Delhi District Court
State vs . 1) Abbas Illahi@ Sahid on 7 April, 2007
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IN THE COURT OF SHRI S. N. GUPTA : ADDL. SESSIONS
JUDGE PATIALA HOUSE COURTS : NEW DELHI.
SC No : 65/04
FIR No : 223/99
U/s : 21/29/61/85 NDPS Act.
PS : H.N. Din
State Vs. 1) Abbas Illahi@ Sahid
2) Ahmed Illahi
3) Abdul Khalid
JUDGMENT
This FIR was registered on the basis of rukka sent on 11.4.1999 by Inspector Chander Bhan. In that he alleged that he was having a secret information regarding some Afgani and Irani boy are selling Heroin in Nizamuddin area. DD No. 17A was recorded at 4.30 p.m. and ACP L.N. Rao was informed about it who gave instructions to further verify. The DD was recorded because Inspector Inder Singh was under transfer. He talked about secret informer in detail and he told him that Abdul Khalid, an Afgani, wants to sell the Heroin and would meet at 5 p.m. near Rajdoot Hotel and if he be contacted by the name of Victor, he would talk about selling of Smack. Then he along with Inspector, SI Hukum Chand, SI Sunil Kumar, ASI Jai Prakash , constable Laxman Singh with driver Tej Singh in a government vehicle No. 2 DL-1C-0503 left Special Cell Office vide DD No. 19, dated 11.4.1999 at about 4.55 p.m. They reached Rajdoot Hotel , Mathura Road. Secret informer pointed out towards a person standing and told his name as Abdul Khalid. SI Sunil Kumar along with ASI Jai Prakash were sent as a decoy customers with with shadow witness. SI Sunil Kumar who came and told them that he along with colleagues would come at about 6 p.m. With 1 kilogram smack and settled the price for Rs. 1 Lac. He will charge Rs. 10,000/- extra as his commission. About this deal, ACP L.N. Rao was informed, who was also called at the spot. ACP L.N. Rao also came at the spot at about 5.50 p.m. A raiding party was prepared. Public witness were asked to join but none agreed and left the place by giving their excuse. Further instruction was given to SI Sunil Kumar, decoy customer and shadow witness ASI Jai Prakash that as soon as deal is finalized, SI Sunil Kumar to put his hand on his head. At about 6.15 p.m. three persons came to SI Sunil Kumar near Narang Dental Centre, Jangpura B, New Delhi at footpath. The shop was closed at that time. They were all talking. At about 6.20 p.m. SI Sunil Kumar, decoy customer, put his hand on his head. On this inspector , ACP L.N. Rao, SI Hukum Chand reached there. All the three accused persons were apprehended and their names were revealed as Abbas Illahi @ Sahid, Ahmed Illahi and Abdul Khalid. Abbas Illahi was having one polythene bag. All those three persons were informed by them that they have information that they are having smack and 3 they want to search them. All those three persons were also informed that if they want to be searched before Gazetted officer or Magistrate, they may be called for their search. All the three accused persons were given notice U/s. 50 of NDPS Act. They all signed as received it and told that they do not want to call anybody. Then ACP told them that he is a Gazetted Officer and posted as ACP Operation Cell. He further told them that if they want, they can take search of him or his staff but they repeat their earlier stand. Then the polythene bag of light pink colour which was in the hands of Abbas Illahi was checked and in that one coloured cardboard box having written on english word - LIBERTY GLIDERS AT LEAST SOMETHING RIGHT. It was found containing one polythene having brown colour powder and it was found to be smack and on weighing it was found to 1 kilogram with polythene. 10 grams was taken as sample and was sealed in cloth parcel and rest of the smack was sealed in the same polythene and kept in same cardboard box. Both were sealed with the seal of CBS. Form FSL was filled up. Seal after use was given to SI Hukum Chand. Both the pullandas were seized by the police. SI Sunil Kumar who told him that it was the accused Ahmed Illahi who asked his commission and similarly Rs. 10,000/- was to be taken by accused Ahmed Illahi. The pullandas were sent to PS along with CFSL form which were given to the SHO with a request to put his seal on all pullandas and after putting his seal, the same to be deposited in the Malkhana.
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2. After registration of the case, challan was filed by the police to this special designated court for NDPS cases for trial.
3. Charge for the offence punishable U/s. 21 of NDPS Act was framed against the accused Abbas Illahi on 29.10.1999 and the charge for the offence punishable U/s. 29 R/W section 21 of NDPS Act was framed against all the three accused persons namely Abbas Illahi@ Sahid, Ahmed Illahi and Abdul Khalid to which they pleaded not guilty and claimed trial.
4. In support of its version prosecution examined as many as 11witness. PW1 is ASI Jai Prakash, Operation Cell, Lodhi Colony. He deposed that on 11.4.1999 he was posted at Operation Cell, Lodhi Colony. On that day Inspector Inder Singh was having a secret information regarding some Afgani, Irani boys are to sell the smack at Nizamuddin area. Inspector Inder Singh informed inspector C.B. Sharma about this information. Inspector C.B. Sharma talked to the informer and thereafter Inspector C.B. Sharma organized the raiding party comprised of SI Hukum Singh, SI Sunil Kumar, Constable Laxman, constable Tej Singh, driver, and they all in a government vehicle reached near Rajdoot Hotel, Nizamuddin. At about 4.45 p.m. the informer pointed towards one person. Inspector Sharma directed him and SI Sunil Kumar for striking the deal. He and SI Sunil Kumar went to that person for the deal. SI Sunil Kumar was a decoy customer and he 5 was shadow customer. SI Sunil Kumar talked to that person for purchasing one kilogram smack and that person told him that he will bring one kilogram smack and demanded Rs. 1 Lac for the same. He further told that he would charge a sum of Rs. 10,000/- as commission. He heard all this conversation and thereafter they both came and told Inspector C.B. Sharma. The person with whom SI Sunil had talked for purchase of the said smack is the accused present in the court as Abdul Khalid. Inspector C.B. Sharma informed ACP L.N. Rao, Operation Cell, on telephone who also reached at the spot at about 5.50 p.m. Public persons were asked to join the raiding party but none agreed and not disclosed their names and address. At about 6.15 p.m. person including accused Abdul Khalid came near Narang Dental Clinic, Jangpura, opposite Rajdoot hotel. On seeing him, he and SI Sunil went to them. Earlier they were given directions by Inspector C.B. Sharma that as soon as deal is completed, they would give signal to the raiding party. Accused Ahmed Illahi told that he would take Rs. 10,000/- as he had come as security with the smack. Accused Abbas Illahi was holding plastic thaila in his right hand which was of pink colour and the same was tied with a red rope/dori. After the talks with accused Abdul Khalid, SI Sunil Kumar gave a signal after putting his hand on his head and the other members of the raiding party apprehended all the accused persons. Inspector C.B. Sharma told to all the three accused persons that they are having information that you all are in possession of smack. All the 6 three accused persons were offered to be searched before any Gazetted Officer or Magistrate by Inspector C.B. Sharma but the accused refused the same. Notice U/s. 50 of NDPS Act was given to all the three accused persons separately. The said notice is exhibited as Ex. PW1/A of accused Abbas Illahi, Ex. PW1/B of accused Ahmed Illahi and Ex. PW1/C of accused Abdul Khalid. The notice bears the signatures of all the three accused persons at point A respectively. Thereafter ACP introduced himself as Gazetted Officer to all the three accused persons and told them if they desire, they can take search of the raiding party for which accused persons refused. Thereafter Inspector C.B. Sharma checked the polythene bag of accused Abbas Illahi which found containing one cardboard box which was having design of Mehendi. Again said, which was having print of liberty gliders on both the sides and the polythene bag was having design of Mehendi. The cardboard box was containing one polythene bag which was containing brown colour powder which was checked and it was found to be smack. The weight of smack including polythene came out to be 1 kilogram out of which sample of 10 grams was taken out and kept on a white paper and thereafter put in a black polythene and cloth parcel of the same was prepared. Both the parcels were sealed with the seal of CBS. The seal after use was handed over to SI Hukum Chand. The case property was taken into possession vide memo Ex. PW1/D. CFSL form was also prepared at the spot. Inspector C.B. Sharma made 7 endorsement mark A which he took to the PS-H.N. Din and got the case registered. He had also taken both the sealed pullanda and CFSL form duly sealed and handed over the same to SHO H.N. Din for safe custody. After registration of the case he came back to the spot and handed over the copy of the FIR to SI Hukum Chand. SI Hukum Chand prepared the site plan. The FIR number on Ex. PW1/A to Ex. PW1/D were mentioned by SI Hukum Chand after he brought the FIR. All the three accused persons were arrested in this case by SI Hukum Chand as investigation was taken over by him. The personal search of accused Abbas Illahi is Ex. PW1/E, accused Abdul Khalid is of Ex. PW1/F and of accused Ahmed Illahi is Ex. PW1/G. The copy of the notice U/s. 50 of NDPS Act mark A to C were recovered from each accused respectively in their personal search. At this stage a sealed parcel having seal of CBS and GCD intact condition is opened which contains one plastic bag having print of mehendi and the same contains one cardboard box having print of Liberty Gliders and the same was having transparent coloured polythene bag which contains light brown coloured smack powder which has been shown to the witness. The witness correctly identified the same plastic bag as Ex. P-1, cardboard box is Ex. P-2, polythene bag is P-3 and the smack powder is Ex. P-4. One another sealed parcel having the court seal was opened and found containing remnant sample in white cloth and black polythene and the same is identified by the witness as remnant 8 sample Ex. P-5,remnant paper is Ex. P-6 and polythene is Ex.P-7. In the cross-examination on behalf of accused Abbad Illahi, this witness deposed that he has no personal knowledge if the accused was involved in the trade or narcotic prior to the year 1999. The IO had not called any public witness in his presence. They left their office at 4.55 p.m. The departure entry was made in their office by the Inspector C.B. Sharma at 4.55 p.m. He did not call any public witness from the shops or from the houses nearby in his presence. SI Sunil Kumar was by his side when he struck the deal. When the deal was struck down, no papers were written at that time. He did not know accused Ahmed Illahi and Abbas Illahi prior to the said incident. The deal took about 15 minutes. The notice U/s. 50 of NDPS Act was given after 6.20 p.m. After the deal. The notice was written by Inspector C.B. Sharma. Three notices were prepared at the spot. He further says that FIR number on the notice was written later on. No other addition or subtraction was made. The FIR number was written after 11 p.m. but before 12 mid night. The accused were arrested after written the FIR number on the notice. Besides these three notices the FIR number was also recorded on Jamatalashi memo, recovery memo. He did not remember if the FIR number was written on any other documents except the notices. The IO did not put the FIR number on Jamatalashi memo in his presence at the spot. He must have written later on. The FIR No. on exhibits PW1/G, E and F were not written in his presence. The site plan was 9 prepared in his presence after he brought the FIR back to the spot. He did not remember if the FIR number was put on the site plan in his presence. His statement was recorded by the IO. He did not remember if he had told IO about his having written the FIR number on the notices later on. He was confronted with the statement Ex. PW1/Q1 where it was not recorded. He further deposed that FIR number was not recorded on the copy of the notice U/s. 50 of NDPS Act, recovered from the possession of the accused during his jamatalashi as per the jamatalashi memo Ex. PW1/E, F and G. He voluntarily says that the IO wrote the FIR number on those copies recovered from the accused after the jamatalashi was conducted. He did not remember if he had stated to the IO this fact in his statement. He was confronted with the statement Ex. PW1/Q-1 where it was not so recorded. He further deposed that Jamatalashi was not sealed. He did not remember if the witnesses were made to sign on the additions like recording of the FIR number on those documents subsequently by the IO. He denied the suggestion that Rajdoot Hotel is at a distance of 10 kilometer from the office. They have not called any police official from PS H.N. Din. The accused were taken to PS-H.N. Din and were produced before SHO. He had not made any separate entry. The duty officer recorded the FIR on the rukka. He had taken two pullandas and one CFSL forms with him to PS-H.N. Din. SHO was present in the PS and it took about one hour in the PS. He further deposed that the accused persons were taken to the PS 10 after 11 p.m. May be around 12 mid night. He admitted that the accused had not come to the PS till the pullanda were produced before the SHO and sealed the same and deposited them in the malkhana. He told IO this fact. He further deposed that he has not brought the rojnamcha. The departure entry was made in the register. Arrival entry was also made. Inspector Inder Singh had received the information. The secret informer disclosed that some Afgani and Irani boys were dealing with the narcotics in Nizamuddin. The information was reduced into writing separately. He had not signed any such piece of information if reduced in writing by Inspector Inder Singh. When they left the PS, he knew that there was information about some Afgani, Irani were selling smack. The departure entry was made by the IO for the entire staff except the ACP. He did not know if the fact of carrying weighing machine, packing and sealing material was made in the DD entry. He further deposed that the gate of Rajdoot Hotel was not on the side where they had gone hence he can not say if any security guard was standing on the gate of Rajdoot Hotel. He admitted that there is a police booth across Rajdoot Hotel, managed by PS Hazrat Nizamuddin. IO had asked 1-2 passers by to join the proceedings. No police official from PP was called in his presence. After talking to Abdul @ Hakim they had gone to the service lane behind Rajdoot Hotel and remained there till 6.15 p.m. The IO did not send any one to PS-H.N. Din in his presence between 5-6 p.m. The ACP had come to the spot at 5.50 p.m. 11 Whereas they saw the accused persons at 6.15 p.m. He did not know if IO had made arrangement for rupees one lac. The IO did not accompanied them when he and Sunil were strike the deal with the accused. Sunil Kumar was not carrying any bag or money with him. He admitted that it was decided that the accused would meet them again at the same spot where the deal was struck. He did not remember whose notice U/s. 50 of NDPS Act was prepared first or who was served with the notice U/s. 50 NDPS Act first. C.B. Sharma had signed the notice after getting the signatures of the accused. He did not remember if any other person except the IO and the accused had signed on the notice U/s. 50 of NDPS Act. He also did not remember if SI Udham Singh had signed the notice U/s. 50 of NDPS Act. He further deposed that the accused persons were apprehended by the entire staff. He can not give the specific name as to which accused was apprehended by which official. ACP L.N. Rao introduced himself as an ACP to the accused persons before their search and also offered that he was a Gazetted officer and if accused desired, they could be searched before him. He admitted that offer by ACP was given before the notice Ex. PW1/A, B and C, given to the accused. He further deposed that FIR Ex. PW1/DA was written in PS. Again said, SI Hukum Chand recorded the FIR number in Ex. PW1/DA but he can not say whether it was recorded in PS or at the spot. He had not given the description of the accused Abdul Khalid in the rukka sent by him. It was 12 between 5.30 p.m./6 p.m. when the deal was finalized. He did not offerto send one of his man with Abdul Khalid to bring the contraband. He can not say if the accused could only read and write in urdu and arabic only and did not know any other language. He voluntarily says that the accused had been talking to them in Hindi and he had not asked him to write any document to know what language he can write or read. He can not recall who had written the notice U/s. 50 of NDPS Act. He admitted that he had not given the offer in writing to the accused that he could take their search before his search. He denied the suggestion that all the aforesaid police officials were not present at the spot and for that reason their signatures did not appear on the noticeU/s. 50 of NDPS Act. He admitted that the accused had only written 'No' in his reply to the notice U/s. 50 of NDPS Act. He denied the suggestion that the reply was taken forcibly from the accused persons and their signatures were obtained on blank paper. He did not remember what Abdul Khalid was wearing at that time. Constable Laxman was sent to the house of the accused to inform his arrest after about 11.30 p.m. Copy of the notice U/s. 50 of NDPS Act was also found in the jamatalashi of the accused. They had reached the police station after 12 mid night. He did not remember if the relatives of the accused were present at the police station at that time. He further deposed that no body was called to join the investigation from Rajdoot Hotel. He denied the suggestion that all the proceedings were written in the police 13 station or that the accused Abdul Khalid was picked up from Lajpat Nagar on suspicion being an Afghan national and was falsely implicated in this case.
5. PW2 is SI Sunil Kumar. He deposed that on 11.4.1999 he was posted at Operation Cell Lodhi Colony. Inspector Inder Singh received a secret information which was passed through ACP to Inspector C.B. Sharma that some Afghani and Irani boys were trying to sell the smack. On this information he along with Inspector C.B. Sharma, SI Hukum Chand, Constable Laxman, ASI Jai Prakash and driver Tej Singh reached near Rajdoot Hotel in a government vehicle at about 5.10 p.m. , along with secret informer. The informer pointed out towards one person and told them to make a deal with him. Inspector C.B. Sharma made him as decoy customer and ASI Jai Prakash as shadow witness and they were directed to make a deal with that person. ASI Jai Prakash was directed to hear the conversations. He talked to the person whose name was Abdul Khalid, the accused present in the court, rightly pointed out by the witness. He talked to him about purchase of 1 kilogram of smack and accused Abdul Khalid told the price of smack as 1 lac and he also told him that he would charge 10% of the same as commission, i.e. Rs. 10,000/- separately. He told accused Abdul Khalid to reach at 6 p.m. on the same spot along with the smack. He immediately told inspector C.B. Sharma about the deal. The entire 14 facts were told to ACP on phone and he was also requested to come to the spot. ACP also arrived at 5.50 p.m. at the spot. Some public persons were asked to join the raiding party but they did not join the same and left the spot without disclosing their names and address. He was made a decoy customer and ASI Jai Prakash was made a shadow witness. He along with ASI Jai Prakash stood on the phoot-path opposite to Narang Dental Centre. At about 6.15 p.m. accused Abdul Khalid along with two more boys came there. One boy was holding a polythene in his right hand whose name was revealed as Abbas Illahi. He identified the accused present in the court. The name of 3rd person was Ahmed Illahi. He identified him also who had come with them as a security and disclosed that he would also take commission of Rs. 10,000/- in the deal. Thereafter he put his hand on his head and signaled the raiding party and all the three persons were apprehended by the members of the raiding party. Inspector C.B. Singh told the accused persons that there is information that they are in possession of smack and if they desired their search can be conducted before a Magistrate or Gazetted Officer to which all the three accused persons refused . All the three accused persons were given notice U/s. 50 of NDPS Act which are exhibited as Ex. PW1/A to Ex. PW1/C. In the meantime ACP introduced himself as a Gazetted Officer to the accused persons and they were told that they can take search of the raiding party as well as of ACP to which accused refused. 15 Inspector C.B. Sharma took search of the bag of accused Abbas Illahi which he was holding in his right hand which was of pink colour having a dori of red colour. The bag was containing one cardboard box, on checking it was having a polythene containing brown coloured smack powder. The total weight of smack along with polythene came out to be 1 kilogram out of which 10 grams smack was taken out as a sample which was kept in a white paper and black polythene and a cloth parcel of the same was prepared. The remaining smack was put in the same polythene and packing and separate parcels of the same were prepared. He further deposed that both the parcels were sealed with the seal of CBS. CFSL form was also filled up at the spot and same was also sealed. The seal after use was handed over to SI Hukum Chand. The case property and CFSL form were taken into possession vide memo Ex. PW1/D which bears his signatures at point B. The rukka was made by Inspector C.B. Sharma and handed over the rukka, entire case property, CFSL form and copy of seizure-memo to ASI Jai Prakash and he was sent to PS-H.N. Din Railway Station, for depositing the same for safe custody in Malkhana. Thereafter investigation was handed over to SI Hukum Chand. ASI Jai Prakash came back at the spot along with copy of FIR and rukka. After coming of ASI Jai Prakash, the FIR number was written on Ex. PW1/A to Ex. PW1/D. SI Hukum Chand prepared the site plan and accused Ahmed Illahi was arrested and his personal search was conducted vide memo Ex. 16 PW1/G. Personal search of the accused Abbas Illahi was conducted vide memo Ex. PW1/E and of accused Abdul Khalid vide memo Ex. PW1/Mark A to C were recovered in persnal search of the accused. SI Hukum Chand also recorded the disclosure statement of accused Abbas Ilahai Ex. PWPW2/B . IO also recorded the disclosure statement of accused Abdul Khalid Ex. PW2/C and of accused Ahmed Illahi Ex. PW2/D. At this stage case property is shown to the witness and the witness correctly identified the plastic bag as P-1, cardboard box as P-2, polythene as P-3 and smack as Ex.P-4. Another sealed parcel having seal of CFSL Chandigrah is opened which contained the remnant sample. The witness correctly identified the same as smack powder is Ex. P-5, white paper is Ex. P-6, and black polythene is Ex. P-7. In the cross-examination this witness deposed that he did not know at what time Inspector Inder Singh had received the information on 11.4.1999 nor he knew at what time he had informed about the same to the ACP. He further deposed that inspector C.B. Sharma told them about the spot at Rajdoot Hotel. The IO had not asked any person from the Rajdoot Hotel to join the investigation in his presence. He did not know the names of the other shops near the Narang Dental Center. The shutter of Narang Dental Center was closed at that time. The raiding party got down near the gate of Rajdoot Hotel. He did not make any enquiries from anyone around that place. Inspector C.B. Sharma asked several persons after he returned to the spot 17 after having struck the deal. He did not know the names and addresses of the person to whom inspector had asked to join the proceedings. He did not do any written work during investigation. The informer did not disclosed the name of the accused. He further deposed that except him and ASI, all of them were in civil dress. He was not having anything with him but IO was carrying the IO kit. His statement was recorded by the IO in the same night after midnight in his office i.e. Lodhi Colony, Operation Cell. IO had recorded the statement of ACP L.N. Rao, Inspector C.B. Sharma, ASI Jai Prakash in his presence on the same night. He did not remember whether this fact is recorded in his statement or not. He did not note the description of the accused anywhere. He admitted that SHO Nizamuddin was not informed by the members of the raiding party when they all reached there. He further admitted that the informer had not given the description of the accused persons and also the names. Accused Abdul Khalid had informed that he would come back with the smack and he was in hope that accused would come back. Inspector C.B. Sharma had assigned the work to him and also to ASI Jai Prakash. He did not know about the others. He did not tell the other members of the raiding party about the deal with accused Abdul Khalid before he left the spot. He further admitted that he had not taken the permission from his senior officers to allow accused Abdul Khalid to leave the spot. He voluntarily says that he was given instructions to decide the striking the deal himself. He had not 18 signed any documents in the Lodhi Colony. He did not enquire about the acquittance of accused persons with each other. He did not state in his statement U/s. 161 of Cr.P.C. The specific words used by accused Abdul Khalid at the time of striking the deal. He voluntarily says that he had told about the final deal struck with him. He further deposed that accused Abdul Khalid left the spot about 5.25 p.m. He was present at Rajdoot Hotel for about 15-20 minutes along with the team of officers at 5.25 p.m. to about 5.55 p.m. and left thereafter and took position at around 6 p.m. He further deposed that he was present in the police station when the information was received but the information was not received in his presence. He had not met the secret informer in the PS. He had not seen the secret information in writing. He voluntarily says that he was orally told about the information. The raiding party was constituted on the direction of Inspector C.B. Sharma, who was specifically deputed by the ACP for this case as Inspector Inder Singh was under transfer. He was not aware when Inspector Inder Singh was transferred but on that day he was on transfer. There were other Inspectors who were posted on that day in the Special Cell Office, their names are Inspector Tej Singh, Inspector Jai Singh, but he did not remember the names of the other police officials. Mr. L.N. Rao was the In-charge of Special Cell, Southern Range and Mr. Ashok Chand was In- charge of Special Cell, during that period. He did not know if any information was sent to the DCP Sh. Ashok Chand on that day. 19 ACP L.N. Rao had not accompanied the raiding party but later on reached at the spot. He had not made any departure entry in the DD register in this regard in his own hand. They all went in a Zipsy whose number he did not remember exactly which was driven by Driver Tej Singh. No public witness was tried to be associated by them during their visit from Special Cell Office to the spot. Before conducting the raid few passers-by were asked to join the raiding party but all refused and went away without telling their names and addresses. No efforts were made to join any person from Ranjit Hotel or from the taxi stand near the spot. He further deposed that the dental clinic was closed at that time. No person was asked to join the raiding party from the shops nearby the spot. At about 5.15 PM he had gone to meet Accused Abdul Khalid. He was standing alone near the Dental Clinic. He did not remember if he had seen any PCR vans near the place of incident. He further deposed that when he used the code name, Abdul Khalid had not asked his identity. Abdul Khalid had not inquired from him whether he was carrying the amount for the purchase of the said contraband. He had not told the accused Abdul Khalid to take him to the place from where he was to bring the contraband. He voluntarily says that he did not said so because if he would have told him to be taken to the place from where he had brought the contraband, he would have suspected him to be police official and then deal would not have been struck. He had not told any of his officers of the raiding party that they 20 should follow Abdul Khalid when he went to get the alleged contraband. He did not know till date from where the contraband was brought. In his presence the contraband was brought by the accused Abbas Ilahi. In the disclosure accused told that the contraband was brought from one Kadar Khan of Afgan. However, they did not know where Kadar Khan was residing. He cannot say in whose hand the disclosure Ex.PW2/B was recorded. It was recorded at the spot after 12.00 midnight but he did not remember the exact time. He was not having any tape- recorder with him. Conversation was not recorded. Rs. 1 lac were not brought at the spot and were not shown to the accused at all. The accused asked him whether the money was ready with him and he replied in affirmative. He was asked to show the money by the accused but he said that money would be shown after seeing the substance. Regarding the money to be shown was not mentioned in rukka or any other documents. He was not carrying any bag with him when went to them for the second time. ACP had reached at the spot before the accused persons were apprehended. No public person were joined at the time of apprehension of the accused persons. After about one hour Abdul Khalid had come at the spot. The accused persons were residing about 3 or 4 Km. away from the spot. No incriminating articles were recovered from the house of the accused persons. He did not remember if any investigation was done from the accused persons to know about and how they are obtaining the 21 contraband . ACP had also reached at the spot on his Govt. Zipsy but he dido not remember the registration number. He further deposed that the written proceedings were started at about 6.20 p.m to 9.50 p.m. by the first IO and thereafter further investigation was carried out by another IO which continued upto 12.00 (mid night). The first document was notice U/s 50 NDPS Act of one page each and it was hand written. He admitted that no legal right of accused was mentioned in the said notice. He also admitted that in the answer to the notice the accused has only written "No" and signed it. He did not remember in whose handwriting the notice was written. The writing from portion A to A U/s 50 NDPS Act. He further admitted that portion A to A was written in his presence. He did not remember whether any addition was made or not later on. The seizure memo Ex.PW1/D from portion A to A was written in his presence however, the case particulars i.e. FIR No. written on the top of the notice was not written in his presence. He did not know when and who wrote this FIR No. Same is his reply regarding the recovery memo. After recovery memo rukka was prepared. The rukka was sent at about 9.50 PM. The FIR was brought back at about 11.30 to 12.00 (midnight). His seal was not used for sealing the exhibits. After use of seal the same was handed over to SI Hukum Chand. He did not know when the intimation of Section 57of NDPS Act was sent to the higher authority He further admitted that nothing incriminating was recovered from 22 the possession of accused Abdul Khalid. Accused was arrested between 11.00 PM to 12.00 Midnight. I did not remember which document was prepared by which police officer/IO however, the same were prepared in his presence. ACP arrived at about 5.50 PM. Notice was given in his presence. He denied the suggestion that no recovery was effected in front of Rajdoot Hotel. He denied the suggestion that he has deposed falsely or all the documents were prepared in the police station. He further deposed that ACP has not instructed him to keep a public witness as a shadow witness. He had not made any attempt to join any public person as a shadow witness. He did not remember if IO Sh. C.B. Sharma had made any effort at any point of time to join any public person as a shadow witness. He denied the suggestion that no public witness was associated as a shadow witness because no such proceedings were conducted at the spot as stated by him. He has not seen any police booth in front of Rajdoot Hotel. He did not know if Abdul Khalid used to come oftenly at the said place or not because he has not interrogated him. Secret information was not with him at that time. He did not have any talk with the secret informer. He did not know to whom the secret information was given but he was informed by IO Sh. C.B. Sharma and he told him that he was given information by the secret informer. He further deposed that perhaps there was a taxi stand near the Rajdoot Hotel. No person from the said taxi stand was asked to join the proceedings at any point of time. He was 23 not asked by Abdul Khalid about the description or the contact number of the source. ACP L.N. Rao reached at the spot at about 5.50/5.55 PM. He had not asked ACP to arrange for a sum of Rs. 1 lac. The accused Abbas Ilahi and Ahmed Ilahi had signed in a language apparently as of English. He did not remember if he had signed on the notice U/s 50 NDPS Act in Hindi or English. He also did not remember if in the said notices the names of any of the accused was mentioned. One of the accused had answered to the notice as "No" while with regard to other accused he did not remember what they had stated. He cannot tell the name of the accused who had stated "No" in reply to the notice U/s 50 NDPS Act. He had seen the notices Ex.PW1/A , B and C and in the said notices do not bear his signatures. ACP did not tell the IO in his presence that since these persons are not conversant with the language, therefore an interpreter be called. He voluntarily says that they were speaking and understanding Hindi. Neither ACP nor IO had told any of the accused to write the reply of the notices in Hindi language. The bag was taken from the accused after giving notice to them. He did not remember who had written the names of the accused persons at point D on Ex.PW1/A, B and C. The FIR No. mentioned on the notices was not written in his presence and he also did not remember where it was written. He left the spot along with the members of the raiding party at about 12.00 Midnight. SI Hukum Chand who was already a member of the raiding party, was present there. ASI Jai Prakash returned at 24 the spot between 11.30 PM/12.00 Midnight and had brought FIR with him. No FIR number was mentioned on the notices in his presence. The personal search of the accused persons were conducted in his presence and the FIR number was mentioned on those documents in his presence. He had also signed on the personal search memos but he did not remember whether he signed in English or Hindi. I has seen Ex.PW1/E, F and G which are the personal search memos of three accused persons and it does not bear his signatures. Arrest memos were prepared in his presence but he did not remember if he had signed on the arrest memos. He did not remember to whom the information about arrest was sent. He did not remember whether the accused persons had signed on the arrest memos or not. He denied the suggestion that since nothing had happened in his presence, therefore the notice, personal search memos or the arrest memos does not bear his signatures. He also denied the suggestion that he was never decoy customer nor any such proceedings were conducted by him against the accused persons. Seal after use was given to SI Hukum Chand. ASI Jai Prakash had taken the case property and the copy of the seizure memo to the police station along with FSL form. He did not remember how many columns are in the FSL form. One seal each was fixed on the sample parcel. However, he did not remember how many seals were affixed on the case property. He did not remember if he himself or accused persons had signed on the parcel of case 25 property and samples. He further deposed that the contraband was weighed on electronic balance. He did not remember the colour of the digits displayed on the electronic balance. The samples were not tested by testing kit in his presence. He did not remember if any memo of handing over of seal to SI Hukum Chand was prepared or not. ACP had left the spot at the same time when the rukka was sent. He did not remember if ACP had signed any document at the spot in his presence. The statement of ACP was not recorded at the spot. His statement was recorded in the PS at about 4.00 AM. They took the accused persons first in the police station H.N. Din and the case property was not deposited in his presence. Nobody else statement was recorded in his presence. He did not remember if his statement was recorded by SI Hukum Chand or by somebody else. People were coming and going at the spot. However, local police had not came at the spot during their stay there. He had not seen any police booth near Rajdoot Hotel. He denied the suggestion that nothing incriminating was recovered from the accused nor they were arrested from the spot as stated by him. He further denied the suggestion that no proceedings was conducted at the spot nor any raiding party had gone there. He further denied the suggestion that the contraband has been planted upon the accused persons and they have been falsely implicated in this case.
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6. PW3 is SI Anil Kumar. He says that on 12.4.99 a report U/s. 57 of NDPS Act was received in the office of DCP Specia Cell vide diary number 716/ACP/SR dated 11.4.1999 which was received from the office of ACP Southern range, Operation Cell , which was sent by Inspector C.B. Sharma. As per record,the said report which is Ex. PW3/A bears the signatures of DCP Sh. Ashok Chand who had signed the same at point A, dated 12.4.1999. In the cross-examination this witness deposed that he cannot say the time when the said report was received in the office. The time is not mentioned in the receipt register Ex. PW3/A. He can identify his signatures as his DCP then, at that time he was not working as SO to DCP but he was working in special cell and he was their DCP at that time also.
7. PW4 is Inspector Chander Bhan, Operation Cell, Lodhi Colony, New Delhi. He says that on 11.4.1999 he was posted at Special Cell Lodhi Colony as Inspector. The ACP L.N. Rao directed him to develop a secret information which was being recorded by Inspector Inder Singh Dahiya vide DD No. 17. The information was regarding that some Afghani and Irani persons were trying to sell the smack in the area of PS Nizamuddin. A raiding party was formed consisting of SI Hukum Chand, SI Sunil Kumar, ASI Jai Prakash and constable Laxman Singh and driver Tej Singh and reached near Rajdoot Hotel around 4.55 p.m. The informer pointed out towards a person Abdul Khalid present in the 27 court. The informer left thereafter. He sent SI Sunil Kumar and ASI Jai Prakash to accused Abdul Khalid with the instruction. Both these officials were returned about 15/20 minutes and informed him that Abdul Khalid had agreed to get the deal finalized for purchase of approximately one kilogram of heroin and would charge commission of 10%. The deal was struck at the rate of Rs. 1 Lac per kilogram of smack for which Abdul Khalid would charge Rs. 10,000/- as commission. They also informed that accused Abdul Khalid would bring the smack by 6 p.m. ACP L.N. Rao was informed on telephone and he also reached at the spot at 5.50 p.m. The ACP was apprised about the facts. SI Sunil Kumar was the decoy customer and ASI Jai Prakash was the shadow witness. He further deposed that accused Abbas Illahi present in the court was holding a pink colour polythene bag in his right hand. All the accused persons were apprehended by the raiding party. They informed all the three accused persons about the information about smack in their possession. They also informed the accused persons that if they want their search could be conducted before a Gazetted officer or Magistrate but all the accused declined the same. Notice U/s. 50 of NDPS Act was given to all the three accused persons who signed on the notice in token of having received the said notices. Accused Abbas Illahi was carrying a pink colour plastic bag in his right hand. On checking the same a cardboard box was found therein. The pink colour polythene bag was having written the words ' Gopaljee' on 28 it. The cardboard box was containing brown powder in it which was found to be smack. On weighing it was found to be one kilogram out of which 10 grams were taken as sample which was kept in white paper and then wrapped in a black polythene. Thereafter white cloth parcel was prepared which was sealed with the seal of CBS. The remaining case property was put back in the cardboard box which was put back in pink polythene and then in the white cloth parcel which was sealed with the seal of CBS. CFSL form was filled up. Seal after use was handed over to SI Hukum Chand. The case property was seized vide memo Ex. PW1/D. Accused Ahmed Illahi disclosed that he had come with accused Abbas Illahi and Abdul Khalid as security and he was to get Rs. 10,000/- as commission. Thereafter rukka Ex. PW4/A was prepared and handed over the same to ASI Jai Prakash for registration of the case. He had also given the CFSL form to him with the direction to produce the same before SHO who would endorsed on the same and the duty officer to register the FIR. After registration of the case further investigation was handed over to SI Hukum Chand. At this stage two white cloth parcel bearing court seal were produced and opened. Larger cloth parcel is opened and found containing a packet of light pink colour polythene bag having printing of Gopaljee Silk and Sarees. The said polythene bag was containing printed cardboard box which contained brown colour powder in a polythene pouch. The witness identified the same which was recovered from the possession of 29 accused Abbad Illahi as Ex. P1 to Ex. P4. The smaller cloth parcel is opened and it was found containing remnant sample powder in a black polythene. The same is Ex. P5 to Ex. P7 collectively. He did not do anything else in this case. Thereafter Ld. APP requested to cross-examine this witnesses as witness is silent regarding report U/s. 57 of NDPS Act. In the cross-examination by Ld. APP for State this witness deposed that he has seen the report U/s. 57 of NDPS Act in this case which is Ex. PW3/A. He had sent the same to DCP special cell through the ACP. He further deposed that he had forgotten this fact earlier due to lapse of time. In the cross-examination by Ld. Defence counsel for accused this witness deposed that he had taken the copy of the DD entry with him which he had been endorsed by inspector Inder Singh. ACP L.N. Rao had not given any information to him in writing. He had asked him to develop the information contained in the DD. ACP had given the instruction at 4.35 p.m. The information was that the suspected persons would come to Nizamuddin area to sell the contraband. He denied the suggestion that the area in front of Rajdoot Hotel does not fall in the territorial jurisdiction of PS Nizamuddin. He further deposed that informer had taken them to Narang Dental Center opposite Rajdoot Hotel . The informer left the place immediately after pointing out the person i.e. Accused Abdul Khalid. The informer had not given them the name of accused Abdul Khalid. The description of the accused was also not given in the DD entry. He admitted that he 30 had not met Abdul Khalid earlier to the date of incident. He did not remember that if he had given any specific instructions of words to be used by the SI Sunil Kumar or ASI Jai Prakash to struck the deal with the accused Abdul Khalid. He voluntarily says that he had given them the reference of some person to be used to struck the deal which he did not remember now. There was distance of about 65 to 70 yards from the accused at that time. He was standing opposite to the police officials send to struck the deal, on the western side. He denied the suggestion that his statement his statement U/s. 161 Cr.P.C was recorded at the office at Lodhi Colony. According to him his statement must have been recorded by SI Hukum Chand. He did not remember the dress that the accused was wearing. He did not remember if he had given the details of the dress of the accused in his statement. The police officials had informed him that accused Abdul Khalid come with the smack along with some persons. He informed the ACP on mobile phone. He denied the suggestion that he had called the wife of accused Abdul Khalid at the spot or that she had come to the spot herself. ACP L.N. Rao had not signed any of the documents prepared at the spot in his presence. He voluntarily says that he did not consider it necessary to get his signatures. He further denied the suggestion that ACP L.N. Rao was not present when the notice U/s. 50 NDPS Act was given to the accused. They had asked 8/10 passersby approximately to join the proceedings. This fact was mentioned in the Asal Tehrir by 31 him. He was confronted with the rukka wherein the number of the passersby was not mentioned. He did not notice whether gate keeper of the Rajdoot Hotel was present there or not. He had not asked the gate keeper to join the proceedings. He further deposed that ACP had reached the spot at 5.15 p.m. He did not remember the exact time when the report U/s. 57 of NDPS Act was sent. ACP had signed on the seizure memo at the spot, he had not signed on the notice U/s. 50 of NDPS Act. He denied the suggestion that nothing was done in the presence of ACP L.N. Rao or that no raiding party was formed in the presence of ACP or that ACP was not at the spot at the time given by him above or that accused persons specially Abdul Khalid did not understand the language of the investigating officer or that no deal was struck with Abdul Khalid as alleged or that Abdul Khalid was arrested somewhere in Lajpat Nagar or that this case was planted on him falsely. He further denied the suggestion that information provided U/s. 57 was not sent within the stipulated period. He further deposed that ACP L.N. Rao had directed him to develop the secret information orally. They started from office of Special Cell around 4.50 p.m. He did not remember who had nabbed which accused. The contraband was weighed by the scale which he was carrying.
8. PW5 is Inspector Gurcharan Dass. He deposed that on 11.4.1999 he was SHO of PS-H.N. Din. ASI Jai Prakash came 32 to his office at about 10.40 p.m. and he produced two pullandas and CFSL form having seal of CBS. He affixed his seal of GD on both the parcels and CFSL form and deposited the same in the Malkhana in intact condition. In the cross-examination this witness deposed that ASI remained in his office for about 10 minutes. He did not know if any arrival entry of ASI Jai Prakash were recorded. His statement was recorded by SI Hukum Chand on the next day. He kept his seal after use with himself. He deposited the entire case property in the malkhana at about 10.15. He did not recollect the serial number of malkhana register regarding deposit the property. Accused persons were also produced before him at about 11.30 p.m. He did not remember who produced before him. He denied the suggestion that he is deposing falsely being expert police witness.
9. PW6 is R.M. Tripathi, Senior Scientific Officer, CFSL Chandigarh. He deposed that on 4.5.1999 one sealed parcel sealed with the seals of CBS and GCD was received in their laboratory along with sample seal and related documents through SI Manju Bala. Case was marked to him for chemical analysis. On opening the parcel he found it containing brown colour powder in paper and wrapped in polythene. After various chemical test and TLC analysis, the powder was found to contain diacetylmorphine( Heroin). The remnant of the parcel re-sealed and handed over to the concerned police authorities. He further 33 deposed that before opening the parcel the seals and the parcel were tallied with the specimen seal and found it intact and tallied with each other. His detail report is Ex. PW6/A bears his signatures at point A. This witness was not cross-examined on behalf of the accused.
10. PW7 is SI Manju Bala. She deposed that on 3.5.1999 she had taken sample parcel and CFSL form, a letter of ACP from MHCM of PS-H.N. Din, RC number she did not remember, for depositing the same at CFSL Chandigarh and she deposited the same on 4.5.1999 in CFSL Chandigarh. The parcel was having seal on it. She did not recollect the initial of seal. She further deposed that so far as case property remained with her, same was not tempered. The copy of RC by which she taken the property and CFSL form is mark A. She has not brought the original of the same. In the cross-examination by Ld. APP for State this witness admitted that seal of CBS and GCD were on the sample parcel and the same were also on the CFSL form. In the cross-examination by Ld. Defence counsel she deposed that she did not recollect the time when she had taken the sample parcel from MHCM on 3.5.99 . IO was not present at that time. So far as she recollectes, the parcel was given to her in the afternoon after 3 p.m. She deposited the chandigarh office around 12.30 p.m. Again said, on 4.5.1999 at 12 p.m. She kept the parcel with her during the night of 3.5.99 at her residence. She 34 denied the suggestion that she tempered the case property in her residence. She also denied the suggestion that CFSL was given to her by IO. Later on for that reason she did not recollect the seal. She denied the suggestion that she is deposing falsely.
11. PW7 is ASI Bhram Pal Singh. He deposed that on 11.4.1999 he was working as Head Constable at PS-H.N. Din, New Delhi and was incharge of the Malkhana. On that day SHO Gurcharan Dass deposited two pullandas containing smack duly sealed with seal of CVS and GCD along with CFSL form. He entered this case property at serial number 1773 in register number 19. On 3.5.1999 the sample pullanda along with CFSL form were sent to CFSL Chandigarh vide RC No. 11/21 through WSI Manju Bala. He also made entry in register number 19 pertaining to this. On 10.4.1999 the aforesaid sample pullanda having the seal of CVS and GCD along with CFSL form were sent through WSI Manju Bala vide RC No. 6/21 to the CFSL Chandigarh but the same could not be deposited and sample pullanda was returned to him along with the CFSL form in intact condition. He made entry to this effect in the malkhana register for redepositing the sample pullanda and CFSL form by SI Manju Bala on 20.4.1999. On 27.9.1999 the remnants of the sample duly sealed with seal of CFSL Chandigarh were brought by SI Hukum Chand and deposited with him in intact condition. He also made entry to this effect in register No. 19. The photocopy of entry of 35 deposit is Ex. PW7/A. The entry dated 20.4.1999 is Ex. PW7/B, entry dated 3.5.1999 is Ex. PW7/C, entry dated 27.9.99 is Ex. PW7/D. SHO Gurcharan Dass also signed under the note Ex. PW7/E at point A regarding deposit of two pullandas and CFSL form.
12. PW8 is HC Rajpal Singh. He says that on 11.4.99 he was posted as Duty Officer at PS-H.N.Din. On that day ASI Jai Prakash brought rukka Ex. PW4/A, on the basis of which he recorded the FIR Ex. PW8/A which bears his signatures at point A. In the cross-examination he denied the suggestion that FIR was ante time and that the entire proceedings as of writing of rukka etc. had taken place in PS.
13. PW9 is Inspector Inder Singh. He says that on 11.4.1999 he was posted in special cell, Lodhi Colony. The informer gave him information at his office that some persons were roaming in the Nizamuddin area for the purpose of selling smack. He recorded DD No. 17 at 4.30 p.m. The said DD is mark A. He further gave information about this fact to ACP L.N. Rao. On that day he was to proceed transfer hence ACP gave this information to Inspector Chander Bhan for further proceedings. In the cross-examination on behalf of the accused persons he deposed that he had given information to ACP verbally in his office after recording DD No. 17 immediately. The informer told 36 him that the persons were of young age boys. No other details were given by the informer. He had written DD No.17 himself. He denied the suggestion that DD No. 17 is false and fabricated.
14. PW10 is L.N. Rao, ACP, Shahdara, Delhi. He says that on 11.4.1999 he was posted as ACP special cell, Lodhi Colony. Inspector Inder Singh informed him that he had some information that some Afghan nationals were dealing in illegal narcotics trade. He lodged this information vide DD No. 17A of the same date. Since Inspector Inder Singh was under transfer so he deputed Inspector C.B. Sharma to develop this information and he departed to verifying this fact from special cell. At about 5.50 p.m. Inspector C.B. Sharma informed him on telephone that he has developed the information by deploying a decoy customer and the deal was finalized with the narcotics dealer for delivery of 1 kilogram of heroin in front of Rajdoot Hotel, Nizamuddin. He also requested him to join the raiding party. Accordingly, he went there and found that he has formed a raiding party consisting of SI Hukum Chand, SI Sunil Kumar, ASI Jai Prakash and others. SI Sunil Kumar was deputed as a decoy customer and ASI Jai Prakash was asked to be a shadow witness. At about 6.15 p.m. three persons reached to the decoy customer near Narang Dental Center opposite Rajdoot Hotel and one of them had some talk with the decoy customer. Another was having a bag in his hand. On receipt of a signal from decoy customer, the raiding party 37 zeroed down the suspects and all the three were encircled. Inspector C.B. Sharma informed all of them that he had some information that they had heroin in their possession, if they want to get themselves searched before any Gazetted Officer or Magistrate, they can do so. Notice U/s. 50 of NDPS Act was given them separately but all the accused persons refused to be search ed in presence of Gazetted Officer or Magistrate. He informed that he is an ACP special cell and is Gazetted Officer. He further deposed that it was disclosed to the accused that they have legal right to be examined in the presence of a Gazetted officer or Magistrate. All the accused persons put their reply on the notice U/s. 50 of NDPS Act by mentioning 'NO' and signing underneath. One polythene bag which was in possession of accused Abdul Abbas Illahi, was having two names. The plastic bag was having two cloth handles on which it was written Gopaljee Sarees. In that bag there was a cardboard box on which it was written Liberty Gliders. There was a polythene bag in that cardboard box. The polythene bag was found containing heroin which was weighed with the weighing machine kept by the IO. The weight of the Heroin came to be one kilogram out of which 10 grams were taken out as a sample which was kept in a separate polythene and a sample parcel was prepared which was tied with the tag and sealed with the seal of CBS. Remaining quantity of heroin was kept in a same polythene bag and kept as it is in cardboard box and then in a polythene bag and then in cloth pullanda and 38 sealed with the seal of CBS. CFSL form was prepared and seal of CBS was affixed on it. Both parcels and CFSL form were sezied vide seizure memo Ex. PW1/D which bears his signatures at point C. He further deposed that on his enquiry from the decoy customer, it was revealed that accused Abdul Khalid present in the court had entered a deal for supplying of one kilogram of Heroin for Rs. 1 Lac to the decoy customer. Out of this Rs. 1 Lac, accused Abdul Khalid was to receive a sum of Rs. 10,000/- as commission and third accused Ahmed Illahi was supposed to get Rs. 10,000/- as his commission for providing security to Abbas Illahi during the deal. The seal after use was given to SI Hukum Chand. Inspector C.B. Sharma prepared a rukka which was sent through ASI Jai Prakash along with sealed parcels, CFSL form, copy of seizure memo to the police station H.N. Din. He came to his office. Subsequently IO sent a report U/s. 57 of NDPS Act to him which was forwarded to DCP Special Cell to his office. Notice U/s. 57 to superior officers was duly forwarded by him and it is exhibited as Ex. PW10/A singed by him at point A. During further investigation it came to know that accused Abbas Illahi and Ahmed Illahi are Irani national and Abdul Khalid was an Afghani. He can identify the case property . MHCM produced sealed parcel sealed with the seal of court. The case property was correctly identified by him as Plstic bag P-1, cardboard box P-2, polythene bag P-3, smack P-4. MHCM produced one sealed envelop sealed with the seal of RMT . On opening the same it was found to 39 contain cloth parcel i.e. Sealing material and smack poweder wrapped in paper and black polythene taken out and shown to the witness. The witness identified the same which was taken as sample and was recovered from the accused Abbas Illahi in his presence. Smack is Ex. PW5/A, white paper is Ex.PW6/B and black polythene is Ex. PW7/C. New exhibits numbers were given to these articles as the case property was earlier sent to CFSL for further examination and these articles were already exhibited as smack powder Ex. P-5, white paper Ex.P-6 and black polythene Ex. P7. There is a statement Sh. Rajiv Sachhar,Advocate that he did not dispute the chemical examination report and he admit the report Ex. C-1 of CFSL, chemical examiner, Chandigarh dated 8.4.2004. In the cross-examination he deposed that he has not made any effort to join any public person after his reaching at the spot. They have arranged the bundles for a total sum of Rs.1 Lac being the paper bundles. No currency notes were affixed on those bundles to show them as if they were currency notes but this fact however is not mentioned in any seizure memo or even in his statement or any other document. He has not asked from C.B. Sharma and SI Sunil Kumar whether the accused persons have asked them to show the currency notes of Rs. 1 Lac nor they have told this fact to him. He voluntarily says that this proceedings had taken place before his reaching the spot. The accused were already been apprehended before any money could be seen. No weapon like revolver or knife was recovered from possession of 40 the accused Ahmed Illahi. He was standing by the side of hotel Rajdoot towards the eastern side. There was a taxi stand at about 50 yards from the place where he was standing. He did not know whether the IO had tried to associate any person from the said taxi stand. He himself has not gone to taxi stand to join any public person. He has not signed probably on any of the notice given U/s. 50 of NDPS Act. He has seen the notice Ex. PW1/A, B and C. which did not bear his signatures. He has not explained the meaning of Rajpatrit Adhikari to the accused persons. He voluntarily says that explaination of this words is not required. The accused were foreign nationals. He further deposed that Ahmed Illahi probably signed in Urdu while Abbas Illahi signed in English on the notice U/s. 50 of the NDPS Act. The signatures at point A on Ex. PW1/B appears to be in English and signatures on Ex. PW1/A appears to be in Urdu. None of the accused had written anything on Ex. PW1/A and Ex. PW1/B in Hindi. He did not know if accused persons were knowing Hindi. He advised the IO C.B. Sharma to obtain the complete reply in Hindi from the accused persons about their refusal to be searched before a Magistrate or a Rajpatrit Adihikari but it is the accused who wrote 'NO' in English and refused to write about their refusal to be searched before a Magistrate or a Rajpatrit Adhikari. No officer was summoned from Iranian Embassy at the spot at that time. He further says that IO must have informed to the Embassy. He did not know whether any such document was placed along with the 41 charge sheet or not. The accused persons were offered search of the police party but they refused. He did not remember if any memo was prepared in this regard by the IO. Both Inspector C.B. Sharma and SI Sunil Kumar had introduced to accused Abdul Khalid by the informer who came first to the police station and accompanied with police party. The informer after introducing the accused persons had left the spot and was not present when the deal was stuck. He voluntarily says that when he reached the spot, informer was not there. He further depose that probably the pen used by the accused persons was taken from the IO. The site plan was also prepared when he left the spot. The make of weighing machine he did not remember. The machine was about 1x ½ feet. The digits in electronic machine were depicting in white colour on black surface. He did not come to know from where Abdul Khalid called accused Abbas Illahi and Ahmed Illahi however later on he came to know this fact at the spot itself. He did not go from the spot along with team to the house of Abbas Illahi and Ahmed Illahi. Later on IO SI Hukum Chand had gone to the house of Abbas Illahi and Ahmed Illahi. No further recovery was made from their house. Jamatalashi was not done in his presence. He did not sign notice U/s. 50 of NDPS Act . Accused persons orally stated that they did not want to be searched in the presence of Gazetted Officer or Magistrate but they written only No as they were not much literate. Again said, they could not write more than No. He asked the accused persons the reasons for not 42 writing the detailed reply but they told that they will not write further. He denied the suggestion that accused persons were not knowing Hindi nor the language of the notice were explained to them. The bag was taken from the hands of Abbas Illahi by the IO in his presence. He was present at a distance of one meter from the IO at that time. He enquired from the accused persons as to why they used the box of cardboard when polythene bag was already there. To that they replied that to look it a pair of shows. He did not instruct inspector C.B. Sharma to send any person in plain dress to follow Abdul Khalid. Site plan was not prepared in his presence. Seizure memo was prepared in his presence. He did not remember if seizure memo was signed by the accused or not . After seeing the seizure memo the witness says that it does not bears the signatures of other two accused except accused Abbas Illahi from whom recovery was made. During his stay at the spot no police official went to PS. He alone went to his office. He further deposed that FIR number was mentioned later on as the place for FIR number was left blank initially. The FIR number is in different hand. He can not say whether it is the same ink as that of remaining part of document and of point A of Ex. PW1/D. He denied the suggestion that FIR number was written on Ex. PW1/D when he signed it. He further denied the suggestion that seizure memo was not signed by him at the spot or that he was not present at the spot. The small polythene in which sample was kept was tied by thread then 43 parcel was prepared with the help of cloth. He did not remember the name of person to whom seal after use was handed over. Again said, probably it was given to SI Hukum Chand. He admitted that SI Hukum Chand is the 2nd IO of this case. He also did not remember if he signed the cloth parcel or not. He did not ask inspector C.B. Sharma to hand over the seal to him after use being superior officer. No separate memo was prepared regarding handing over the seal after use. He did not remember to whom CFSL form was addressed. His statement was recorded on the next day morning in his office by SI Hukum Chand. He had stated in his statement U/s. 161 Cr.P.C. that Abdul Khalid had entered into a deal for supply of one kilogram of heroin for Rs. 1 Lac to decoy customer, out of which Rs. 10,000/- would be received by Abdul Khalid as his commission. He was confronted with the statement Ex. PW10/DA where it is not so recorded. He denied the suggestion that time 9.50 p.m. Mentioned at point A in Ex. PW10/DA was added later on. He denied the suggestion that he has deliberately not produced the entries of Log Book as he had never visited the spot and there was no such entry in Log Book. He further deposed that report U/s. 57 was brought by his reader to him.He has forwarded the report to the DCP but there was no mention on the said report to whom it was addressed. This report was forwarded to DCP. The signatures of DCP cell are not mentioned on Ex.PW10/A. He sent it to DCP vide No. 710/ACP/SR dated 11.4.1999. He further says that report was not 44 sent to DCP before recording his statement. He voluntarily says that it is a clerical mistake of date which is mentioned as 11.4.1999 instead of 12.4.1999. The date 11.4.99 was mentioned after his signatures. At the time of seizure he was senior most officer supervising the investigation. He himself did not sent any report to DCP. He denied the suggestion that Ex. PW10/A is a fabricated document. No public person came to the spot so long as he remained at the spot. The proceedings were written by sitting in the vehicle. No police official from nearest police picket came to the spot during this period. No prior information was given to PS H.N. Din and no information was sent to Iranian and Afghani Embassy from the spot. He denied the suggestion that no recovery from accused Abbas Illahi was effected in his presence nor accused Abbas and Ahmed were arrested at the spot as mentioned by him. He also denied the suggestion that signatures of accused persons were obtained on the papers by force and coercion. He further denied the suggestion that contraband was planted on the accused persons to falsely implicate them in the present case.
15. PW11 is SI Hukum Chand. He deposed that on 11.4.1999 he was posted at special cell Lodhi Colony. Inpsector C.B. Sharma called him in his chamber at their office and he found inspector C.B. Sharma, SI Sunil, ASI Jai Prakash present in the chamber of Inspector C.B. Sharma. Inspector C.B. Sharma 45 told him that some Afghani and Irani boys will come in the area of Nizamuddin and a person in the name of Abdul Khalid reached there at about 5 p.m. Who used to help in the sale of heroin from those Afghani and Irani boys and if Abdul Khalid is approached,he would talk about the deal. He also told him that those Irani and Afghani boys will come there along with illegal possession of heroin and if raided they could be apprehended. Inspector C.B. Sharma also told that this fact has already brought to the notice of ACP L.N. Rao. A raiding party was organized under the supervision of inspector C.B. Sharma consisting of himself, SI Sunil, ASI Jai Prakash, Constable Laxman and they left the office of special cell in a government gypsy driven by HC Tej Singh. Departure entry was made in the daily diary in this regard vide DD No. 19 at 4.55 p.m. Secret informer was also with them in same gypsy and they reached near Rajdoot Hotel Nizamuddin. Inspector C.B. Sharma asked some passersby to join the raiding party but none agreed to join the same and left the place. The secret informer pointed out towards one person who was standing near Narang Dental Clinic in front of Rajdoot Hotel, Nizamuddin. After pointing out secret informer left the place. SI Sunil and ASI Jaiprakash were directed by inspector C.B. Sharma to approach that person and to fix deal by disclosing their name as victor by one of them. Both the police officials met that person and SI Sunil talked to that person and fixed deal and after that they came back and stated that accused has told them to come at 6 p.m. At the 46 same place. In the meantime Inspector C.B. Sharma informed ACP to reach at the spot and also briefed him about the verification of the information and fixing the deal. At about 5.50 p.m. ACP along with his staff reached there in a government gypsy and he met them near service lane Rajdoot Hotel. Inspector C.B. Sharma asked 4/5 passersby to join the raiding party but none agreed to join and left the spot without disclosing their identity. Inspector C.B. Sharma again briefed SI Sunil and ASI Jai Prakash and were again directed to reach at the same place and fixed the deal and to wait for the supplier along with that person. SI Sunil Kumar was directed to give signal after moving his hand on his head after verifying the presence of supplier. At about 6.15 p.m. Three persons i.e. the person with whom deal was fixed earlier along with two other persons reached there and SI Sunil Kumar talked with all the three persons and thereafter he gave signal at about 6.20 p.m. All the members of raiding party reached there including ACP. All the three persons were surrounded by them and they were overpowered. The witness has pointed out towards the accused Abdul Khalid correctly and told that he is the same person who was pointed out by secret informer and with whom deal was finalized by SI Sunil Kumar and he has asked commission of 10% after finalization of the deal. The witness also correctly identified the other two accused persons. Inspector C.B. Sharma gave notice U/s. 50 of NDPS Act to all the three accused persons separately and told that he had information that they 47 have smack in their possession and if they want to be searched before any Magistrate or any Rajpatrit Adhikari, arrangement can be made. The accused were also told that it is their legal right. Notice U/s. 50 of NDPS Act was given to the accused persons are Ex. PW1/A to Ex. PW1/C. The accused refused to be searched before any Magistrate or any Gazetted officer by writing the word 'NO' and signed the same. ACP L.N. Rao introduced himself to the accused persons and told that he is ACP in Delhi Police and is Gazetted Officer/Rajpatrit Adhikari. ACP also told to the accused that if they want to take search of the raiding party including himself, they can do so. Accused persons refused to take the search of the members of the raiding party. Accused Abbas Illahi was carrying a polythene bag in his right hand and same was handed over by accused to Inspector C.B. Sharma. It was checked in the presence of ACP and other members of the raiding party and it was found containing a packet packed in cardboard. On opening the same it was found to contain one polythene containing brown colour powder which was smelling and appearance to be smack. It was weighed with the polythene only and plastic bag and cardboard box was not weighed. The total weight of smack powder alongwith plastic panni was one kilogram from which 10 gram was taken out as a sample by the IO and put in a small plastic pouch of black colour after wrapping in a paper remaining smack powder was put in same plastic panni and put in same cardboard and put in the plastic bag. FSL form was 48 filled up by the IO at the spot. Both the pullandas were sealed with the seal of CBS by IO and also put the same specimen seal on CFSL form. Both the pullanda and CFSL form were taken into possession by the IO vide memo Ex. PW1/D which bears his signatures at point E. Accused Abbas Illahi signed the same in Urdu at point X. Rukka was prepared and sent to PS through ASI Jai Prakash. IO also handed over both the pullanda, CFSL form and carbon copy of seizure memo to ASI Jai Prakash and directed him to hand over the same to duty officer at PS Nizamuddin and handed over the case property along with FSL form, carbon copy of seizure memo to SHO PS-Hazrat Nizamuddin. He also made request in the rukka to the SHO to put his seal on the exhibits and to deposited the same in the malkhana of PS H.N.Din. This witness also deposed that the accused Ahmed Illahi who is brother of accused Abbas Illahi during delivery of smack to SI Sunil at the spot demanded 10% of the sale amount as his commission and he told that he is also assisting the other accused in same business. After sending the rukka , ACP left the spot. After registration of this case SI Jai Prakash came back to the spot and handed over original rukka and copy of FIR to him. Disclosure statement of accused are Ex. PW2/B, PW2/C and PW2/D respectively and accused signed their disclosure statement however accused Ahmed Illahi refused to sign his disclosure statement. He prepared the site plan Ex. PW11/A with correct marginal notes. All the three accused were 49 interrogated by him and were arrested. Arrest memo was not prepared however personal search memo of accused Ahmed Illahi is Ex. PW1/G, of accused Abbas Illahi is Ex. PW1/E and personal search of the accused Abdul Khalid is Ex. PW1/F. During the course of investigation he sent information U/s. 57 of NDPS Act exhibited as Ex. PW10/A, duly signed by Inspector C.B. Sharma. He further deposed that name of one suspect Abdul Qadir came in the disclosure statement of accused. He tried to locate him and he was also arrested in this case but as no incriminating evidence was found against him so he was discharged during the course of investigation. He recorded the statement of witness during the course of investigation. Case property was sent to CFSL, Chandigarh. Report of expert is Ex. PW6/A which was collected later on and placed on record. He can identify the case property is shown to him. The witness correctly identified the case property which is the same which was recovered from the possession of the accused Abbas Illahi and same is exhibited as Ex. PW5/A is smack powder, white paper is Ex. PW6/B, black polythene is Ex. PW7/C. He further deposed that new numbers were given to these articles as the case property was sent to CFSL for further examination and these articles are already exhibited as smack powder Ex. P-5, white paper Ex. P-6 and black polythene Ex. P-7. In the cross- examination by Ld. Defence counsel the witness deposed that he was present in the office of C.B. Sharma. He was not called by 50 C.B. Sharma as he was with him in his office. He left the spot at 4.55 p.m. They were seven officials including informer for deal to the spot. They were not taking the actual currency but they had taken the bundles of papers which were arranged by inspector C.B. Sharma. He did not know from where he arranged the same. They all gone by one official gypsy to the spot and this gypsy did not belong to ACP. Inspector C.B. Sharma might have try to join the public persons at the spot but he did not try for the same. He did not remember what type of bundles were prepared or whether at the top and bottom original notes were placed or not. No memo of bundles were prepared. He has not mentioned about the bundle in any seizure memo prepared by him. He did not know what time secret informer came however he saw him at 4.30 p.m. The secret informer after pointing out the person left the spot. He did not remain present at the spot. He did not remember as to how many pieces of paper were there in the bundles. He also did not know the numbers of bundles. He admitted that in DD entry the amount of deal is not mentioned. He further says that it was informed by secret informer that deal can take place for Rs. 1 Lac. The secret informer did not tell the quantity of contraband with the accused persons nor it was told that how much amount deal is made. The information given to ACP is mentioned in the DD entry. He admitted that there are shops and residential flats, taxi stand near the Raju hotel. The SHO or ACP did not instruct any other official in this regard in his presence. He did not call any person 51 from shops, or residential shops and taxi stands to accompany him in the investigation. Notice U/s. 50 was served to the accused after arrival of ACP but ACP did not sign only inspector C.B. Sharma signed. He admitted that Ex. PW1/C, Ex. PW1/A and Ex. PW1/B portion B to B is in different ink. The contents of notice portion C to C is in his handwriting on Ex. PW1/A, Ex. PW1/B and Ex. PW1/C. He did not remember that on that day he had two pens. The notices were served by inspector C.B. Sharma to the accused. Inspector C.B. Sharma was instructing him when he was writing this notice. He can not give any reason why he has not written the notice himself. He did not remember if inspector C.B. Sharma was having injury in his hand on that day or not. The accused was explained about the Rajpatrit Adhikari that he is known as Gazetted Officer in English. He further admitted that all the three accused are foreign nationals but denied that they did not know Hindi. All the three accused persons knew reading and writing in Hindi language. The accused did not sign anywhere in Hindi. The accused only mentioned 'NO' and they did not give detailed reply. He can not tell the language in which the accused has signed. He denied the suggestion that accused persons did not know Hindi or English. He further denied the suggestion that notice U/s. 50 of NDPS Act ,Ex. PW1/A to C were prepared later on. He also denied the suggestion that signatures of accused persons were taken on blank papers in the police station. He further admitted that it was not recorded in the notice that accused 52 were explained about the Gazetted Officer. They were explained verbally. The accused did not try to escape. ACP left the spot at 9.50 p.m. In the presence of ACP, samples were drawn, pullanda were prepared, seizure memo was prepared and notice was served. The documents were prepared in gypsy under the street light where weighing machine was available. He further says that weighing machine was electronic type and its size was 6 inches x 12 inches. Notices were served on the accused after 6.20 p.m. Accused persons were told to give their detailed reply but they have only written NO. He did not ask accused Khalid as to from where he has called Abbas and Ahmed Illahi. The bag was recovered from accused Ahmed Illahi. He further deposed that he did not inform the concerned Embassy about the accused. He himself did not inform the concerned Embassy after arrest of the accused. He also did not know from where Khalid brought other two accused. He voluntarily says that all the three were present at the time of delivery. They took the search of the house of accused Abbas Illahi. No memo of house search was prepared. The house was double story and he was living on the first floor of the house. He mentioned FIR number on seizure memo after registration of the case. The seizure memo Ex. PW1/D is in his handwriting but on the direction of Inspector C.B. Sharma. Ex. PW1/D bears signatures of Inspector C.B. Sharma at point Y. The name of C.B. Sharma is not mentioned in the list of witnesses. Inspector C.B. Sharma knows how to write and on the said date 53 he was fit to write. ASI Jaiprakash has written the disclosure statement of all the accused persons on the spot. All the disclosure statement bears his signatures at point Y. On his request ASI Jai Prakash signed as witness on the disclosure statement. Report U/s. 57 of NDPS Act was sent by Inspector C.B. Sharma. He denied the suggestion that nothing was recovered from the accused as stated by him. He also denied the suggestion that accused were falsely implicated in this case. He further denied the suggestion that accused persons were lifted from Guest House in Vasant Vihar and contraband had been planted on the accused persons.
16. In the statement of accused U/s. 313 Cr.P.C. All the accused have stated that they have been falsely implicated in this case by the police and they are not concerned with this case. They further says that there is no public witness against them and all the police officials are the interested witnesses.
17. I have heard Ld. APP for State and Ld. Counsel for the accused and perused the record to my thoughtful consideration.
18. The Ld. Counsel for the accused contended that in a case where mere possession is an offence like NDPS Act, false implication by the police is not ruled out and to minimise the false 54 implication legislature has to make some provision in the Act as a safeguards are known and referred as technicalities of law and if there is non compliance of any, such requirement of law, then accused is entitled to be given benefit.
19. In this regard Ld. Counsel first of all referred the section 42 & 42(2) of NDPS Act vide which it was required by the prosecution to take down the information in writing and if any information is taken down in writing, he shall forthwith sent a copy thereof to his immediate superior official. However, this forthwith was subsequently changed by the amendment of the year 2001 as 72 hours. The Ld. Counsel for the accused also contended that in this case DD No. 17A was written as an information but prosecution has not shown the compliance of section 42(2) of NDPS Act was made by it rather it is admitted case of the party that no information was sent to any superior officer forthwith. In this regard Ld. Counsel for the accused cited the following judgments:-
(i) State of Punjab Vs. Balbir Singh, JT 1994(2) S.C. 108.
(ii) Abdul Rashid Ibrahim Mansuri Vs. State of Gujrat, AIR 2000 Supreme Court 821.
(iii) Jacob Mathew Vs. State of Punjab, 2005(2) JCC 1242.55
In the judgment of Abdul Rashid Ibrahim Mansuri Vs. State of Gujrat, It was held by Hon'ble Apex Court that once an information was received, information not written or it was not sent to the superior officers as required by Section 42 (2) of the NDPS Act, which the Hon'ble Supreme Court held that it was a case of non compliance of section 42 of the NDPS Act and accused was acquitted.
20. PW3 SI Anil Kumar deposed that on 12.4.1999 a report U/s. 57 of NDPS Act was received in the office of DCP Special Cell which is dated 11.4.1999. According to him it bears the signatures of DCP Sh. Ashok Chand who has signed the same at point A, alleged dated 12.4.1999. In the cross- examination this witness could not say at what time it was received as time is not mentioned. Though It was received in his presence and he was not working at that time with DCP but he can identify his signatures. In this regard PW-10 ACP L.N. Rao, is also a relevant witness. He in his chief examination says that he forwarded the report U/s. 57 of NDPS Act but in the cross- examination he says that he sent it to DCP on 11.4.1999. He further admitted that it was clerical mistake of date which he mentioned as 11.4.1999 instead of 12.4.1999 however he denied the suggestion that Ex. PW10/A is a fabricated one. Any how in this case date of arrest is 11.4.1999 and even if it was sent on 12.4.1999. I am of the view that it could not be said that there is 56 violation of section 57 of NDPS Act but since it was not sent forthwith prior to arrest on 11.4.1999 so this remains a case of non compliance of section 42(2) of NDPS Act as applicable at that time.
21. The 2rd arguments of the Ld. Counsel for the accused is regarding tempering of the samples. In this regard Ld. Counsel for the accused relied upon the statement of PW7 and Malkhana register No. 19. PW7 is Woman SI Manju Bala. She deposed that on 3.5.1999 she has taken sample parcel and CFSL form, a letter of ACP from MHCM of PS H.N. Din but she did not mention RC number. She deposited the same in Chandigarh Office on 4.5.1999. She was not able to recollect the initial of seal nor she recollect what seal was on the form. She says that so far as case property remained in her custody, it was not tempered with. She only put up the CFSL form as mark A as original was not brought by her. In the cross-examination by Ld. APP she admitted that seal of CBS and GCD were on the samples. In the cross-examination by Ld. Defence counsel she could recollect the time when she has taken the sample parcel but says that sample was kept at her residence in the night of 3.5.1999. The other witness in this regard is ASI Bhram Pal Singh who was working as MHCM. He was also examined as PW7. According to his statement, before 3.5.1999 sample was also taken on 10.4.1999 ( may be my mistake it should be 20.4.1999) for depositing in CFSL 57 Chandigarh, by WSI Manju Bala but she could not deposit the said pullanda and were returned to him along with CFSL form in intact condition and he made entry in this regard in the malkhana register but WSI did not depose in her examination regarding 10.4.99 & 20.4.99. The Ld. Counsel for the accused also stressed upon and argued that this all proved that sample were not handled properly and it is a doubtful case whether the samples were the same or not. In this regard Ld. Counsel also referred Malkhana register produced in the court Ex. PW7/A. In the said register there is an entry on 20.4.1999 referred as under- that Namuna sample of smack sealed with the seal of CBS & GCD for analysis is being sent through WSI Manju Bala vide R/C No. 6/21 and it was deposited back but it is very surprising that there is only one entry regarding sending and depositing whereas two separate entries should have been made while sending and if deposited back. This shows that samples were not handled properly. More-so, there is no mentioning regarding CFSL form sent along with the sample.
22. The 2nd entry is dated 3.5.1999. Again there is no mentioning whether CFSL form was also sent or not. In the entry regarding deposit of sample or case property, it is not mentioned that deposited samples and case property were sealed with both the seals.
58
23. In the column no. 2 of the register No. 19 form where name of the person who deposited, is required to be mentioned. The name mentioned is of Inspector C.B. Sharma, Special Operation Cell. Admittedly he is not the SHO of PS H.N. Din so sample and case property in this case were deposited by Inspector C.B. Sharma as per EX. PW7/A, not by the SHO nor it is mentioned whether CFSL form was deposited or not. The Ld. Counsel for the accused also relied upon the FSL form on record. Copy of FSL form here on record which have only one seal mark and the signatures of inspector Administration Cell, Lodhi colony, New Delhi. There is no other seal mark on it. In this case the prosecution was not vigilant enough regarding sending of the samples which were admittedly kept by WSI Manu Bala on the night of 3.5.1999 at her residence. More-so, there is no deposition with regard to earlier sent of the samples and even the case property,CFSL form and samples were not deposited by SHO Inspector,depositor C.B. Sharma is member of the raiding party, he was not SHO. There is clear violation of section 55 of NDPS Act which requires that the case property and samples to be deposited in the Malkhana by SHO under his seal. The said section 55 of NDPS Act is :- 'An officer in charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this act within the local area of that police station and which may 59 be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer in charge of the police station.
24. The Ld. Counsel also referred the copy of road certificate filed on record, as marked A. It is written in the said certificate, it is in Hindi ' today 3.5.1999 in case FIR No. 223/99, U/s. 21/61/85 of NDPS Act, PS-H.N. Din, Delhi- KA SAMPLE SMACK PULLANDA WITH BS & GCD SEALED FOR ANALYSIS THROUGH WSI MANJU BALA N0. D 779,SD, LODHI COLONY, CFSL OFFICE CHANDIGARH IS BEING SENT. It is no where mentioned in Road certificate that these pullanda were sent along with CFSL form though in the receive Column it was mentioned that one seal parcel along with duly filled CFSL form with sample seal was received. It seems that CFSL form was not taken from Malkhana, not sent through road certificate. It is best known to the prosecution from where the CFSL form was procured for sending. In this regard Ld. Counsel for the accused cited one judgments of Hon'ble Delhi High Court titled ' Radha Kishan VS. State, 2000 Drugs Cases 533' in 60 which Hon'ble High Court has referred as under:
NDPS Act, 1985- section 50 and 57- contraband recovered - it is the bounden duty and the obligation of the prosecution to ensure that the accused understands this valuable right in a proper, perspective, particularly, when the accused is an illiterate or a vagabond. Even educated people may not always understand the meaning of the abbreviation G.O. ( Gazetted Officer). In this view of the matter, it would hardly be proper to expect an illiterate vagabond to know the full meaning of abbreviation aware of his right, the chances of false implication can not be ruled out. The strict compliance of the provision of this section is absolutely imperative. The legislature in its wisdom has provided for a very stringent punishment- when the incriminating articles are seized and are required to be sent to the Central Forensic Laboratory, those articles are immediately sealed and deposited in Malkhana at the police station till they are taken out and sent to the laboratory. In the instant case this was not done. Contemporaneously with seizure 61 and sealing of such articles, impression of seal used on sealed articles is put on a form, commonly called, the CFSL form. This is so done because at the time of analysis of sealed packets in laboratory, the analyst concerned is able to tally seal impressions on sealed packets with those appearing on the CFSL form in order to rule out any possibility of tampering of seals on sealed packets after seizure anywhere or in transit till receipt m laboratory. The importance of the CFSL form thus can not over emphasized because this document provides a valuable safeguard to an accused to ensure that no tampering has been done during intervening period. The CFSL form is a document or forwarding note accompanying a sample sent by the police to the Forensic Science laboratory. Such a form contains the nature of crime, list of samples being sent for examination, nature of examination required and specimen of the seal/seals affixed on the exhibit besides particulars of the case/police station- in a large number of NDPS cases the Courts have observed that the prosecution has 62 to establish that the CFSL form was deposited in Malkhana and had thereafter been sent along with sample to CFSL otherwise there is a possibility that there could be tampering with seals of samples sent to CFSL, and as such sealed samples did not remain with their seals intact before reaching office of CFSL- The appeal is allowed only on the short ground that prosecution has failed to keep the sample of the contraband article intact before the same reached the Central Forensic Science Laboratory'.
25. The Ld. Counsel for the accused also cited the judgments titled ' Bhaskar Aayyar Kaunder Vs. State of Maharashtra, 1993 CRL.J. 2761'.In which it was held that:-
a) Narcotic Drugs and Psychotropic Substance Act ( 61of 1985) S. 52- Delay in dispatching sample of brown sugar- sample of brown sugar dispatched three weeks after the date of raid- delay can not be said to have changed character of the sample or caused any prejudiced to the accused- Held delay of 3 weeks could not be construed any undue delay. 63
b) Narcotic Drugs and Psychotropic Substance Act ( 61 of 1985), S. 52 - Sending sample to Chemical Analyser - Delay of five days during which sample packet had left Police Station and not reached office of Chemical Analyser in the same town- Gap of five days during which it was in the hands of constable not explained by the prosecution - Held accused was entitled to benefit of doubt because possibility of tampering or substitution could not be ruled out.
26. In this case there is non compliance of section 55 of NDPS Act. More-so, FSL form was not deposited in the malkhana, it was not taken out from the malkhana for sending the same to the CFSL. When the sample was first tested, as per report Ex. PW6/6A, the result is that Diactylmorphine was detected. It was sent again and as per 2nd report Ex. C-1, the presence of Diactylmorphine and Dizapam could not be estimated due to their law concentration. Whereas it was reported to have been found 38.5% morphine & 33.9% phenobarbital. Whereas charge was framed in the year 1999 for illegal possession of 1 kilogram of Heroin (Diacetylmprphine) against the accused Abbas Illahi. The charge regarding conspiracy of possession of 1 kilogram of Smack ( Diacetylmprphine) against all the accused.
27. The Ld. Counsel for the accused further argued that 64 there is non compliance of section 50 of NDPS Act. According to him non compliance is because that no interpretator was called and accused was not knowing Hindi language. A notice was shown to be in Hindi and there is no proper reply obtained. Further more, there was no proper official word. In this regard Ld. Counsel for the accused has referred the cross-examination of PW1 ASI Jai Prakash which was recorded on 27.07.2001 in which ACP L.N. Rao was stated to have introduced himself as an ACP to the accused persons before their search and he also offered that he was a Gazetted Officer and if the accused desired, they may be searched before him. The counsel further says that offer is not sufficient because ACP L.N. Rao was from the raiding party as he was a police official and not a Gazetted Officer. In this regard Ld. APP contended that all the witness have stated that accused persons were orally told about their right to be searched before Gazetted Officer or Magistrate and Notices were also given. In this regard Ld. Counsel for the accused cited the following judgments
a) K. Mohanan Vs. State of Kerala, 2000 Supreme Court Cases ( Cri) 1228,
b) Customs Vs. Sayyad Aga, Hon'ble High Court in Criminal appeal No. 44/1999.
c) Munna Lal Vs. State of Rajasthan, 2005, Drugs Cases, Hon'ble Rajasthan High Court.
65I do not find any of these authorities cited by Ld. Counsel for the accused helpful to the accused in the present case with regard to non-compliance of section 50 notice as it was held in the latest judgment of Hon'ble Apex Court that even if it was orally informed to the accused that he has right to be searched in the presence of Gazetted officer/ Magistrate, that is sufficient one and there is no specific proforma of writing the same. Furthermore, as per the witnesses the accused were well understanding Hindi Language.
28. The Ld. Counsel for the accused further advanced argument with regard to non joining of public witness, some contradictions in the statement of the witness. There is also a dispute whether currency notes were taken by the decoy customer though some of the witness says that paper bundles were made for the same. Non use of victor name by decoy customer, PW1, PW2 and PW4 though says that secret informer showed the accused from a distance whereas PW10 says that informer introduced the accused. Even the seal was given to SI Hukum Singh who was the 2nd IO and in the in the first FSL report Ex. Pw6/A substance was stated to be brownish coloured powder and subsequent FSL report Ex. C-1 it was shown to be brownish coloured sticky powder.
29. The Ld. Counsel for the accused also relied upon 66 the judgment titled ' Ritesh Chakarvarti Vs. M.P. State, of Hon'ble Supreme Court of India. In which it was being held by hon'ble Supreme Court of India that there is another aspect of the matter which cannot be lost sight of while dealing with a case of grave nature like the present one, there is always a danger that conjectures and suspicion may take the place of legal truth. It is further held that it is settled principle of criminal jurisprudence that the more serious offence, the stricter the degree of proof. Since a higher degree of assurance is required to convict the accused. Further that however strong or genuine can not amount to a legal conviction supportable in law. Any how I do not find any reason to go into details, though it is practically hard to find public witness to join the investigation.
30. In the sum up the case, this court comes to the conclusion that in this case there is non compliance of section 42(2) of NDPS Act and also the handling, keeping, sending the case property, deposit sample and CFSL form is doubtful and the accused in this case are in Judicial custody for near 8 years. A little doubt like this where stringent punishment is provided, entitled the accused of benefit. Accordingly, Considering the entire facts and circumstances of the matter, the accused are acquitted.
ANNOUNCED IN THE OPEN ( S.N. Gupta )
COURT ON 7th DAY OF Addl. Sessions Judge
APRIL'2007. Patiala House Courts,
New Delhi.