Delhi District Court
State vs Arvind Kumar Saxena on 23 December, 2024
IN THE COURT OF ALOK SHUKLA, ADDITIONAL SESSION
JUDGE-02, SPECIAL JUDGE (NDPS), EAST DISTRICT,
KARKARDOOMA COURT, DELHI
CNR no. DLET01-011058-2017
Session Case No. 603/2017
State versus Arvind Kumar Saxena
First Information Report No. 83/2017
Police Station Crime Branch East, Delhi
Under Section 21/29 Narcotic Drugs And Psychotropic
Substances Act
In the matter of: -
STATE
Versus
(1) Arvind Kumar Saxena
Son of Shri Gulab Shanker Saxena,
Resident of H. No. 318, Mohalla Khan Pura,
Meer Ganj, Bareilly, UP.
(2) Salman Khan
Son of Babbu Khan,
Resident of Mohalla Khan Pura,
Meer Ganj, Bareilly, UP. (Accused was discharged on
26.02.2018)
Date of Institution : 20.09.2017
Date of reserve for judgment : 04.12.2024
Date of decision : 23.12.2024
JUDGMENT
1. Accused Arvind Kumar Saxena has been charged with the offence under Section 21(b) of the NDPS Act and Accused Salman Khan was discharged on 26.02.2018.
2. Brief Facts of the case are that on 03.04.2017, a secret information was received by Inspector Rajnikant in the Office of Narcotics Cell, old Kotwali that one person namely Arvind Saxena, r/o Bareilly, UP who is indulged in supply of heroin in Delhi NCR after procuring the same from Bareilly, U.P would Page no. 1 come to Bus Stand Gazipur Crossing, near Foot over Bridge on the road leading towards Dilshad Garden, Delhi on that day between 05:30 PM to 06:00 PM for delivering a big consignment of Heroin to someone and if raid is conducted, he could be apprehended with the contraband. Inspector Rajnikant verified the information and at about 4:00 PM informed ACP Sh. Sanjeev Kumar Tyagi, N & CP (ACP) on phone, who gave directions to immediately take legal action and conduct a raid. Information was reduced into writing as per section 42 NDPS Act vide DD No. 10 dated 03/06/2017 at 04:15 PM, Narcotics Cell, Crime Branch, Delhi and copy of the same was sent to the office of Sh. Sanjeev Kumar Tyagi, ACP/Narcotics Cell, Crime Branch at about 4:20 PM. A raiding team led by Inspector Rajnikant Sharma consisting of HC Dharmender, No. 454/ Crime & Ct. Samrat Singh, No. 808/ Crime was constituted and secret information was shared with the members of the team. IO Rajnikant collected the IO Bag, field testing kit and electronic weighing machine and departed for the spot alongwith members of raiding team and informer at 04:30 PM vide DD No. 11 in a Private Vehicle No. DL8-CP-3419, Wagon-R, Blue colour. A trap was laid at Bus Stand Gazipur Crossing, Near Footover Bridge, Delhi. One person namely Arvind Kumar Saxena S/o Sh. Gulab Shanker Saxena, R/o H. No. 310, Mohalla-Khanpura, Tehsil and PS-Meerganj, Distt. Bareilly, UP Age 25 Years was apprehended at about 05:55 PM at the instance of the informer. Inspector Rajnikant asked the passersby to join the proceedings, however none agreed and left the spot citing reasonable constrains without disclosing their names and addresses. Notice under Section 50 NDPS Act was served upon Arvind Kumar, however he refused to be searched in the presence of a Gazetted Officer or a Magistrate and also Page no. 2 refused to take search of Police party and their vehicle. Cursory search of Arvind Kumar was conducted and during search, one transparent polythene was recovered from the right pocket of Jeans wore by him. The transparent polythene was found containing mud (matmaila) colour powder. The mud colour powder after being checked with the help of field-testing kit, was found to be Heroin. Mud colour powder was weighed on electronic weighing machine and its weight was found to be 250 grams. Two samples of 5-5 grams each were drawn and kept in two transparent polythenes, both the samples were tied with rubber bands and converted into cloth parcels (pulandas), which were marked as "A" & "B". Remaining 240 gram of Heroin was left in the same recovered transparent polythene and mouth was tied with rubber band, converted into cloth parcel and marked as "C". All the three cloth parcels were sealed with the seal of 5B PS/NB DELHI. FSL form was filled up and the sample seal was also put on FSL Form. All the three pulandas and FSL Form and seal after use was handed over to Ct. Samrat. A rukka was prepared and sent to Duty Officer, PS Crime Branch through HC Dharmendra at 09:30 PM for registration of the FIR. All three cloth parcels, FSL Form and carbon copy of the seizure memo were also sent to SHO, PS Crime Branch for compliance of Section 55 NDPS Act, through HC Dharmendra. Instant case was registered and further investigation was conducted by SI Vinod Kumar. During course of investigation, SI Vinod Kumar reached the spot, Bus Stand Gazipur Crossing, Near Foot-over Bridge on the road leading towards Dilshad Garden, Delhi and prepared site plan at the instance of Inspector Rajnikant Sharma and recorded statement of Ct. Samrat on the spot. Thereafter, SI Vinod Kumar arrested accused Arvind Kumar Saxena S/o Sh. Gulab Shanker Saxena, Page no. 3 R/o H. No. 510, Mohalla-Khanpura, Tehsil and PS-Meerganj, Distt. Bareilly, UP Age 25 Years on 04/06/2017 at 04:25 AM. Information regarding arrest of Arvind Kumar Saxena was given to his elder brother, namely Rajeev Saxena on Mobile No. 9410088700. Accused Arvind Kumar Saxena was produced before the Court and his PC remand was obtained. During course of investigation, as per the disclosure statement of accused Arvind Kumar Sexena, SI Vinod Kumar alongwith staff and accused conducted raid at the house of Salman Khan S/o Babbu Khan, R/o Mohalla Khanpura, Kasba Meerganj, Distt. Bareilly, UP. After following mandatory provisions of NDPS Act, SI Vinod Kumar arrested accused Salman Khan, age 22 Years on 08/06/2017 at 12:30 PM. Information regarding arrest of Salman had been given to his father Sh. Babbu Khan. Accused Salman was produced before the Court. Accused persons were sent to JC. Statement of witnesses were recorded under Section 161 Cr.P.C. Samples of contraband were sent to FSL Rohini. After obtaining FSL result and completion of investigation, chargesheet under Section 21/29 NDPS Act was filed before the Court.
CHARGES AGAINST THE ACCUSED
3. By order dated 26.02.2018, charge for the offences under Section 21(b) of the NDPS Act was framed against accused Arvind Kumar Saxena to which he pleaded not guilty and claimed trial. Co-accused Salman Khan was discharged vide order dated 26.02.2018.
PROSECUTION WITNESSES
4. Seven prosecution witnesses were examined during the course of trial.
5. PW1 HC Dharmender deposed that on 03.06.2017, he was present in the office of Narcotic Cell, Darya Ganj, Delhi and Page no. 4 Inspector Rajnikant called him and Ct. Samrat in his office at about 4.20 pm and they both reached there and Inspector Rajnikant told them that he had received secret information that one person namely Arvind r/o Bareilly, UP involved in supplying heroin in Delhi after procuring same from Bareilly, UP, would come to supply heroin to someone between 5.30 pm to 6.00 pm ahead of bus stand Gazipur crossing near foot over bridge, on the road leading towards Dilshad Garden. Thereafter, Inspector Rajnikant had prepared a raiding party including himself, Ct. Samrat, HC Dharmender and the secret informer and he had taken his IO bag, field testing kit, electronic weighing machine and they all started from the office at about 4.30 pm in private car no. DL8CP 3419 Wagon R driven by Inspector Rajnikant. He further deposed that DD no. 11 was lodged with regard to departure and after leaving the office, they reached Shanti Van red light and took a right turn from Yamuna bridge, Geeta Colony and via DC office Nala Road, then they came to Karkari More and took right turn and then they took a turn from Telco T- point towards right side and then they reached under Gazipur fly over and took a turn and reached near foot over bridge, Gazipur crossing in front of bus stand and then they reached the spot i.e. road leading towards Dilshad Garden and on the way at Shanti Van red light, Inspector Rajnikant had requested 5-6 passersby and also at Telco T-point red light 5-6 passersby to join the raiding team after briefing them about the information but none agreed and they left the spot without giving their names and addresses. He further deposed that Inspector Rajnikant parked the private car about 10 meters away from Gazipur crossing and thereafter at about 5.25 pm, the raiding team was again briefed and they had taken their position in the raidus of 5 meters. He further deposed that at about 5.45 pm, Page no. 5 one person came from the side of Gazipur village and via foot over bridge, he came under foot over bridge and started waiting there for someone and the said person was pointed out by the secret informer when he was on foot over bridge and secret informer had told the IO that he was the person about whom he had informed and then the secret informer had gone away from there. He further deposed that the said person kept on waiting for about 10 minutes and when he started going on foot towards Gazipur foot over bridge then he was apprehended at about 5.55 pm by Inspector Rajnikant with help of Ct. Samrat. He further deposed that on interrogation, name of that person was known as Arvind Kumar Saxena son of Gulab Shankar Saxena, R/o. H.No. 310, Mohalla Khanpura, Tehsil and PS Mirganj, Distt. Bareilly, UP. He further deposed that Inspector Rajnikant introduced himself and raiding team members to accused and requested 4-5 public persons, who had gathered there to join the proceedings but none agreed and left the spot without giving their names and addresses. He further deposed that he was directed to bring the car at the spot and he had brought the same. He further deposed that accused Arvind Kumar Saxena was apprised by Inspector Rajnikant that he had information from the secret informer that accused was indulged in supplying heroin in Delhi after procuring the same from Bareilly, UP and on that day also, accused Arvind had come there to supply heroin to someone and in this regard his search was to be taken. He further deposed that accused was told about his legal right that his search could be taken in the presence of Gazetted Officer or a Magistrate and arrangement for the same could be done or that he could take search of any raiding team members and the private car prior to his search, if he desired but accused had refused for the same. He further deposed that thereafter, Page no. 6 notice under Section 50 NDPS Act was prepared by the IO in original plus carbon copy and original notice under Section 50 NDPS Act was given to accused and accused was also provided carbon copy of notice under Section 50 NDPS Act Ex. PW1/A and the reply written by accused on it Ex. PW1/B. He further deposed that accused Arvind Kumar Saxena was formally searched by the IO and from right side pocket of his jeans, one transparent polythene containing mathmaila colour powder was recovered, tied with rubber band and the said polythene was untied and some powder was taken out, which was tested on field testing kit and the same was found to be heroin and the said polythene containing heroin was weighed on electronic weighing scale, which was found to be 250 gram alongwith transparent polythene. He further deposed that two samples of 5 gram each were drawn from the recovered heroin and the same were kept in two separate small transparent polythene which was tied with rubber band and with the help of white cloth, sample parcels were prepared which were given Mark A and B and remaining heroin was kept in the said transparent polythene, which was tied with rubber band and converted into cloth parcel which was given Mark C and the FSL from was filled up at the spot by the IO. He further deposed that thereafter all the parcels were sealed with the seal of 5 B PS/NB DELHI and the said seal was also affixed on the FSL form and thereafter, the said parcels and FSL form were taken into possession vide seizure memo Ex. PW1/C and seal after use was handed over to Ct. Samrat. He further deposed that thereafter, IO prepared a tehrir, which was given to him alongwith all the sealed parcels, FSL form and carbon copy of seizure memo and he was directed to produce the rukka to DO and the parcels, carbon copy of seizure memo and FSL form to Page no. 7 SHO for necessary action and thereafter, he left in the said private car driven by him and reached Crime Branch, PS Pushap Vihar and produced the rukka to DO HC Pankaj and the parcels, FSL form and carbon copy of seizure memo to Inspector Subhash Malik, the then SHO, who asked the FIR number registered in this case and then he called the MHC(M) HC Jagnarain in his office alongwith register no. 19 who had come there. He further deposed that the SHO had written FIR number, particulars of the case on the parcels and on the documents and he had also put his seal of SM on the said parcels and on FSL form also and the case property was got deposited in Malkhana through MHC(M) and relevant entries in register no. 19 were also filled up by the MHC(M) which were initiated by the SHO also and DD no. 14 was also got lodged by the SHO complying the provisions of section 55 of NDPS Act. He further deposed that thereafter, DO handed him over copy of FIR and original Tehrir and he left PS and reached Crime Branch office Darya Ganj and handed over copy of FIR and original tehrir to SI Vinod Kumar to whom further investigation of the case was marked. He further deposed that thereafter SI Vinod had left for the spot in the said private car and he remained in the office and on 04.06.2017, his statement was recorded by SI Vinod Kumar in the office. He further deposed that on 08.06.2017, he again joined the investigation alongwith SI Vinod and Ct. Samrat and accused Arvind Kumar Saxena who was on PC remand and they all had gone to Mirganj, Bareilly, UP in search of source of supply Salman Khan who was apprehended from his house and accused Salman had already been discharged in this case. He identified accused Arvind Kumar Saxena before the Court and the case property i.e. sample heroin Ex. P1, another sample of illegal contraband Page no. 8 Ex. P-2 and the remaining heroin recovered from the possession of accused Ex. P-3.
6. PW2 Ct. Samrat deposed that on 03.06.2017, he was present in the office of Narcotic Cell, Darya Ganj, Delhi and Inspector Rajnikant called him and HC Dharmender in his office at about 4.20 pm and they both reached there and they were told that Inspector Rajnikant had received secret information about one person i.e. accused Arvind involved in supplying heroin in Delhi after procuring same from Bareilly, UP and on that day also, Arvind would come to supply heroin to someone in between 5.30 pm to 6.00 pm ahead of bus stand Gazipur crossing near foot over bridge, on the road leading towards Dilshad Garden. He further deposed that Inspector Rajnikant prepared a raiding party including himself, HC Dharmender and him alongwith and the secret informer. He further deposed that IO bag, field testing kit, electronic weighing machine were taken and they all started from the office at about 4.30 pm in private car no. DL8CP3419 Wagon-R driven by Inspector Rajnikant. He further deposed that DD no.11 was lodged with regard to departure and after leaving the office, they reached Shanti Van red light and took a right turn from Yamuna bridge, Geeta Colony and via DC office Nala Road, then they came to Karkari Mor and took right turn and then they took a turn from Telco T- point towards right side and reached under Gazipur Fly over and took a turn and reached near foot over bridge, Gazipur crossing in front of bus stand and then they reached the spot i.e. road leading towards Dilshad Garden and on the way at Shanti Van red light, Inspector Rajnikant requested 5-6 passersby and also at Telco T-point red light to join the raiding team after briefing them about the information but none agreed and left the spot without giving their names and addresses and Page no. 9 thereafter, Inspector Rajnikant parked the private car about 10 meters away from Gazipur crossing and thereafter, at about 5.25 pm, the raiding team was again briefed and they had taken position in the radius of 5 meters. He further deposed that at about 5.45 pm, one person came from Gazipur village side and via foot over bridge, when he came under foot over bridge and he started waiting there for someone. The said person was pointed out by the secret informer when he was on foot over bridge and secret informer told the IO that he was the person about whom he had informed and thereafter, secret informer went away from there. He further deposed that said person kept on waiting for about 10 minutes and when he started going on foot towards Gazipur foot over bridge then he was apprehended at about 5.55 pm by Inspector Rajnikant with his help and help of HC Dharmender and on interrogation, name of said person was came to know as Arvind Kumar Saxena s/o Gulab Shankar Saxena r/o H. No.310 Mohalla Khanpura, Tehsil and PS Mirganj, Distt. Bareilly. He further deposed that Inspector Rajnikant introduced himself and raiding team members to accused and at that point of time also, IO requested 4-5 public persons, who gathered there to join the proceedings but none agreed and left the spot without giving their names and addresses. He further deposed that HC Dharmender was directed to bring the car at the spot and he had brought the same. He further deposed that accused was apprised by Inspector Rajnikant that he had information from the secret informer that accused were indulged in supplying heroin in Delhi after procuring the same from Bareilly, UP and on that day also, accused had come there to supply heroin to someone and in this regard search was to be taken and it was his legal right that his search can be taken in presence of Gazetted Officer or Page no. 10 a Magistrate and arrangement for the same can be done or accused can take search of any raiding team members and the private car prior to his search, if he so desired but accused refused for the same. He further deposed that notice under Section 50 NDPS Act was prepared by the IO in original plus carbon copy and original notice was given to accused and was also provided the carbon copy of notice upon which accused had written reply in Hindi in his own handwriting. The carbon copy of notice under Section 50 NDPS Act is Ex.PW1/A and reply written by the accused in Hindi is Ex.PW1/B. He further deposed that accused Arvind Kumar was formally searched by the IO and from right side pocket of his jeans one transparent polythene containing mathmaila colour powder was recovered which was tied with rubber band and the said polythene was untied and some powder was taken out from the same and it was tested on field testing kit, which was found to be heroin and the said polythene containing heroin was weighed on electronic weighing scale and it was found to be 250 grams along with transparent polythene. He further deposed that two samples of 5 grams each were drawn from the recovered heroin and the same were kept in two separate small transparent polythene which were tied with rubber band and with the help of white cloth, sample parcels were prepared which were given Mark A and B. He further deposed that remaining heroin was kept in the said transparent polythene, which was tied with rubber band and converted into cloth parcel, which was given Mark C and FSL form was filled up at the spot by the IO. He further deposed that all the above-mentioned parcels were sealed with the seal of 5 B PS/NB DELHI and each parcel was affixed with one seal and the said seal was also affixed on the FSL form. Thereafter, the said parcels and FSL form were taken into possession vide Page no. 11 seizure memo Ex.PW1/C and seal after use was handed over to him. He further deposed that thereafter, IO prepared a tehrir and gave to HC Dharmender along with all the sealed parcels, FSL form and carbon copy of seizure memo with directions to produce the rukka to DO and the parcels, carbon copy of seizure memo and FSL form to SHO for necessary action. Thereafter, HC Dharmender left in the said private car. He further deposed that after registration of FIR, SI Vinod Kumar reached at the spot on 04.06.2017 at about 2.10 am in the said private car driven by him and he was briefed by Inspector Rajnikant at the spot and documents prepared by the IO were handed over to 2nd IO who had prepared site plan at the instance of SI Rajnikant. He further deposed that his statement was recorded by the IO at the spot by SI Vinod Kumar and thereafter, accused Arvind Kumar was arrested vide arrest memo Ex.PW2/A and personal search of accused vide memo Ex.PW2/B was also conducted in which notice under Section 50 NDPS Act was recovered along with other documents and Rs.205 in cash. He further deposed that disclosure statement of accused was also recorded Ex.PW2/C and after completion of the proceedings at the spot, they along with accused started from the spot at about 5.05 am and reached PS Crime Branch Pushp Vihar at about 6.10 am. He further deposed that jamatalashi articles were got deposited in malkhana by the IO and he also recorded statement of SHO Inspector Subhash Malik in between 6.15 am to 6.45 am and statement of MHCM in between 6.50 am to 7.20 am. He further deposed that they left PS Crime Branch at about 7.30 am and reached Narcotic Cell, Daryaganj at about 8.15 am, where, IO recorded statement of Inspector Rajnikant in the office and supplementary statement of PW2 was also recorded in between Page no. 12 9.20 am to 9.50 am.
7. PW3 Ct. Rohit deposed that on 06.06.2017, he was posted in PS Narcotics Cell and on that day, he took sample alongwith copy of FIR, copy of seizure memo and FSL form from MHC(M) and took the same to FSL Rohini vide DD No. 4. He further deposed that the said sample were duly sealed with the seal of 5 BPS NB DELHI & SM vide RC number, however, PW3 did not remember the RC number and got the samples deposited in FSL Rohini. He further deposed that he received the receipt vide FSL No. 2017/CHE-4232 dated 06.06.2017 and handed over the receipt to MHC(M) ASI Jag Narain. He further deposed that no tampering was done while the said documents and sample remained in his possession and his statement was recorded by the IO between 5.30 to 6 pm in his office.
8. PW4 HC Pankaj deposed that on 03.06.2017, he was working as Duty Officer at PS Crime Branch, Pushap Vihar, Delhi from 8 pm to 8 am (04.06.2017) and on that day at about 10.45 pm, he received a rukka from HC Dharmender sent by Inspector Rajnikant Sharma and he made endorsement on the rukka Ex. PW4/A. He further deposed that on the basis of said rukka, he got the FIR recorded through Computer Ex. PW4/B. He further deposed that on the same day, he was working as DD writer in the office and at about 10.45 pm, he lodged DD no. 13 regarding receiving the rukka sent by Inspector Rajnikant Sharma through HC Dharmender and the extract of said DD is Ex. PW4/C. He further deposed that he handed over the copy of FIR and original Rukka to HC Dharmender for handing over the same to the IO.
9. PW5 ASI Mahesh Chand deposed that he was working as MHC(M) in the office and on 25.01.2017, he issued seal of 5BPS/NB DELHI to Inspector Rajnikant Sharma through entry Page no. 13 in seal issuance register at sl. no. 11 Ex. PW5/A. He further deposed that Inspector Rajnikant Sharma returned the seal to him on 28.03.2019 and in that regard, he made entry in the relevant column of the register. He further deposed that on 03.06.2017 at about 4.25 pm, Inspector Rajnikant Sharma took electric weighing machine from Malkhana and he made entry in that regard at srl. no. 20 Ex. PW5/B and returned the said weighing machine on 04.06.2017 at 10.30 am and he made entry at relevant column in this regard.
10. PW6 ASI Rajender produced the summoned record. He deposed that on 03.06.2017, copy of DD No. 10 pertaining to this matter was received in his office vide Diary no. 1189, which was seen and signed by ACP Ex. PW6/A. He also produced copy of diary register pertaining to the relevant register Ex. PW6/B. He further deposed that on 05.06.2017, reports under Section 57 NDPS Act prepared by Inspl. Rajnikant and SI Vinod Kumar qua accused Arvind Kumar were received in his office vide diary numbers no. 1190 and 1191 and reports Ex. PW6/C and Ex. PW6/D were seen and signed by ACP.
11. PW7 Retired ACP Sanjeev Tyagi deposed that on 03.06.2017, he was posted as ACP in Narcotics Cell, Crime Branch and on that day, Inspector Rajnikant telephonically informed him at about 4.00 pm regarding an information that one Arun Kumar resident of Bareilly indulged in supplying heroine in Delhi and he would come near Foot over bridge, Ghazipur Crossing road leads to Dilshad Garden between 5.30 to 6 pm to supply heroine to someone and both the persons i.e. accused Arvind Kumar Saxena and Salman can be apprehended, if raid be organized and on the information, he directed Inspector Rajnikant Sharma to conduct a raid. He further deposed that on the same day, his Reader put up a copy Page no. 14 of DD number 10 written by Inspector Rajnikant before him and he had seen and signed the same Ex. PW6/A. He further deposed that on 05.06.2017, his Reader put up reports under Section 57 NDPS Act prepared by Inspector Rajnikant and SI Vinod Kumar qua accused Arvind Kumar Saxena and he had seen and signed the said reports Ex. PW6/C and Ex. PW6/D respectively.
12. PW8 Inspector Rajnikant deposed that on 03.06.2017, he was posted at Narcotics Cell, Dariyaganj as Inspector and on that day at about 3.45 pm, one secret informer came to him and informed that one person i.e. accused Arvind Kumar Saxena, resident of Bareilly, UP involved in supplying of heroin in Delhi after procuring from Bareilly and on that day, he would come to supply heroin to someone in between 5.30 to 6.00 pm near Gazipur crossing foot over bridge leading towards Dilshad Garden. He informed the secret information to ACP S.K.Tyagi telephonically and ACP after his satisfaction gave direction to proceed as per law and at about 4.15 pm, he lodged DD entry no. 10 regarding the information Ex. PW8/1. He further deposed that he gave the copy of the said DD number 10 at ACP office and prepared raiding party consisting of HC Dharmender and Ct. Samrat and also informed them regarding the secret information received by him. He further deposed that at about 4.30 pm, he lodged DD no. 11 as shown on page no. 20 of judicial file at sr. no. 11 Ex. PW8/2 regarding departure entry and also obtained field testing kit, IO bag and electronic weighing scale before leaving for the raid and they left for the office at about 4.45 for the spot in a private car belongs to him bearing registration number DL 8CP 3419 Wagon-R and at about 5.20 pm, they reached at spot alongwith informer. He further deposed that he parked the car 10 meters away from Page no. 15 Gazipur crossing bus stand and he briefed staff and gave them their positions within 5-7 meters. He further deposed that at about 5.45 pm, one person came from the side of Gazipur village and via foot over bridge and he came under foot over bridge and started waiting there for someone and the said person was pointed out by the secret informer when he was on foot over bridge and secret informer told him that he was that person about whom he was informed and then the secret informer went away from there. He further deposed that the said person kept on waiting for about 10 minutes and when he started going on foot towards Gazipur foot over bridge then he was apprehended at about 5.55 pm by him with the help of Ct. Samrat and Ct. Dharmender. He further deposed that on interrogation, name of that person was revealed as Arvind Kumar Saxena and PW8 introduced himself and raiding team members to accused and at that point of time, PW8 requested 4-5 public persons, who gathered there to join the proceedings but none agreed and left the spot without giving their names and addresses and he directed HC Dharmender to bring the car at the spot, who brought the same. He further deposed that accused was apprised by him that he had information from the secret informer that accused was indulged in supplying heroin in Delhi after procuring the same from Bareilly, UP and on that day, accused had come there to supply heroin to someone and in this regard his search could be taken and it was his legal right that his search could be taken in the presence of Gazetted Officer or a Magistrate and arrangement for the same can be done or accused could take search of any raiding team members and the private car prior to his search but accused refused for the same. He further deposed that notice under Section 50 NDPS Act was prepared by him in original plus Page no. 16 carbon copy and the original notice was given to accused and accused was also provided the carbon copy of notice upon which accused had written reply in Hindi in his handwriting. He further deposed that cursory search of accused was conducted by him and from right side pocket of his jeans, one transparent polythene containing mathmaila colour powder was recovered which was tied with rubber band and the said polythene was untied and some powder was taken out from the same and it was tested on field testing kit and the same was found to be heroin and the said polythene containing heroin was weighed on electronic weighing scale and it was found to be 250 gms alongwith transparent polythene. He further deposed that two samples of 5 gms each were drawn from the recovered heroin and the same were kept in two separate small transparent polythene, which was tied with rubber band and with the help of white cloth, sample parcels were prepared, which were given Mark A and B and the remaining heroin was kept in the said transparent polythene which was tied with rubber band and converted into cloth parcel which was given Mark C and the FSL form was filled up at the spot by him. He further deposed that thereafter, he prepared a tehrir Ex. PW4/A and gave to HC Dharmender alongwith all the sealed parcels, FSL form and carbon copy of seizure memo with directions to produce the rukka to DO and the parcels, carbon copy of seizure memo and FSL form to SHO for necessary action and HC Dharmender left the spot at about 9.30 pm in the said private car driven by him. He further deposed that second IO/SI Vinod Kumar reached the spot on 04.06.2017 at about 2.10 am in a private car driven by him and he was briefed by PW8. He further deposed that he handed over all the relevant documents to SI Vinod and also the custody of accused Arvind Kumar Saxena. He further Page no. 17 deposed that at his instance, SI Vinod prepared the site plan Ex. PW8/3 and recorded the statement of Ct. Samrat from 2.50 am to 4.15 am and thereafter, SI Vinod interrogated accused Arvind and arrested him vide arrest memo Ex. PW2/A. He further deposed that personal search of accused was conducted vide personal search memo Ex. PW2/B in which, one original notice under section 50, one yellowish brown purse containing voter I-card, PAN card, Aadhar Card, two debit cards, Rs. 205/- was found and disclosure statement Ex. PW2/C was recorded. He further deposed that after completion of the proceedings at the spot, he alongwith accused started from the spot at about 5.05 am and reached PS Crime Branch Pushap Vihar at about 6.10 am and jamatalashi articles were got deposited in malkhana. He further deposed that statement of MHC(M) was recorded in between 6.50 am to 7.20 am and they left PS Crime branch at about 7.30 am and reached Narcotics Cell, Daryaganj at about 8.15 am. He further deposed that he prepared special report under section 57 NDPS Act Ex. PW8/4 and SI Vinod gave one report under section 57 NDPS Act and he forwarded both the reports to the ACP office Ex. PW8/5. He identified the accused in the Court and case property i.e. illegal contraband (heroin) Ex. P-1, Ex. P-2 and Ex. P-3.
13. PW9 Inspector Vinod Kumar deposed that on 04.06.2017, he was present at Narcotics Cell, Dariyaganj and on that day at about 1.30 am (midnight), original rukka Ex. PW4/A and copy of FIR Ex. PW4/B and certificate under Section 65 B Indian Evidence Act Ex. PW9/1 were handed over to him by HC Dharmender and investigation was marked to him and thereafter, he left his office at about 1.40 am for the spot. He further deposed that he reached at the spot at about 2.10 am Page no. 18 where he met Inspector Rajnikant and Ct. Samrat and Inspector Rajnikant informed him all the facts of the case and produced accused Arvind Saxena alongwith documents of the case. He further deposed that thereafter, he prepared site plan Ex. PW8/3 from 2.20 am to 2.50 am and recorded statement of Ct. Samrat in between 2.50 am from 4.15 am and thereafter arrested accused Arvind Kumar Saxena at about 4.25 am vide arrest memo Ex. PW2/A. He further deposed that he conducted personal search of accused Ex. PW2/B in which, one original notice under Section 50 NDPS Act alongwith one yellow brown purse containing voter I-card, pan card, Aadhar Card and two debit cards and cash amount of Rs. 205/- were recovered. He further deposed that he also recorded disclosure statement Ex. PW2/C and accused disclosed regarding one co-accused Salman who was stated to be his source from whom accused used to obtain contraband and thereafter, they left the spot at about 4.55 am and reached at PS Crime branch at about 6.10 am, where he met Inspector Subhash, SHO PS Crime Branch and recorded his statement under Section 161 Cr.PC from 6.20 to 6.50 am. He handed over the personal search articles to MHC(M) HC Jag Narayan and also recorded his statement under Section 161 Cr.PC and thereafter, they came back at their office at about 8.15 am. He further deposed that he also made DD no. 4 regarding arrest of accused Ex. PW9/2 and also recorded statement of Inspector Rajnikant from 8.40 am to 9.20 am and Ct. Samrat from 9.20 to 9.50 am, thereafter recorded statement of HC Dharmender from 9.50 am to 11.30 am. He also gave report under Section 57 NDPS Act Ex. PW8/5. He further deposed that he obtained PC remand of accused for three days and thereafter, he alongwith staff reached Meerganj, Bareilly where at instance of accused Arvind Kumar Saxena, Page no. 19 co-accused Salman was apprehended. He further deposed that he prepared pointing out memo Ex. PW9/4. He further deposed that on 06.06.2017, Ct. Rohit obtained the case property from MHC(M) and deposited the same at FSL Rohini and he came back and handed over copy of acknowledgment to him. He recorded his statement under Section 161 Cr.PC. He prepared chargesheet in the present matter and after receiving FSL report, also submitted it before the court Ex.A-1. He identified accused Arvind Saxena and his personal search articles.
14. PW10 ACP Subhash Malik deposed that on 03.06.2017, he was posted as a SHO PS Crime Branch Pushap Vihar, Delhi and on that day at about 11.05 pm, HC Dharmender, Narcotics Cell Crime Branch came to his office and produced three sealed cloth parcels Mark A, B and C and one FSL form sealed with the seal of 5B PS NB DELHI and carbon copy of seizure memo of recovery of 250 gms heroine under Section 55 NDPS Act. He further deposed that he inspected the same which was found intact in all respects. He also affixed his seal SM on the said parcels and FSL form and also wrote FIR number 83/2017 under Section 21 NDPS Act on them after knowing it from HC Pankaj, Duty Officer, Crime Branch. He also signed on the said case property. He further deposed that he also called the MHC(M) ASI Jag Narayan alongwith register no. 19 in his office and handed over the abovesaid case property to him, who made entries regarding the deposit of the same in the register no. 19 and he also signed in the said register. He further deposed that DD number 14 of the same date at about 11.30 pm was registered regarding the proceedings under Section 55 NDPS Act and thereafter on 04.06.2017, IO SI Vinod Kumar came to his office at about 6.10 am and made enquiries from him and recorded his statement. He also identified the case Page no. 20 property recovered from the accused.
15. PW11 Retired ASI Jag Narain deposed that on 03.06.2017, he was posted at PS Crime Branch, Pushap Vihar as MHC(M) and on that day, Inspector Subhash Malik deposited the case property vide Mad No. 2588 Ex. PW11/1. He further deposed that SI Vinod deposited articles vide Mad no. 2589 on 04.06.2017 Ex. PW11/2. He further deposed that on 08.06.2017, SI Vinod deposited the personal search articles vide Mad no. 2592 Ex. PW11/3. He further deposed that on 06.06.2017, the samples were sent to FSL vide Road Certificate no. 162/21/17 dated 06.06.2017 through Ct. Ex. PW11/4 and entry in this regard was also made in register no. 19. He further deposed that no tampering was made with the case property till it remained in his possession.
16. Accused admitted the FSL Report bearing no. FSL-2017/C-4232 dated 26.09.2017 Ex. A-1.
STATEMENT OF ACCUSED PERSONS under
section 313 Cr.P.C.
17. After completion of prosecution witnesses, statement of accused person under Section 313 Code of Criminal Procedure were recorded. Accused submitted that he was innocent and had been falsely implicated in the present case. Accused further submitted that being interested / police witnesses, they deposed falsely against him. Accused further submitted that he had been lifted from Meerganj, Kasba Khanpura, Bareilly and illegal contraband i.e. case property had been planted upon him. Accused further submitted that he is an educated person and studied up 12th class and he has no previous criminal record and has clean antecedents. Accused did not prefer to lead defence evidence.
18. Ld. APP has argued that the prosecution witnesses have Page no. 21 proved beyond reasonable doubt that the accused was apprehended with 250 gram of Heroin, which comes under intermediate quantity. It has been argued that the testimonies of the prosecution witnesses have remained unrebutted and uncontroverted. It is further submitted that testimonies of prosecution witnesses have proved beyond reasonable doubt that the accused was apprehended ahead of bus stand Gazipur crossing near foot over bridge, on the road leading towards Dilshad Garden on 03.06.2017 and 250 gram of Heroin was recovered from polythene carried by him in right pocket of jeans wore by him. It is argued that all the mandatory provisions of the NDPS Act were duly complied with by the raiding party.
19. On the other hand, learned counsel for the accused has argued that the applicant has been falsely implicated in the present case. It is submitted that there are serious infirmities in the case of the prosecution. He submits that the accused was lifted from lifted from Meerganj, Kasba Khanpura, Bareilly alongwith accused Salman Khan on the pretext that he will be made a witness and illegal contraband i.e. case property recovered from co-accused Salman Khan was planted upon him. He has submitted that even though the purported recovery happened in a public place, there are no independent witnesses. It is submitted that in the present case, upon seizure, the compliance of Section 52A of the NDPS Act was not made and the sampling procedure was not carried out before the learned Magistrate, which shows that accused is innocent and the entire proceedings were conducted at the police station by the investigating officers.
20. In the present case, the prosecution witnesses PW1, PW2 & PW8 have deposed that on 03.04.2017, a secret information was received by PW8 Inspector Rajnikant in the Page no. 22 Office of Narcotics Cell, old Kotwali that one person namely Arvind Saxena, r/o Bareilly, UP who is indulged in supply of heroin in Delhi NCR after procuring the same from Bareilly, U.P would come to Bus Stand Gazipur Crossing, near Foot over Bridge on the road leading towards Dilshad Garden, Delhi on that day between 05:30 PM to 06:00 PM for delivering a big consignment of Heroin to someone and if raid is conducted, he could be apprehended with the contraband. Inspector Rajnikant verified the information and at about 4:00 PM informed ACP Sh. Sanjeev Kumar Tyagi, N & CP (ACP) on phone, who gave directions to immediately take legal action and conduct a raid. Information was reduced into writing as per section 42 NDPS Act vide DD No. 10 dated 03/06/2017 at 04:15 PM, Narcotics Cell, Crime Branch, Delhi and copy of the same was sent to the office of Sh. Sanjeev Kumar Tyagi, ACP/Narcotics Cell, Crime Branch at about 4:20 PM. PW1, PW2 & PW8 further deposed that a raiding team led by Inspector Rajnikant Sharma consisting of PW1, HC Dharmender, No. 454/ Crime & PW2, Ct. Samrat Singh, No. 808/ Crime was constituted and secret information was shared with the members of the team. PW8, IO Rajnikant collected the IO Bag, field testing kit and electronic weighing machine and departed for the spot alongwith members of raiding team and informer at 04:30 PM vide DD No. 11 in a Private Vehicle No. DL8-CP-3419, Wagon-R, Blue colour. A trap was laid at Bus Stand Gazipur Crossing, near Footover Bridge, Delhi and accused Arvind Kumar Saxena S/o Sh. Gulab Shanker Saxena, R/o H. No. 310, Mohalla-Khanpura, Tehsil and PS-Meerganj, Distt. Bareilly, UP Age 25 Years was apprehended at about 05:55 PM at the instance of the informer. They further deposed that Inspector Rajnikant asked the passersby to join the proceedings, however none agreed and Page no. 23 left the spot citing reasonable constrains without disclosing their names and addresses. Notice under Section 50 NDPS Act was served upon Arvind Kumar, however he refused to be searched in the presence of a Gazetted Officer or a Magistrate and also refused to take search of Police party and their vehicle. Cursory search of Arvind Kumar was conducted and during search, one transparent polythene was recovered from the right pocket of Jeans wore by him. The transparent polythene was found containing mud (matmaila) colour powder. The mud colour powder after being checked with the help of field-testing kit, was found to be Heroin. Mud colour powder was weighed on electronic weighing machine and its weight was found to be 250 grams. Two samples of 5-5 grams each were drawn and kept in two transparent polythenes, both the samples were tied with rubber bands and converted into cloth parcels (pulandas), which were marked as "A" & "B". Remaining 240 gram of Heroin was left in the same recovered transparent polythene and mouth was tied with rubber band, converted into cloth parcel and marked as "C". All the three cloth parcels were sealed with the seal of 5B PS/NB DELHI. FSL form was filled up and the sample seal was also put on FSL Form. All the three pulandas and FSL Form and seal after use was handed over to Ct. Samrat. A rukka was prepared and sent to Duty Officer, PS Crime Branch through HC Dharmendra at 09:30 PM for registration of the FIR. All three cloth parcels, FSL Form and carbon copy of the seizure memo were also sent to SHO, PS Crime Branch for compliance of Section 55 NDPS Act, through HC Dharmendra.
21. It is established proposition of law vide catena of judgments viz. Dharampal Singhv. State of Punjab, (2010) 9 SCC 608; Raveen Kumar v. State of Himachal Pradesh, 2020 Page no. 24 SCC, Jarnail Singh v. State of Punjab, (2011) 3 SCC 521; Sumit Tomar v. State of Punjab, (2013) 1 SCC 395 and Mukesh Singh v. State (NCT of Delhi), (2020) 10 SCC 120 OnLine SC 869 that the case of the prosecution cannot be rejected merely on account of the case being tethered on the testimonies of official witnesses and non-examination of independent witnesses would thus not be fatal to the prosecution's case. The testimonies of the official witnesses cannot be disregarded merely on account of them being police officials or due to absence of corroboration from independent witnesses and the prosecution may furnish an explanation to justify the non-joinder of public witnesses during the course of the trial.
22. The Hon'ble Apex Court In the case of Raveen Kumar v. State of Himachal Pradesh(supra), while dealing with the question of whether absence of independent witnesses is fatal to the prosecution's case observed that while reliable testimonies of police officials can form the basis of conviction, lack of corroboration from independent witnesses casts an additional duty on the Court to exercise a higher degree of caution while scrutinizing the testimonies of the official witnesses. Thus, the Court has to see whether the evidence of prosecution witnesses has furnished an explanation to justify the non-joinder of public witnesses. Further the testimonies of the prosecution witnesses have to be scrutinized by exercising higher degree of caution.
23. In the present case, accused has taken a defence that he was picked up from Bareilly by the Police alongwith co-accused Salman on 03.06.2017 and the accused was brought to Delhi on the pretext that he would be made a witness. A suggestion was given to PW1 that he had gone to Bareilly between Page no. 25 03.06.2017 to 08.06.2017 to which he replied that he does not remember whether he had gone to Bareilly between theses dates. Similarly, during cross-examination of PW2, He admitted that he had gone to Bareilly six months prior to 08.06.2017, however he deposed that he does not remember, whether he had gone to Bareilly in connection with raid or not. The chargesheet is completely silent as to any such visit by any of the members of the raiding team to Bareilly six months prior to 08.06.2017. PW2 remained elusive as to purpose of his visit to Bareilly six months prior to 08.06.2017 and maintained that he does not remember the purpose of his visit to Bareilly six months prior to 08.06.2017. As per chargesheet, none of the members of the raiding team knew the accused prior to his arrest on 03.06.2017 and thus it is highly unlikely that the accused, who was a total stranger to the members of raiding team would know that PW2 had visited Bareilly six months prior to 08.06.2017. This visit does not find mention in the chargesheet nor prosecution has tried to explain as to how the accused, who was complete stranger to the members of the raiding team would know about the visit of PW2 to Bareilly six months prior to 08.06.2017. The degree of proof required in criminal trial is proof of guilt of accused beyond reasonable doubt and this unexplained fact has created doubt, as to the truthfulness and veracity of the chain of events put forth by the prosecution.
24. It is also pertinent to observe that there is no documentary evidence on record to show that the proceedings under section 52 A NDPS, Act were undertaken. Prosecution witnesses have admitted that no samples were drawn in the presence of Magistrate. Section 52 A of NDPS Act provides as under:
Page no. 26 Section 52A of the NDPS Act "52A. Disposal of seized narcotic drugs and psychotropic substances.-- (1) The Central Government may, having regard to the hazardous nature, vulnerability to theft, substitution, constraint of proper storage space or any other relevant consideration, in respect of any narcotic drugs, psychotropic substances, controlled substances or conveyances, by notification in the Official Gazette, specify such narcotic drugs, psychotropic substances, controlled substances or conveyance or class of narcotic drugs, class of psychotropic substances, class of controlled substances or conveyances, which shall, as soon as may be after their seizure, be disposed of by such officer and in such manner as that Government may, from time to time, determine after following the procedure hereinafter specified.
(2) Where any narcotic drugs, psychotropic substances, controlled substances or conveyances has been seized and forwarded to the officer-in-
charge of the nearest police station or to the officer empowered under Section 53, the officer referred to in sub-section (1) shall prepare an inventory of such narcotic drugs, psychotropic substances, controlled substances or conveyances containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs, psychotropic substances, controlled substances or conveyances or the packing in which they are packed, country of origin and other particulars as the officer referred to in sub-section (1) may consider relevant to the identity of the narcotic drugs, psychotropic substances, controlled substances or conveyances in any proceedings under this Act and make an application, to any
25. A bare reading of section 52A NDPS, Act reveals that when any contraband/narcotic substance is seized and forwarded to the police or to the officer so mentioned under Section 53, the officer so referred to in sub-section (1) shall prepare its inventory with details and the description of the Page no. 27 seized substance like quality, quantity, mode of packing, numbering and identifying marks and then make an application to any Magistrate for the purposes of certifying its correctness and for allowing to draw representative samples of such substances in the presence of the Magistrate and to certify the correctness of the list of samples so drawn. The testimony of prosecution witnesses shows that neither any inventory of contraband recovered from the accused persons were drawn nor the same was forwarded to the Magistrate concerned for the purpose of certifying the correctness of inventory, taking relevant photographs in his presence and certifying them as true. Thus the samples sent to the FSL were also not drawn in the presence of magistrate. The Hon'ble Supreme Court in Mangilal v. State of M.P., 2023 SCC OnLine SC 862 has observed as under:
6. The obvious reason behind this provision is to inject fair play in the process of investigation. Section 52A of the NDPS Act is a mandatory rule of evidence which requires the physical presence of a Magistrate followed by an order facilitating his approval either for certifying an inventory or for a photograph taken apart from list of samples drawn...
26. The Hon'ble Apex Court recently in Mohd. Khalid v. State of Telangana, (2024) 5 SCC 393 observed as under:
26. Admittedly, no proceedings under Section 52-A of the NDPS Act were undertaken by the investigating officer PW 5 for preparing an inventory and obtaining samples in the presence of the jurisdictional Magistrate.
In this view of the matter, the FSL report (Ext. P-11) is nothing but a waste paper and cannot be read in evidence. The accused A-3 and A-4 were not arrested at the spot.
27. In the present case, PW8 has deposed that he drew two samples of 5 gram each of Heroin recovered from accused Arvind Kumar Saxena and the same were converted into cloth Page no. 28 parcels marked as Mark A and Mark B and the remaining Heroin was also sealed in a cloth parcel after taking the same into white cloth and was marked as Mark C and all the parcels were sealed with the seal of 5 B PS/NB DELHI. FSL Report Ex.A1 show that Parcel A sealed with one seal of 5 B PS/NB DELHI and one seals of SM. PW10, SHO has deposed that seal of SM was affixed on the parcels by him after the same were handed over alongwith the FSL Form and copy of seizure memo by PW1. The testimonies of the prosecution witness shows that no sample was drawn in the presence of magistrate nor any inventory was prepared by the SHO. The fact that the samples of the seized contraband were not drawn in the presence of the Magistrate and the inventory of the seized contraband was also not certified by the Magistrate has further shrouded the testimony of prosecution witnesses under doubt. The Hon'ble Apex Court in Yusuf v. State, 2023 SCC OnLine SC 1328, while discussing the mandatory nature of Section 52A of the NDPS Act observed as under:
15. In Mohanlal's case, the apex court while dealing with Section 52A of the NDPS Act clearly laid down that it is manifest from the said provision that upon seizure of the contraband, it has to be forwarded either to the officer-in-charge of the nearest police station or to the officer empowered under Section 53 who is obliged to prepare an inventory of the seized contraband and then to make an application to the Magistrate for the purposes of getting its correctness certified. It has been further laid down that the samples drawn in the presence of the Magistrate and the list thereof on being certified alone would constitute primary evidence for the purposes of the trial.
16. In the absence of any material on record to establish that the samples of the seized contraband were drawn in the presence of the Magistrate and that the inventory of the seized contraband was duly certified by the Magistrate, it is apparent that the said seized contraband and the samples drawn therefrom would not be a valid piece of primary evidence in the Page no. 29 trial. Once there is no primary evidence available, the trial as a whole stands vitiated.
28. PW1, PW2 & PW8 has stated that two samples of 5g each were drawn by PW8 from the recovered Heroin and the same were converted into cloth parcel and the remaining Heroin was also sealed in a cloth parcel after taking the same into white cloth and all the parcels were sealed with the seal of 5 B PS/NB DELHI. They further deposed that the parcel of remaining Heron was given Mark C and samples were given Mark A and B mentioned in seizure memo. They further deposed that PW8 handed over the seizure memo and thereafter, he prepared a tehrir and alongwith FSL form and the sealed pulanda handed over to PW1 and directed him to hand over the tehrir to Duty Officer and parcels etc. to SHO for necessary action. Accordingly, the samples drawn by PW8 on the spot at time of recovery were sent to FSL and no samples were drawn before the Ld. Magistrate therefore in the absence of sample drawn before Ld. Magistrate and absence of Inventory of seized contraband duly certified by Ld. Magistrate as per Section 52A NDPS Act, it is apparent that the seized contraband and the sample drawn are not a primary evidence in trial, accordingly, in the absence of primary evidence with regard to samples, the whole trial stands vitiated in view of settled legal proposition as discussed by the Hon'ble Apex Court in Yusuf Vs. State, Supra. Thus the prosecution has failed to prove the charge under section 21(b) against accused Arvind Kumar Saxena.
29. In view of the abovesaid discussion, prosecution has failed to prove its case and accused Arvind Kumar Saxena s/o Sh. Gulab Shanker Saxena is acquitted of the offence under Section 21(b) of NDPS Act.
Page no. 30
30. File be consigned to Record Room after due compliance. Announced in the open court on this 23rd Day of December, 2024.
Digitally signedALOK by ALOK SHUKLA (Alok Shukla) SHUKLA 15:09:57 +0530 Date: 2024.12.23 Additional Session Judge-2/ Special Judge (Narcotic Drugs And Psychotropic Substances) East/Karkardooma/Delhi/23.12.2024 Page no. 31