the law seeks to ensure independent verification of alleged recoveries from persons accused of drug related offences.
42.Besides, multiple decisions of the Hon'ble Supreme Court, most notably in Vijaysinh Chandubha Jadeja vs. State of Gujrat (2011) 1 SCC 609 have held the requirements of section 50 NDPS Act to be mandatory in nature. Non compliance with the mandate of section 50 may therefore entail acquittal upon trial.
43.Adverting now to the comparison with the facts and discussion in Jabir, the notice under section 50 NDPS Act (Ex. PW1/C) informed the accused that he was suspected to be carrying heroin for supply to someone and that there was a FIR No.02/2015 State Vs. Javed @ Sonu Page No.15 of 29 possibility of the same being recovered from him. Further, that his search was required for the said purpose. However, the notice then gave him the option of being searched before 'any' Gazetted Officer or Magistrate. The relevant extract from the notice (Ex. PW1/C), in Hindi, is reproduced below:
अअपकक तलअशक सस पहलस अअपकअ यह कअनन नक अधधकअर हह धक अअप अपनक तलअशक धकसक रअज पतधरत अधधकअरक यअ मधजसटरस ट कस समक करवअ सकतस हह ।
44.It is seen that much like the facts of the decision in Jabir, the notice under section 50 served upon the present accused namely Javed @ Sonu also records a option to him for being searched before 'any' Gazetted Officer or Magistrate. It is precisely this lapse which was deprecated in the decision in Jabir where the Hon'ble High Court found the notice under section 50 (in the facts of the said case) to be invalid for having use the word 'any' rather than 'nearest' in the notice under section 50. The said course adopted by the IO was found to be against the legislative mandate and intentional use of the word 'nearest' rather than 'any' in section 50 NDPS Act.
45.The relevant observations from Jabir are reproduced below:
43. In my opinion, there is illegality in notice served U/s 50 NDPS Act dated 27.10.2020. The section 50 categorically mandates that where the accused requires a search, the search has to be done by nearest Gazetted Officer/nearest Magistrate.
44. However, the section 50 notice served upon the FIR No.02/2015 State Vs. Javed @ Sonu Page No.16 of 29 applicant and the coaccused informs incorrectly that they can be searched by any gazetted information/magistrate. This, in my opinion is where the violation of section 50 lies.
45. It is correct that both the accused persons were informed that of their rights regarding personal search but the same was not informed as per the strict provisions of section 50.
46.The Court finds that the strict mandate of section 50 has evidently been violated in the present case by the prospect of accused namely Javed @ Sonu being taken to 'any' rather than the 'nearest' Gazetted Officer or Magistrate.
47.The Court would also express that since the notice (Ex.
PW1/C) under section 50 served upon the present accused has been invalidated, his refusal (Ex. PW1/D) to be searched in the presence of a Gazetted Officer or Magistrate is irrelevant.
48.This aspect too was addressed in the decision in Jabir, where after discounting the validity of the notice under section 50 in the said facts, the Hon'ble High Court recorded that :
56. In the light of the above judgment and facts, I am of the view that the applicant's alleged refusal that he is unwilling to be searched is irrelevant. The notice under section 50 NDPS act itself is faulty in law.
Therefore, it cannot be said that accused's unwillingness to be searched in front of an officer who is a member of the raiding team is a voluntary expression of their desire for giving up their right to be searched. The notice of section 50 served to the applicant clearly violates the law and is a misdirection. As a result, I am of the opinion that the FIR No.02/2015 State Vs. Javed @ Sonu Page No.17 of 29 applicant was misled into believing that his search was to be before any gazetted officer and not the nearest. Further the fact was conducted before ACP Rich Pal is far from an independent search as ACP Rich Pal was part of the raiding team.
Opinion from the FSL
49.The court would not remain amiss in highlighting that it is not the infirmity in the notice under section 50 NDPS Act alone which has implored the court to doubt the recovery as alleged by the prosecution. The report from the FSL itself casts grave suspicion on the allegations of the recovery of heroin from the accused. The report of the chemical examiner from the FSL dated 27.03.2015 (Ex. PW5/D) had rendered opinion on the two samples collected from the respective polythene packets seized from the accused. These samples, sealed in two cloth parcels denoted A1 and B1, as deposed by PW1 (first IO) were examined by the Sr. Scientific Officer (Chemistry) FSL who rendered the following opinion in the report Ex. PW5/D:
11. RESULT OF EXAMINATION REPORT On Chemical, TLC & GCMS examinations (I) Exhibit 'A1' was found to 'Diacetylmorphine', '6 monoacetylmorphine', 'Diazepam', 'Dextromethorphan', 'Caffeine' & 'Acetaminophen'.
(ii) Exhibit 'B1' was found to contain
'Chlorphenamine', 'Dexchlorpheniramine' &
'lbuprofen'
(iii) The percentage of 'Diacetylmorphine' was found FIR No.02/2015 State Vs. Javed @ Sonu Page No.18 of 29 to be 3.6% in exhibit 'A1'.
50.This report conclusively ruled out the presence of diacetylmorphine in Ex. B1. Infact, Ex. B1 was found to contain three substances but not diacetylmorphine. Notably, diacetylmorphine is the chemical name of the drug heroin. While the ratio of diacetylmorphine in a seized drug is irrelevant in as much as it is the entire weight of the substance which is to be considered for determining commercial or small quantity, diacetylmorphine must at least be present in the seized quantity. The complete absence of diacetylmorphine in the sample weighing 5.7 gms (B1) taken from the bigger polythene packet (Mark B) allegedly seized from the accused, as deposed by PW1, negates the recovery of 700 gms of heroin out of the alleged quantity of 1 kg. Apparently, the accused was implicated for recovery of 1 kg of heroin when at least 700 gms or 70% of this quantity had no trace of heroine. The doubts on this component of the recovery (700 gms) brings the entire recovery of 1 kg of heroin, including the other component of 300 gms, into severe doubt.
51.The defence of the accused, projected through his detailed explanation towards the end of his statement under section 313 Cr. PC does form the context of the FSL report.
52.The said version of accused is highlighted below:
FIR No.02/2015 State Vs. Javed @ Sonu Page No.19 of 29 Q.19. Do you want to say anything more in your defence?
A. I was police informer and I was doing this work since 1995. Police had arrested many accused/drug dealers upon my information. I have been implicated in the present case by Insp. Kuldeep Yadav and Insp. Vivekanand Pathak due to his vengeance with me. I have been picked up/abducted from Income Tax Office, Ghaziabad by SI Karamveer, HC Sudhir, HC Kanwal forcibly and have been planted forged recovery of drugs/illegal contraband upon me. Abovesaid police officials had implicated me in the present case due to the enmity with SI Kuleep. I had been informer of SI Kuldeep since 2001. I had given many substantive/confidential informations to SI Kuldeep. SI Kuleep did not give me tip/amount upon the informations supplied by me. Due to this, I had complained ACP Sh. Mehar Singh, Narcotic Cell against SI Kuldeep and thereafter at the asking of ACP Mehar Singh, IO SI Kuldeep was forced to give my tip/amount (gupt Kosh). Thereafter, I started working for SI Brij Pal and helped him out in working out many cases and stopped giving secret information to SI Kuldeep. Due to this reason, SI Kuldeep was jealous of me. Thereafter, in the year 2014 SI Kuldeep became Inspector in the Narcotic Cell and I started giving information to Insp. Gade working in the same office, on which SI Kuldeep got angry with me and threatened me to falsely implicate in any matter. I went to Income Tax Office regarding the task assigned by Insp. Gade and from there I was lifted and falsely implicated in the present matter. I am not involved in present matter. Insp. Kuldeep falsely implicated me in various matters bearing FIR no. 2/2003 PS NCB, Darya Ganj, FIR no. 139/2020, PS NCB Daryaganj, FIR FIR No.02/2015 State Vs. Javed @ Sonu Page No.20 of 29 no. 103/2020 PS NCB, Darya Ganj. The abovesaid FIR was investigated by SI Sudhir and he is friend of Insp. Kuldeep. No notice u/s 50 NDPS Act was not served upon me. I am falsely implicated in the present matter.
53. Although the version of the accused under section 313 Cr. PC is not determinative in deciding guilt or innocence, the said provision inter alia sub section 4 is required to be taken into consideration by the court during trial. Considering the absence of heroin in a major portion of the alleged recovery of 1 kg ascribed to the accused, the possibility of a less than credible implication cannot be ruled out.
Absence of public witnesses
54.Here, the court would cite the absence of public witnesses at every stage of the proceedings, including at the time of the arrest of the accused, to be a singularly conspicuous omission.
55.While PW-1 to PW-3 did maintain that public witnesses could not be joined either on the way to the Red Fort (at Lal Quila parking gate or Ramesh Park bus stand) and the place of occurrence i.e. near Lalita Park, Bus stand, such explanations are quite stereotypical and self serving. A specialised agency like the Narcotics Cell, which sets out as a raiding party to apprehend one of its own secret informers who has gone purportedly rogue, is expected to employ sufficient diligence in involving public witnesses during the raid. Notably, other special investigative agencies like the CBI regularly secure FIR No.02/2015 State Vs. Javed @ Sonu Page No.21 of 29 the presence of public witnesses (including public servants) on short notice in their investigation. It would thus not seem impossible for the ACP (PW-9), the inspector of the Crime Branch (PW-12) or the first IO (PW-1) to have secured the advance presence of independent witnesses. The failure to do so and rather stake the fate of public participation in searching for witnesses at the Lal Quila is a flimsy account. Multiple other cases before this very court reveal the Narcotics Cell to always be looking for witnesses at the Red Fort.
56.In sum, the court records without hesitation that the raid was designed to be bereft of public or independent verification. Coupled with the non communication of the absolute right under section 50 NDPS Act and the absence of diacetylmorphine in a large component of the recovery, the absence of the public witnesses creates overwhelming doubts on the charge under section 21(c) NDPS act.
57.The court is indeed mindful of the two presumptions operating under the NDPS Act against the accused. While section 35 requires the court to presume the existence of the mental state with respect to an offence which requires culpable mental state and section 54 creates a presumption of the commission of an offence with respect to a narcotic drug for which the accused has not satisfactorily accounted for his purported possession, both presumptions are rebuttable. The presumptions being rebuttable, come into play only if the FIR No.02/2015 State Vs. Javed @ Sonu Page No.22 of 29 foundational facts are first proved. Since possession and recovery of the quantity of 1 kg of heroin from the accused have not been proved as the foundational facts by the prosecution, there is no occasion for the court to draw presumptions under section 35 and 54 NDPS Act either qua culpable mental state or commission of an offence under section 21(c) NDPS Act.
58.The prosecution has failed to establish the charge under section 21 (c) NDPS on the standard of proof beyond the reasonable doubts.
59.The accused is entitled to acquittal under the said charge.
Charge under section 174A IPC
60.The allegations of the prosecution qua the charge under section 174A IPC were predicated on the declaration of the accused as a proclaimed person vide order dated 04.09.2018.
61.At the outset, section 174A IPC is reproduced below for reference.
174A. Non appearance in response to a proclamation under section 82 of Act 2 of 1974.Whoever fails to appear at the specified place and the specified time as required by a proclamation published under subsection (1) of section 82 of the Code of Criminal Procedure, 1973 shall be punished with imprisonment for a term which may extend to three years or with fine or with both, and where a declaration has been made under subsection (4) of that section pronouncing him as a proclaimed offender, he FIR No.02/2015 State Vs. Javed @ Sonu Page No.23 of 29 shall be punished with imprisonment for a term which may extend to seven years and shall also be liable to fine.
62.It is apparent that where a person fails to appear in response to a proclamation under section 82 (1) Cr. PC, he is liable for conviction and punishment of the description imprisonment upto three years or fine or both. In the alternative, if the declaration has been made under sub section 4 of section 82 Cr. PC declaring a person as a proclaimed offender, aggravated punishment for upto seven years and fine may be imposed.
63.The description of offences in section 82 (4) is restricted to offences under the Indian Penal Code and does not include offences under the NDPS Act. Such persons are rather to be declared proclaimed persons. Reference may be made here to the decision of the Hon'ble High Court of Delhi in Sanjay Bhandari v. State (NCT of Delhi) 2018 SCC Online Del 10203 wherein it was held as under: "I am thus of the view that a person who is accused of offences other than the ones enumerated in section 82 (4) and qua whom a proclamation has been published under section 82 (1) would be a 'Proclaimed person' and not a deemed 'Proclaimed Offender.
As noticed above, there is no provision other than section 82 (4) for pronouncing such a person as a proclaimed offender and 82 (4) applies only in respect of persons accused of sections of IPC enumerated therein''.
FIR No.02/2015 State Vs. Javed @ Sonu Page No.24 of 29
64.In the present facts, the accused is therefore liable to be judged under section 174A IPC within the purview of the offence of the first description viz imprisonment upto three years or fine or both.
65.The center piece of the evidence was the order dated 04.09.2018 passed by the Ld. Predecessor of this court. This order is reproduced below:
"04.09.2018 Present: Sh. Maqsood Ahmad, Ld. Addl. PP for the State.
Accused is absent.
Statements of CW1 ASI Sanjay, CW2 ASI Rajnish Sharma and CW3 Ct. Santosh, who have executed the process u/s 82/83 Cr. PC upon accused are recorded.
In view of the statements, accused is untraceable and no property has been found in his name. Thus, accused is declared Proclaimed Person.
File be consigned to record room with the liberty to the prosecution to revive the same as and when accused is rearrested or surrenders.
(Ajay Gupta) ASJ02/Special Judge (NDPS) KKD/East/04.09.2018"
66.The above order evidently declared the accused as a proclaimed person.
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67.This order is to be seen in the context of a preceding order dated 06.10.2017 reproduced below:
"06.10.2017 Present: Sh. Maqsood Ahmad, Ld. Addl. PP for the State.
Sh. C D Rai, Advocate for the applicant/ accused.
Applicant has prayed for grant of interim bail on the ground of marriage of his only daughter Nisha at Firozabad, UP. Report from Narcotic Cell verifies the factum of marriage on 19.10.2017.
The accused was earlier granted interim bail on 07.09.2016 because of surgery of his wife. He had not misused the liberty of bail and had surrendered on expiry of interim bail period. Since the marriage of only daughter of accused has to take place on 19.10.2017, in the interest of justice, accused/applicant is granted interim bail till 22.10.2017 subject to his furnishing a personal bond in the sum of Rs. 50,000/ with a surety of the like amount with condition that he shall surrender before the jail authority on 22.10.2017 and shall not seek extension on any ground. It is made clear that this order has been passed only on humanitarian considerations and not on the merits of the case.
(Ravinder Dudeja) ASJ02/Special Judge (NDPS) KKD/East/06.10.2017"
FIR No.02/2015 State Vs. Javed @ Sonu Page No.26 of 29
68.After being admitted to interim bail on 06.10.2017, the accused remained absent, leading to issuance of NBWs against him on 25.10.2017. After these warrants were repeated and could not be executed, process under section 82 Cr. PC was issued on 06.03.2018. It is upon execution of this process that the Ld. Predecessor of this court declared the accused a proclaimed person vide order dated 04.09.2018.
69.The sanctity of the satisfaction recorded by the court regarding the due publication of the process under section 82 Cr. PC is recognised by sub section 3 of section 82 itself. This sub section reads as under:
82(3) A statement in writing by the Court issuing the proclamation to the effect that the proclamation was duly published on a specified day, in the manner specified in clause (I) of subsection (2), shall be conclusive evidence that the requirements of this section have been complied with, and that the proclamation was published on such day.
70.Thus, a statement from the court which has issued a proclamation under section 82 Cr. PC is mandatorily required, as apparent from the use of the word "shall" in section 82 (3) Cr. PC, to be treated as conclusive evidence regarding the requirements of section 82 Cr. PC being complied with. This provision elevates the statement of a court in writing under FIR No.02/2015 State Vs. Javed @ Sonu Page No.27 of 29 section 82(3) Cr. PC to be not only in the nature of evidence but also conclusive evidence regarding compliance with the mandate of section 82 Cr. PC. In the present trial, not only did the ld Predecessor record such a statement on 04.09.2018 but the same was even admitted by the accused under section 294 Cr. PC and denoted as Ex A1 by the court.
71.Consequently, it stands established through the uncontroverted and admitted order dated 04.09.2018 and through operation of the mandate of section 82(3) Cr. PC that a proclamation under section 82 Cr. PC issued against the accused had been duly executed. The accused evidently did not join proceedings till he was rearrested by PW13 and PW14 on 20.04.2022. The arrest on 20.04.2022 was cogently proved by PW13 and PW14 through the arrest memo Ex. PW13/A after he was arrested formally at Central Jail, Tihar. The accused having been admitted to interim bail, his failure to appear upon the proclamation under section 82 Cr.PC and his arrest only on 20.04.2022 establish beyond any doubt that there was a conscious effort on the part of the accused to avoid court proceedings and abscond pending trial. The prosecution had little effort to make in the present matter as unlike instances of accused persons absconding prior to the filing of the chargesheet and the necessary doubts upon efforts of the police to trace them, the present accused absconded during trial and that too after multiple witnesses FIR No.02/2015 State Vs. Javed @ Sonu Page No.28 of 29 had been examined. His remaining at large was thus a deliberate flouting of the opportunity granted by the court.
72.The accused is liable to be held guilty under section 174A IPC.
ORDER
73.Accused Javed @ Sonu is convicted under section 174A IPC. The accused is acquitted under section 21 (c) NDPS Act.
Dictated and announced in open Court (VISHAL GOGNE) on 27th September, 2023 ASJ02/Special Judge (NDPS) Act KKD/East/Delhi FIR No.02/2015 State Vs. Javed @ Sonu Page No.29 of 29