Delhi District Court
State vs 1. Imran Khan (Bail) on 22 December, 2014
IN THE COURT OF SH. SANJAY SHARMA : SPECIAL JUDGE (NDPS) / ADDL. SESSIONS JUDGE, (NORTH-EAST): KARKARDOOMA COURTS, DELHI SC No. : 35/11 FIR No. : 196/11 PS : Crime Branch U/Sec. : 21/29 NDPS Act Case ID : 02402R0336952011 State Versus 1. Imran Khan (Bail) S/o Sh. Ikram Khan R/o P.S. Kasba, Bisarat Ganj, District Bareilly, U.P. 2. Ashfaq (Bail) S/o. Sh. Raunak R/o H. No. 786, Gali No. 1, Kabir Nagar, Shahdara, Delhi. 3. Ishakat (Proclaimed Offender) S/o Sh. Sakhawat R/o Nai Basti, PS Fateh Ganj West District Bareilly, U.P. 4. Dalsher (Proclaimed Offender) S/o Sh. Walisher R/o Nai Basti, Noor Masjid, Fateh Ganj West, District Bareilly, U.P. Date of Institution : 05.11.2011 Date of reserving order : 08.09.2014 Date of Judgment : 22.12.2014 JUDGMENTFIR No. 196/11 State Vs. Imran Khan & Ors. Page No. 1/24
THE PROSECUTION CASE:
1. On 25.07.2011 at about 5.15 p.m., PW-10 SI Satyawan received an intelligence from a secret informer in the police station Narcotics Cell, Delhi that Imran, a resident of Bisarat Ganj, Bareilly, U.P. in association with Ashfaq and Mushahid Khan, residents of Kabir Nagar, Shahdara, Delhi used to sell and purchase heroin and he would come near Majar, Shastri Park Metro Station to supply heroin to Ashfaq between 6.30 p.m.-7.30 p.m. and If immediately raided, they could be apprehended. PW-10 SI Satyawan made requisite enquiry from the secret informer and satisfied himself.
2. At about 5.30 p.m., PW-10 SI Satyawan produced the secret informer before PW-6 Insp. Kuldeep Singh, SHO, Narcotics Cell and briefed him about the secret information.
PW-6 Insp. Kuldeep Singh made requisite enquiry from the secret informer and satisfied himself. He conveyed the secret information to ACP Bir Singh, N & CP through telephone who directed him to take legal action and conduct a raid.
3. At about 5.45 p.m., PW-10 SI Satyawan reduced the secret information into writing in rojnamcha register vide DD No. 28 Ex.PW3/A and submitted a copy thereof to PW-6 Insp. Kuldeep Singh as required under section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred as 'the NDPS Act'). He constituted a raiding team comprising himself, PW-1 HC Abdul Haqeem, HC Mukesh and PW-7 Ct. Yogesh and the secret informer.
FIR No. 196/11 State Vs. Imran Khan & Ors. Page No. 2/244. PW-10 SI Satyawan collected IO bag, field testing kit and electronic weighing machine. At about 6.00 p.m., he alongwith raiding team departed from Narcotic Cell in an official vehicle No. DL 1 CM 4228 which was driven by HC Om Prakash vide DD No. 29 Ex.PW10/A. He requested 4 passers- by on the pushta road and in front of cremation ground, Gandhi Nagar to join the raiding team after disclosing his identity and secret information but they expressed genuine excuses and proceeded on their way without disclosing their names and addresses.
5. At about 6.20 p.m., PW-10 SI Satyawan alongwith raiding team reached at majar, near Shastri Park Metro Station. He briefed the members of the raiding team in detail and positioned them within the radius of 50 meters near the place of information and started waiting for the accused persons.
6. At about 6.40 p.m., accused Imran Khan was seen coming from the side of Geeta Colony on foot with a black polythene in his right hand and halted near majar. Secret informer identified him as Imran Khan. He started looking around stealthy. He started waiting for someone. After 6-7 minutes, accused Ashfaq Khan came from the side of jhuggies of Shastri Park on foot and started talking to accused Imran Khan. Secret informer identified him as Ashfaq Khan and left the spot. Accused Imran Khan handed over black colour polythene to accused Ashfaq Khan who checked the substance inside the said polythene by taking it on his palm and smelt it.
FIR No. 196/11 State Vs. Imran Khan & Ors. Page No. 3/247. Thereafter, they talked with each other for 203 minutes and thereafter, accused Ashfaq Khan returned the said polythene to accused Imran Khan and started walking towards Shastri Park jhuggies.
8. At about 7.00 p.m., PW-10 SI Satyawan with the assistance of accompanying staff apprehended them. He introduced himself and the members of the raiding team to them. He informed them about the secret information and their legal rights. He had given a notice under section 50 of the NDPS Act Ex.PW1/A to the accused Imran Khan and carbon copy thereof is Ex.PW1/N which was served upon him. He had given a notice under section 50 of the NDPS Act Ex.PW1/B to the accused Ashfaq Khan and carbon copy thereof is Ex.PW1/O which was served upon him. He explained the meaning of Gazetted Officer or Magistrate to both of them. Accused Ashfaq Khan stated that he was not highly educated and accused Imran Khan stated that he was an illiterate and therefore, he read over and explained the contents of the said notices to both of them. Both the accused understood their legal rights and declined to avail them. Therefore, PW-10 SI Satyawan recorded their refusal in Hindi on the original notices and read over and explained the contents to both of them. Refusal of accused Imran Khan is Ex.PW1/C and refusal of accused Ashfaq Khan is Ex.PW1/D. Accused Imran Khan acknowledge the correctness of the refusal so recorded by affixing his left thumb impression and accused Ashfaq Khan by putting his signatures in Hindi.
FIR No. 196/11 State Vs. Imran Khan & Ors. Page No. 4/249. PW-10 SI Satyawan requested 8-10 persons out of several persons gathered there out of curiosity to join the proceedings but none of them agreed and proceeded on their way without disclosing their names and addresses.
10. Thereafter, PW-10 SI Satyawan conducted cursory search of accused Imran Khan. He taken the black colour polythene from the right hand of accused Imran Khan. He checked the said polythene. It was having one transparent polythene containing light brown colour material inside it. He opened the said transparent polythene. He checked the said powder with the help of field testing kit. It was found to be heroin. He weighed the heroin with polythene on an electronic weighing scale. It weighed 350 grams. He drawn 2 samples of 5 grams each from the recovered heroin and kept them into two small polythene and converted them into two cloth parcels which were given mark A and B respectively. The remaining 340 grams heroin was kept in the same transparent polythene which was kept in the black colour polythene and converted into a cloth parcel which was given mark C. He filled form FSL and all the three parcels were sealed with the seal having impression '7A PS NB DELHI'. He affixed the said seal on form FSL. Seal after use was handed over to PW-1 HC Abdul Haqeem. He seized the said three sealed cloth parcels and form FSL vide seizure memo Ex.PW1/E. Thereafter, he conducted personal search of accused Ashfaq Khan. However, nothing incriminating was recovered therefrom. He prepared a non-recovery memo.
FIR No. 196/11 State Vs. Imran Khan & Ors. Page No. 5/2411. PW-10 SI Satyawan prepared a rukka Ex.PW10/B and handed it over to PW-7 Ct. Yogesh for registration of FIR. He handed over him the three sealed cloth parcels, form FSL and carbon copy of seizure memo with the direction to hand over the same to PW-5 Insp. C.R. Meena, SHO, PS Crime Branch, Delhi. At about 10.30 p.m., PW-7 Ct. Yogesh proceeded from the spot to PS Crime Branch in official vehicle.
12. At about 11.30 p.m., PW-7 Ct. Yogesh reached at police station Crime Branch, Nehru Place and handed over rukka to PW-8 ASI Ajit Singh, Duty Officer and thereafter, he handed over the said three cloth parcels mark A, B and C, form FSL and carbon copy of seizure memo to PW-5 Insp. C.R. Meena, SHO, PS Crime Branch.
13. PW-8 ASI Ajit Singh, Duty Officer, PS Crime Branch, Nehru Place, Delhi recorded kayami vide DD No. 21 Ex.PW8/A on receipt of rukka from PW-7 Ct. Yogesh at about 11.30 p.m. He got the case FIR Ex.PW8/B recorded through computer operator and recorded bandi DD No. 24 Ex.PW8/D. He made endorsement Ex.PW8/C on the rukka. He assigned further investigation of the case to PW-9 SI Bhagwan Singh and handed over a copy of FIR alongwith rukka to PW-7 Ct. Yogesh.
14. PW-5 Insp. C.R. Meena counter-sealed the said 3 sealed cloth parcels and form FSL with his official seal having impression 'CRM'. He enquired FIR number from Duty Officer and mentioned it on the said sealed parcels, form FSL and carbon copy of seizure memo.
FIR No. 196/11 State Vs. Imran Khan & Ors. Page No. 6/2415. At about 12.00 mid-night, PW-5 Insp. C.R. Meena called PW-4 HC Jag Narain, In-charge, malkhana to his office with Register no. 19. He handed him over the said 3 sealed cloth parcels, form FSL and carbon copy of the seizure memo. PW-4 HC Jag Narain made an entry at sl. no. 1188 in Register no. 19 regarding deposit of the said articles in malkhana and a copy of the relevant page containing the said entry is Ex.PW4/A. PW-5 Insp. C.R. Meena signed the column no. 3 of the said register and made an entry in the rojnamcha register vide DD No. 23 Ex.PW5/A in that regard at 12.30 a.m. on 26.07.2011.
16. At about 12.15 a.m. on 26.07.2011, PW-9 SI Bhagwan Singh received information about entrustment of the investigation from HC Om Prakash in Narcotics Cell, Shakarpur, Delhi. He alongwith HC Om Prakash proceeded to majar, Shastri Park Metro Station, Delhi in the said official vehicle vide DD No. 2 Ex.PW9/A.
17. At about 12.30 a.m. on 26.07.2011, PW-9 SI Bhagwan Singh reached at the spot where he met PW-10 SI Satyawan, PW-1 HC Abdul Haqeem and HC Mukesh. PW-10 SI Satyawan handed him over the documents and custody of the accused Imran Khan and Ashfaq Khan to him.
18. PW-9 SI Bhagwan Singh prepared the site plan Ex.PW9/B at the instance of PW-10 SI Satyawan. He recorded statement of HC Abdul Haqeem. After interrogation, he arrested accused Imran Khan vide arrest memo Ex.PW1/G. FIR No. 196/11 State Vs. Imran Khan & Ors. Page No. 7/24
19. PW-9 SI Bhagwan Singh conducted personal search of accused Imran Khan vide personal search memo Ex.PW1/J. In his personal search, carbon copy of the notice under section 50 of the NDPS Act Ex.PW1/N and a sum of Rs.200/- were recovered. He arrested accused Ashfaq Khan vide arrest memo Ex.PW1/H and conducted his personal search vide personal search memo Ex.PW1/K. In his personal search, he recovered a carbon copy of notice under section 50 of the NDPS Act Ex.PW1/O and a sum of Rs.160/-. He recorded disclosure statement Ex.PW1/L of the accused Imran Khan and disclosure statement Ex.PW1/M of accused Ashfaq Khan.
20. At about 04.30 a.m., SI Bhagwan Singh alongwith the members of the raiding team and the accused persons proceeded from the spot and at about 05.15 a.m., he reached at PS Crime Branch, Nehru Place. He deposited articles recovered from personal search of the accused Imran Khan and Ashfaq Khan with PW-4 HC Jag Narain, In-charge, malkhana vide serial no. 1189 in the register no. 19 and photocopy of the relevant page containing the said entry is Ex.PW4/B. He recorded statement of Insp. C.R. Meena and HC Jag Narain and left PS Crime Branch, Nehru Place at about 06.30 a.m.
21. At about 07.50 a.m., PW-9 SI Bhagwan Singh reached at Narcotics Cell vide arrival entry DD No. 5 Ex.PW9/C and produced the accused persons before PW-6 Insp. Kuldeep Singh, SHO, Narcotics Cell. He submitted a report under section 57 of the NDPS Act Ex.PW3/C to Insp. Kuldeep Singh.
FIR No. 196/11 State Vs. Imran Khan & Ors. Page No. 8/2422. PW-10 SI Satyawan submitted a report under section 57 of the NDPS Act Ex.PW3/B to PW-6 Insp. Kuldeep Singh who forwarded both reports to senior officers of police.
23. In his disclosure statement Ex.PW1/L, accused Imran Khan disclosed that he purchase heroin from Dilshar and Ishaqat, residents of Bareilly, U.P. and he could get them arrested. He was taken to Fatehganj, West, Bareilly, U.P. but the said persons could not be arrested.
24. On 05.08.2011, PW-2 Ct. Satpal, as per direction of PW-5 Insp. C.R. Meena, SHO, Crime Branch deposited sample parcel Mark A and form FSL with FSL, Rohini vide RC No. 367/21 Ex.PW4/C and acknowledgement receipt Ex.PW4/D.
25. Sh. M.L. Meena, Senior Scientific Officer (Chemistry), Forensic Science Laboratory, Rohini examined sample parcel Mark A. According to FSL report Ex.PW9/E, sample parcel Mark A was received on 05.08.2011 through Ct. Satpal and seals were intact and tallied with the specimen seals as per forwarding letter (FSL FORM). The report is as under:
DESCRIPTION OF ARTICLES CONTAINED IN THE PARCEL (S) EXHIBITS(S) Parcel-'A' One cloth parcel sealed with the seals of "7A P.S./N.B. DELHI (One) & "CRM" (One). It was found to contained exhibit 'A', kept in a polythene pouch tied with rubber band.
Exhibit-'A' Brown coloured powdery material along with friable Lumbs stated to be 'Heroin', weight approx. 6.31 gm. with polythene.
RESULTS OF EXAMINATION/OPINION On Chemical, TLC and GC examination, (i) Exhibit 'A' was found to contain Diacetylmorphine, Phenobarbital, Paracetamol and Caffiene.
(ii) The Percentage of Diacetylmorphine and Phenobarbital were found to be 6.97%, 6.41% respectively in exhibit 'A'.FIR No. 196/11 State Vs. Imran Khan & Ors. Page No. 9/24
26. On appraisal of material on record, accused Imran Khan was charged under section 21 (C) of the NDPS Act. Accused Ashfaq Khan was charged under section 29 of the NDPS Act. They pleaded not guilty and claimed trial.
27. During the evidence, prosecution examined 11 witnesses, as under:
The witnesses Description of the witnesses PW-1 HC Abdul Haqeem Recovery witness PW-2 Ct. Satpal Sample depositor PW-3 HC Om Prakash Reader to ACP, Narcotics Cell PW-4 HC Jag Narain In-charge, malkhana PW-5 Insp. C.R. Meena Officer-in-charge, PS Crime Branch PW-6 Insp. Kuldeep Singh Officer-in-charge, Narcotics Cell PW-7 HC Yogesh Recovery witness PW-8 ASI Ajit Singh Duty Officer PW-9 Insp. Bhagwan Singh Investigating officer PW-10 SI Satyawan In-charge, raiding team PW-11 HC Narender Brought rojnamcha register
28. On completion of the prosecution evidence, incriminating circumstances appearing in evidence against the accused persons were put under section 313 Cr.P.C.
29. Both the accused persons pleaded innocence and claimed false implication. According to them, no heroin was recovered from their possession. They stated that the recovery witnesses deposed against them being police officials and interested witnesses. They stated that their signatures/thumb impressions were obtained on some blank papers, some written documents and some proformas, forcibly.
FIR No. 196/11 State Vs. Imran Khan & Ors. Page No. 10/2430. In defence evidence, the accused persons have not examined any witness.
31. I have heard Sh. I.H. Siddiqui, Ld. Addl. PP for the State and Sh. Sarfaraj Asif, Ld. defence counsel and considered the evidence, oral and documentary, on record.
32. Sh. I.H. Siddiqui, Ld. Addl. PP for the State submitted that the prosecution has proved compliance to the provisions of section 42, 50, 55 and 57 of the NDPS Act. In the alternative, he submitted that the recovery of heroin was effected from a polythene bag carried by the accused Imran Khan and as such, provision of section 50 of the NDPS Act is not applicable. He submitted that the prosecution has examined recovery witnesses namely PW-10 SI Satyawan, PW-1 HC Abdul Haqeem and PW-7 HC Yogesh. He submitted that the said recovery witnesses have proved the recovery of heroin from accused Imran Khan. He submitted that accused Ashfaq Khan had checked the heroin and handed it over to accused Imran Khan and as such, he had the knowledge and dominion over it. He submitted that accused Ashfaq Khan was a partner in the crime. He submitted that the heroin recovered from the accused Imran Khan was properly preserved, sealed and deposited in the police malkhana. He submitted that the sample parcel remained intact till its examination by FSL. He submitted that non-association of public witnesses is not fatal to the case of the prosecution as PW-10 SI Satyawan made several efforts to join independent witnesses.
FIR No. 196/11 State Vs. Imran Khan & Ors. Page No. 11/2433. Sh. I.H. Siddiqui, Ld. Addl. PP for the State submitted that public is averse to become witness in such matters since they do not want to involve themselves. He submitted that there is no infirmity in the depositions of the recovery witnesses. He submitted that there is no contradiction in the depositions of the recovery witnesses. He submitted that the recovery witnesses have proved that heroin weighing 350 gms. was recovered from accused Imran Khan and accused Ashfaq Khan abetted and was a party to the conspiracy to commit the crime and therefore, the accused persons are liable to be held guilty for the charges framed against them.
34. Sh. Sarfaraj Asif, Ld. defence counsel submitted that provision of section 50 of the NDPS Act is applicable as the personal search of the accused Imran Khan and Ashfaq Kahn was carried out. He submitted that the accused persons were not informed about their legal right to be searched in the presence of a Gazetted Officer or a Magistrate. He submitted that accused persons were not informed that they could be taken to the nearest Gazetted Officer or the nearest Magistrate for conducting their search. He submitted that the accused persons were not taken to the nearest Gazetted Officer or the nearest Magistrate. He submitted that the place of apprehension of the accused persons was located in a crowded area. However, no effort was made to associate any public witness despite availability and therefore, it casts doubt on the prosecution case.
FIR No. 196/11 State Vs. Imran Khan & Ors. Page No. 12/2435. Sh. Sarfaraj Asif, Ld. defence counsel further submitted that there was delay of 12 days in sending sample parcel to FSL, Rohini for chemical analysis. He submitted that the seal remained with the raiding team during that period and therefore, the possibility of tampering cannot be ruled out. He submitted that there are material contradictions in the depositions of the recovery witnesses. He submitted that the prosecution has failed to prove its case beyond doubt. NON-COMPLIANCE OF SECTION 50 OF THE NDPS ACT:
36. Issues arisen for consideration are whether the provision of section 50 of the NDPS Act would be applicable to the present case and if applicable, whether the obligation under section 50 of the NDPS Act was statutorily discharged.
37. Issue of applicability of section 50 of the NDPS Act can be addressed from two approaches. First is that the police had prior information that the accused Imran Khan would be visiting the place of information to supply heroin to the accused Ashfaq Khan and a notice under section 50 of the NDPS Act was given to each of the accused prior to their personal search and search of the polythene carried by accused Imran Khan. Secondly, person of both the accused persons were searched prior to search of the polythene carried by the accused Imran Khan. In both these eventualities, section 50 of the NDPS Act would be applicable. Hon'ble Supreme Court of India held so in 'Gurjant Singh @ Janta v. State of Punjab', Criminal Appeal No. 1868/2013 decided on October 28, 2013.
FIR No. 196/11 State Vs. Imran Khan & Ors. Page No. 13/2438. In 'State of Rajasthan vs. Parmanand', 2014 (2) JCC [Narcotics] 66; Hon'ble Supreme Court has held as under:
"12. Thus, if merely a bag carried by a person is searched without there being any search of his person, Section 50 of the NDPS Act will have no application. But if the bag carried by him is searched and his person is also searched, Section 50 of the NDPS Act will have application. In this case, respondent no. 1 Parmanand's bag was searched. From the bag, opium was recovered. His personal search was also carried out. Personal search of respondent no. 2 Surajmal was also conducted. Therefore, in light of judgments of this Court mentioned in the preceding paragraphs, Section 50 of the NDPS Act will have application."
39. To be more precise, in Om Prakash v. State, Crl. A. No. 453 of 2014 decided on 23.05.2014, Hon'ble Delhi High Court held as under:
"79. In the present case, undoubtedly, the Appellant was searched by PW-10 although that search did not lead to recovery of any narcotic substance. The fact that the person of the Appellant was searched has been admitted by PW-10. He was served with the notice under Section 50 of the NDPS Act. The Court is unable to agree with the submission of the learned APP, which appears to have found favour with the trial Court, that in the present case there existed no reason to issue a Section 50 notice since the recovery was effected from the Wagon-R car. The evidence makes it clear that PW-10 did issue a Section 50 NDPS Act notice since he believed that apart from the Wagon-R car, the Appellant himself might be carrying some prohibited substance and it was not possible for him at that stage to rule out such a contingency. PW-10 served a copy of the notice on the Appellant. Since the Appellant was, in fact, searched pursuant to the notice issued, it is not open now for the prosecution to contend that there was no need to issue such notice and, therefore, the failure to observe the requirement of Section 50 of the NDPS Act was not fatal to the prosecution."FIR No. 196/11 State Vs. Imran Khan & Ors. Page No. 14/24
40. To dispel any doubt in this regard, at the cost of prolixity, relevant portion of deposition of PW-10 SI Satyawan, In-charge of the raiding team, is reproduced under:
".....Thereafter, I took search of the accused Imran and found a black colour polythene, in his hand. I took the polythene bag from the hand of the accused, and opened the same and found a transparent polythene packet containing light brown colour powder."
".....Thereafter, I conducted the search of accused Ashfaq but nothing incriminating was found from his possession. I prepared the non-recovery memo Ex.PW1/F, which bears my signatures at point C and signatures of accused Ashfaq at point X."
41. Let us examine as to whether the provision of section 50 of the NDPS Act was complied or not.
42. PW-10 SI Satyawan was the In-charge of the raiding team. He has deposed as under:
".....I told both the accused persons regarding the secret information received by me. I also told them about their legal rights and told them that their personal search was to be conducted and if they so desire, their search can be conducted in the presence of a Gazetted Officer or a Magistrate."
43. Therefore, it is evident that PW-10 SI Satyawan did not inform the accused persons that it was their legal right that if they desired so, their personal search could be conducted in the presence of any Gazetted Officer or Magistrate.
44. This becomes apparent from a perusal of deposition of the other members of the raiding team. PW-1 HC Abdul Haqeem was a member of the raiding team. On this aspect, he deposed as under:
FIR No. 196/11 State Vs. Imran Khan & Ors. Page No. 15/24".....IO told both the accused regarding the secret information received by him. He also told them that their search has to be conducted and if they want their search can be conducted in the presence of a Gazetted Officer or a Magistrate."
45. PW-7 HC Yogesh was also a member of the raiding team. He has deposed as under:
".....IO told both the accused regarding the secret information received by him. He also told them about their legal rights and told them that their personal search was to be conducted and if they so desire, their search can be conducted in the presence of a Gazetted Officer or a Magistrate."
46. It is therefore, evident that PW-10 SI Satyawan given a mere option or offer to the accused persons. He did not communicate the accused persons their legal right to be searched in the presence of any Gazetted Officer or Magistrate. He has not statutorily discharged legal obligation as imposed under section 50 of the NDPS Act.
47. In 'Ashok Kumar Sharma Vs. State of Rajasthan', 2013 (1) C.C. Cases (SC) 232, Hon'ble Supreme Court of India considered deposition of In-charge, of raiding team i.e. Additional Superintendent of Police (Crimes), Jaipur City. It was observed that:
"The question as to whether this procedure has been complied or not in this case the deposition of PW-1 assumes importance, which reads as follows:
He was apprised while telling the reason of being searched that he could be searched before any Magistrate or any Gazetted Officer if he wished. He gave his consent in writing and said that I have faith on you, you can search me."FIR No. 196/11 State Vs. Imran Khan & Ors. Page No. 16/24
"8. The above statement of PW-1 would clearly indicate that he had only informed the accused that he could be searched before any Magistrate or a Gazetted Officer if he so wished. The fact that the accused persons has a right under Section 50 of the NDPS Act to be searched before a Gazetted Officer or a Magistrate was not made known to him. We are of the view that there is an obligation on the part of the empowered officer to inform the accused or the suspect of the existence of such a right to be searched before a Gazetted Officer or a Magistrate, if so required by him. Only if the suspect does not choose to exercise the right in spite of apprising him of his right, the empowered officer could conduct the search on the body of the person."
48. It is further evident from perusal of notices under section 50 of the NDPS Act Ex.PW1/A and Ex.PW1/B given to accused Imran Khan and Ashfaq that they were not informed that they could be taken to the nearest Gazetted Officer or the nearest Magistrate. He did not make any effort to produce the accused persons before any Gazetted Officer or Magistrate. No effort was made to seek presence of any Gazetted Officer or Magistrate at the time of search of the accused persons.
49. PW-10 SI Satyawan, In-charge of the raiding team deposed as under:
".....I had not called any Gazetted Officer to the spot."
50. This Court is deriving support in reaching to this conclusion from 'Om Prakash v. State' (supra), as under:
"80. The admitted position is that the notice under section 50 of the NDPS Act that was served to the Appellant did not mention that he could be taken to the nearest Magistrate or Police Station which had a Gazetted Officer....."
51. Therefore, there is violation of mandatory provision of section 50 of the NDPS Act.
FIR No. 196/11 State Vs. Imran Khan & Ors. Page No. 17/24EFFECT OF NON-COMPLIANCE OF SECTION 50 OF THE NDPS ACT:
52. In 'Vijaysinh Chandubha Jadeja v. State of Gujarat' reported as (2011) 1 SCC 609; Hon'ble Supreme Court held in the para no. 22 of the judgment, as under:
"22......We have no hesitation in holding that in so far as the obligation of the authorised officer under Sub- section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires a strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search."
FAILURE TO JOIN PUBLIC WITNESSES:
53. The case of the prosecution is that PW-10 SI Satyawan made three efforts to join public persons to search and seizure proceedings and none of them agreed and therefore, no exception can be taken to the case of the prosecution. On contrary, defence submitted that no genuine effort was made to join public persons despite availability.
54. Let us examine as to whether any sincere effort was made to join public persons in search and seizure proceedings.
55. PW-10 SI Satyawan who was In-charge of the raiding team deposed as under:
".....No notices were served on the public persons, who refused to join the investigations. The spot was situated in a congested area and heavy traffic was also plying near the spot. No information was sent to the local police station. I had not called any persons from the residence of the accused persons. Even SI Bhagwan Singh has not called any person from the residence of the accused, in my presence."FIR No. 196/11 State Vs. Imran Khan & Ors. Page No. 18/24
56. PW-1 HC Abdul Haqeem was a member of the raiding team. He deposed as under:
".....IO has not served any notice to the public persons who had refused to join the raiding party. No other person was found standing or remained standing near the spot, where the accused was apprehended. Some public person had gathered on the spot after apprehension of the accused. We remained at the spot for about 10 hours and left the spot at about 4.30 am. IO has not asked any public persons to join the investigation after recovery of the contraband from the accused person."
57. PW-7 HC Yogesh, a member of the raiding team stated as under:
"No notice was served upon the public persons, who refused to join the investigations. The spot was situated in a congested area. I finally left the spot at about 10.30 p.m."
58. PW-10 SI Satyawan received information at about 05.15 p.m. in PS Narcotics Cell that accused Imran Khan would be reaching near Mazar, Shastri Park Metro Station between 06.30 p.m.-07.30 p.m. to supply heroin to the accused Ashfaq Khan. He reached the distance between the place of information and PS Narcotics Cell was about 4 k.m. He had sufficient time to join independent witnesses in search and seizure proceedings. The spot was situated in a congested area. There were residential houses. He did not call any resident of the area. He did not call any officer / official from Metro Station, Shastri Park to join the proceedings. PW-9 SI Bhagwan Singh did not join any public person during arrest proceedings. He stated that there were residential houses. He did not call any resident from the said houses.
FIR No. 196/11 State Vs. Imran Khan & Ors. Page No. 19/2459. Besides assertion that PW-10 SI Satyawan made efforts to join public persons on pusta road and in front of cremation ground, Geeta Colony and onlookers who gathered at the spot, there is nothing on record to show that any sincere attempt was made to join public persons in search and seizure proceedings. There were officers / officials available in the Shastri Park Metro Station near the spot besides the said residential houses. He made no effort to join any employee from the said offices in search and seizure proceedings despite availability and sufficient time at his disposal.
60. In 'Inder Dev Yadav v. State of NCT', Crl. Appeal No. 545/2011 decided on 01.05.2014; Delhi High Court observed as under:
"4. The appellants' conviction is based upon the testimonies of police personnel/officials alone. No independent public witness was associated at any stage of the investigation. No reasonable or plausible explanation has been offered by SI Bhasker Sharma, In-charge of raiding team and SI Sanjay who took over the investigation subsequently for not associating any public witness despite having ample time and opportunity. The proceedings were conducted at the spot till around 12.00 (night). Non-joining of independent witness to the recovery creates serious doubt about the genuineness of the prosecution case. It is not rule of law but of prudence that public witnesses should be joined. This is desired to lend authenticity and credibility to the search and the recovery. Of course, it is not an absolute rule. The evidence of police witnesses without slightest independent evidence requires to pursue with great care and caution."FIR No. 196/11 State Vs. Imran Khan & Ors. Page No. 20/24
61. In 'Mohd. Irfan v. Directorate of Revenue Intelligence', Crl. Appeal No. 783/12 decided on 8th November, 2013; Hon'ble Delhi High Court has observed as under:
"3......Apparently, the complainant's version remained uncorroborated from independent sources/witnesses. Joining of independent public witnesses is not a formality to be performed and sincere attempts were required to be made by the prosecution before apprehension of the accused to procure the public witnesses whose identity /particulars were not doubtful."
62. In 'Om Prakash v. State' (supra), Hon'ble Delhi High Court observed as under:
"71. Routinely, no attempt is being made by the police in such cases to associate public witnesses. In the absence of clear evidence to show that a sincere effort was made, the Court should not simply accept the proposition that generally in such cases no member of the public comes forward to help the prosecution. In Ajmer Singh vs. State of Haryana (2010) 3 SCC 746, it was held that in such circumstances the Court will have to determine whether the evidence of the police officer "was believable after taking due care and caution in evaluating their evidence". In the present case, given the shoddy investigation, the failure to associate any independent witness constituted an additional factor to disbelieve the case of the prosecution."
63. In State vs. Sunil, CRL. L.P. No. 502 of 2014 decided on 19.08.2014; Delhi High Court observed as under:
"11...... No independent witness was associated in the recovery of 4 kg of charas form a public place. In the circumstances, the benefit of doubt was rightly granted to the Respondent."
64. Keeping in view that no independent witness was associated during search and seizure proceedings, we need to evaluate evidence of police officials with due care and caution.
FIR No. 196/11 State Vs. Imran Khan & Ors. Page No. 21/24LAPSES/DISCREPANCIES IN THE PROSECUTION CASE
65. On examination of the prosecution case, following lapses / discrepancies are noted:
66. According to PW-10 SI Satyawan, he alongwith raiding team reached at the place of information in official vehicle No. DL 1 CM 4228 which was driven by HC Om Prakash. However, the prosecution has neither examined Ct. Satbir nor produced the log book. In 'Mohd. Irfan v. Directorate of Revenue Intelligence' (supra); Delhi High Court observed in para no. 4 of the judgment that ".....The driver of the vehicle in which the raiding team had gone to New Delhi Railway Station was also not joined. The extracts of the log book of the vehicle were not placed on record to find out the movement of the vehicle used in the raid." In 'Om Prakash v. State' (supra); Delhi High Court in the para no. 87 of the judgment observed that "The failure of the prosecution to produce the log book of the Maruti 800 car carrying the raiding party also was not a minor lapse that could have been simply brushed aside. Such a log could have corroborated the prosecution version as to whether they had apprehended the Appellant from outside the Kali Mata Mandir and at the date and time as alleged. In the absence of production of the log book, as adverse inference should have been drawn against the prosecution."
67. PW-10 SI Satyawan stated that he collected his IO bag, Field Testing Kit and electronic weighing machine while departing from police station Narcotics Cell.
FIR No. 196/11 State Vs. Imran Khan & Ors. Page No. 22/2468. However, malkhana register regarding issuance of IO bag, Field Testing Kit and weighing machine not produced before the Court. This circumstance also casts doubt on the case of the prosecution as to whether any weighing machine, Field Testing Kit or IO bag was issued by In-charge, malkhana to PW-10 SI Satyawan.
69. PW-10 SI Satyawan stated that he received back his seal on 05.08.2011. Sample parcel mark A was sent to FSL on 05.08.2011. It means the seal remained with PW-1 HC Abdul Haqeem since 25.07.2011 to 05.08.2011. It was available to PW-10 SI Satyawan during that period. In 'Om Prakash v. State' (supra); Delhi High Court observed that "There is also doubt whether the seals used to seal the pullandas were in fact deposited in the malkhana. The entries in the malkhana register do not reflect the deposit of the seals. In the evidence of PW-6, it is seen that according to him he handed over the seals back to PW-10 Rajbir Singh who was himself the IO. This raises sufficient doubt on whether there was an opportunity for the samples to be tampered."
70. Last but not the least, the accused persons were not produced before the Officer-in-charge of the nearest police station after their arrest. Police station Seelampur was at stones throw away distance from the alleged place of apprehension but the accused persons were not produced before Officer-in- charge of the said police station as required under section 55 of the NDPS Act.
FIR No. 196/11 State Vs. Imran Khan & Ors. Page No. 23/2471. In view of non-compliance of section 50 of the NDPS Act, non-joining of public witness, delay of 12 days in sending sample parcel and the lapses / discrepancies in the investigation, this Court is of the opinion that the prosecution has failed to bring home the charges against the accused persons.
72. Accordingly, accused persons namely Imran Khan is acquitted of the offence under section 21 (c) of the NDPS Act. Accused Ashfaq Khan is acquitted of the offence under section 29 of the NDPS Act.
Announced in the open court SANJAY SHARMA on this 22nd day of December, 2014. Special Judge NDPS (N-E) ASJ:KKD Courts, Delhi.
FIR No. 196/11 State Vs. Imran Khan & Ors. Page No. 24/24