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Has Been Held By The Hon'Ble Supreme ... vs . State Of on 18 October, 2022

IN THE COURT OF SPECIAL JUDGE (NDPS), NORTH DISTRICT, ROHINI
                      COURTS, DELHI.

( DLNT01-000811-2013)
SC No. 57989/2016

FIR No. 16/13
U/s. 21/29of NDPS Act & 468/471/474 IPC & Section 14 of Foreigners Act
P.S. Special Cell


      STATE

     Vs

1.   Panna Lal @ Vinod
     S/o Sh. Gopal Singh
     R/o House no. 5/115, Ground Floor,
     Nirankari Colony, Delhi.

2.   Manvender Singh Shekhawat
     S/o Sh. Kalu Singh
     R/o House of Vinod, Bhalswa Dairy, Delhi.

3.   John Henry Mark @Henry Chinendu Anaehobi (Nigerian National)
     S/o Mike Henry
     R/o A-3, Ground Floor, Mata Mandir Wali Gali, Village Dheerpur, Delhi.

2.   Taimur Khan @ Bhola
     S/o Taffazul Khan
     R/o Village Behara, Distt. Barelli, UP.
     (Declared P.O Vide order dated 05.02.2014 and arrested on 23.10.2021.
     Proceedings qua him have been separated).

                 Date of Institution : 14.10.2013
                 Arguments Heard on : 23.08.2022
                 Judgment Passed on : 18.10.2022

JUDGMENT :

1 The accused persons namely Panna Lal, John Henry Mark, and Manvender Singh Shekhawat have been sent to face trial for the offences punishable under Page 1/71 Section 21 (C) and 29 of Narcotic Drugs and Psychotropic Substances Act, 1985 ( hereinafter referred to as 'NDPS Act'), 468, 471, 474 and Section 14 of the Foreigners Act.

2. The FIR in question was got registered on the rukka sent by ASI Bijender on 06.04.2013. It is alleged that in FIR no. 26/12 u/s 21/29 NDPS Act PS Special Cell, one accused Taimur Khan @ Bhola was a Proclaimed Offender and he was being tracked by Special Cell. His mobile number as well as his accomplices mobile numbers were being intercepted by the Special Cell, North and during interception, three mobile numbers 8860456652, 9718740463 and 8750839483 came to the notice belonging to one Vinod and position of the said mobile numbers was that of Nirankari Colony. It was further revealed that he was regularly talking to Taimur Khan @ Bhola who is the resident of Village Behera, Distt. Barelli, UP and were dealing in trafficking of heroin. The said Vinod was using his carrier Shekhawat for trafficking the narcotics. The said information was brought to the notice of senior officers. After getting orders from the ACP and Inspector Attar Singh, he deployed his sources and also the technical surveillance from which it was revealed that carrier Shekhawat will go to Taimur Khan on 05.04.2013 for supply of heroin. He accordingly, informed Insp. Attar Singh by written intimation who forwarded the same to ACP Satyavir Singh and accordingly, Inspector Attar Singh deputed SI Parveen, HC Rajbir, HC Hawa Singh and HC Harpreet to trap Taimur Khan.

Page 2/71 2.1 On 05.04.2013 at about 5.06 pm vide DD no. 31, they left for District Barelli, UP. On 06.04.2013, the secret information was received through telephone by him at about 12.15 pm that said Shekhawat has taken the delivery of heroin at around 9.00 am from Barelli and has started his return journey towards Delhi. He accordingly, informed Inspector Attar Singh who further informed the same to ACP Satyavir. ACP accordingly, directed them to take legal action. The said piece of secret information received through sources and technical surveillance was put into writing vide DD no. 11 at about 12.45 pm which was forwarded to Inspector and thereafter to ACP concerned. The raiding party was constituted comprising of himself, ASI Shamsher, ASI Bhushan, ASI Parmod and SI B.B.Gurang. At about 1.00 pm, they left for Nirankari Colony in a government vehicle. On the way at Mukarba Chowk and Burari Chowk, 4-5 public persons were requested to join the proceedings but none agreed. At about 1.45 pm, they reached Nirankari Bhawan where secret informer met them. The information was verified and he stated that he will inform whenever Shekhawat comes. He also showed them the house of accused Vinod. They started waiting for the arrival of Shekhawat.

2.2 At about 5.30 pm, it was informed by the informer that the Shekhawat is coming within 20-25 minutes to the house of Vinod bearing no. 5/15, Nirankari Colony. Public persons were again requested to join the proceedings but none agreed. At about 6.15 pm, HC Rajvir and HC Hawa Singh on the directions of Inspector Attar Singh also came at the spot and briefed the raiding party as well as joined them. At about 6.44 pm, Inspector Attar Singh informed through his mobile Page 3/71 phone to HC Rajvir that Shekhawat is coming at the house of Vinod. At 7.05 pm, one person came who was having one yellow colour bag from Nirankari side. He was identified by the secret informer as Shekhawat. He went to the said house and rang the bell. One person Vinod came from the said house and the bag was handed over to Vinod. Thereupon the police party apprehended both the said persons. 2.3 Thereafter, proceedings under section 50 NDPS Act was carried out and they were informed about their legal rights. Both the accused refused to get searched in presence of Gazetted Officer or Magistrate. The bag which was handed over by Shekhawat to Vinod was checked which was having one polythene of Narangi colour which also was having another transparent polythene having pink colour powder. The said pink colour powder was checked through field testing kit which was found to be heroin. The said material was thereafter weighed with help of electronic weighing machine which came out to be 1.5 kg of heroin. Two samples of 5 gram each were separated which were given Mark A1 and A2. The remaining heroin was put back into the said Narangi colour polythene and given Mark A. The bag was separately converted into pullanda and given Mark A3. All the said pullandas were thereafter sealed with the seal of BS. Form FSL was filled and sample seal was affixed. Seal after use was handed over to HC Rajbir. Thereafter, he personally searched other accused Manvender Singh Shekhawat but nothing incriminating was found. On the basis of said rukka, the FIR in question was got registered. 2.4 Subsequently the investigation was handed over to SI Parveen Kumar who arrested both the accused persons and recorded their disclosure statements. The Page 4/71 mobile phones i.e. one Nokia having mobile number 8860456652 and another Samsung having mobile number 8750539483, three Samsung mobiles having number 9718187726 and fourth Samsung having mobile number 9718740463 were recovered from personal search of accused Panna Lal @ Vinod and seized separately. He disclosed in his disclosure statement that he was communicating with one Nigerian John through his mobile number 9718187726 on John's mobile number i.e 8826966514. Thereafter accused Manvender Singh was arrested and from his personal search, one Samsung mobile having number 8826737483 alongwith other articles was recovered. The house search of accused Panna Lal was carried out and several incriminating chemical or substances were recovered. These were also seized. 2.5 Accused Panna Lal @ Vinod again was thoroughly interrogated again on 10.04.2013 who disclosed that he has to receive Rs. 1 lac for heroin from one John to whom he had supplied 300 gram of heroin around 15-20 days ago. But the quality of the said heroin was stated to be poor and said John requested him to replace with good quality. The said John will meet him near Nirankari ground for return of the said poor quality heroin, take fresh one as well as handing over Rs. 1 lac. The said supplementary disclosure statement as well as compliance u/s 42 NDPS ACT was put up before the ACP through Inspector Attar Singh and thereafter, they left for Nirankari Ground at about 2.45 pm alongwith accused Panna Lal. Accused was made to call Accused John Henry and ask to meet at the fixed place. At about 4.50 pm, accused John Henry Mark came there with one black colour bag in his right hand. He was apprehended. The notice u/s 50 NDPS Act was served upon him and he was Page 5/71 apprised about his legal rights to be searched in presence of Gazetted Officer or Magistrate. The formal search of accused Johny Henry Mark was carried out and said black colour bag was checked which was found containing heroin. It was weighed and found to be 300 grams, two samples of 5 grams were taken out which were given Mark F1 and F2. The remaining 290 grams was converted into separate parcel and given Mark F. Form FSL was also filled up. All the said parcels were separated, sealed with the seal of RS and form FSL too was affixed with sample seal. Currency notes of Rs. 1 lac were also recovered from John Henry Mark. One black colour Nokia dual SIM mobile phones having numbers 9873939865 and 8800537587 and another silver and black colour Nokia phone having mobile numbers 8826966514 and 7838908810 were also recovered from his personal search. He was formally arrested wherein he claimed that he is citizen of Ghana. His passport bearing no. H-2107326 was seized. He also claimed that he is residing in rented house bearing no. A-3, Ground Floor, Mata Mandir Wali Gali, Dheerpur, Delhi. His house search was carried out and from his house search, one another passport of Federal Republic of Nigeria bearing no. A00443064 which is in the name of Henry Chinedu Anaehobi was found which was seized.

2.6 During investigation, it was found that John Henry Mark was a Nigerian National and passport of Ghana was found to be fake having fake visa stamps etc. His Nigerian passport was found to be genuine and he had arrived in India on 28.07.2008. Voice samples of all the three accused were taken after taking permission from the court and were sent for FSL examination alongwith intercepted Page 6/71 calls records. The CDRs of the mobile phones recovered from the possession of accused John Henry Mark, Panna Lal and Manvender Singh were also obtained. During investigation, it was found that all the mobile numbers were found to be issued in the name of different persons who all claimed that their IDs have been misused and they have no connection with the said accused persons. The mobile phone of absconding accused Taimur Khan bearing no. 9897713240 was found in the name of Zarina Begum who is the mother of accused Taimur Khan. The landlords of the premises used on rent by accused Panna lal @ Vinod, John Henry Mark were interrogated and their statements were recorded. Accused Taimur @ Bhola could not be arrested and coercive process against him was got issued. On the basis of material on record, all the three accused persons were charge sheeted. On 23.10.2021, accused Taimur Bhola was also arrested but his matter segregated as investigation qua him is still pending as the directions were there from the Hon'ble Delhi High Court vide order dated 15.06.2022 of concluding the trial in two months in bail application no. 358/2022.

3. Cognizance of the offence was taken by Ld. Predecessor and the copies of the chargesheet were supplied to the accused persons vide order dated 23.10.2013.

4. Accused Panna Lal @ Viond was charged for the offence punishable under Section 21(C) and 29 of NDPS Act, accused Manvender Singh Shekhawat was charged for the offence punishable under section 29 NDPS Act and accused John Page 7/71 Henry Mark was separately charged for the offence punishable under section 21 (C) of NDPS Act and 467/471/474 IPC and Section 14 of the Foreigners Act vide order dated 25.07.2014.

5. The prosecution in order to prove their case have examined 29 witnesses in all.

6. PW-1 HC Narayan Ram is the duty officer who has proved the regis- tration of the FIR Ex. PW-1/A. He also proved DD numbers qua process of registra- tion of the FIR as Ex. PW-1/B and Ex. PW-1/C. He also made endorsement on the rukka Ex. PW-1/D. He also produced the certificate u/s 65 B of Indian Evidence Act as Ex. PW-1/E.

7. PW-2 HC Hawa Singh is the recovery witness. He deposed that on 05.04.2013, he alongwith SI Praveen Kumar, HC Rajbir and HC Harpreet went to Barelli in search of accused Taimur Khan @ Bhola. They reached Katra in the morn- ing at 7.15 am i.e. 06.04.2013. HC Rajbir received a call from Inspector Attar Singh. He informed him that they have been identified by the person who was to take deliv- ery and that they should return to Delhi. They returned back to Delhi and then Inspec- tor Attar Singh instructed him and HC Rajbir Singh to reach Nirankari Colony where carrier Shekhawat was to meet dealer Vinod. From the interception of the mobile phone of Taimur Khan who was proclaimed offender in FIR no. 26/12 PS Special Page 8/71 Cell, they came to know that Panna Lal @ Vinod is also engaged in the business of drug business. Three mobile phones were being used by said Vinod i.e. 886046652, 9718740463 and 8750839483. He alongwith HC Rajbir reached Nirankari Colony at about 6.15 pm where ASI Bijender, SI B.B. Gurang, ASI Shamsher Singh, ASI Bhushan and secret informer met them and ASI Bijender briefed them. At about 6.54 pm, HC Rajbir received information from Inspector Attar Singh that Vinod has re- ceived a call from Shekhawat and he is reaching there. At about 7.00 pm, accused Manvender Shekhawat came from the side of Nirankani Bhawan having one bag and the Secret informer identified him. The said accused Manvender Shekawat rang the call bell of House no. 5/115, Nirankari Colony, Ground floor, upon which one person came out who was identified by the secret informer as accused Panna Lal @Vinod. One black and yellow colour bag was handed over to accused Vinod by accused Man- vender Shekhawat. Both of them were overpowered by the IO with the help of his staff. IO introduced themselves to the accused persons. Even 4-5 neighbours were asked to join the proceeding but none agreed. IO ASI Bijender informed the accused persons about their legal rights to be searched in the presence of Gazetted officer or Magistrate. Further, they have a right to search the police party before their search. They were served with the notices u/s 50 of NDPS Act which was explained to them. The notices u/s 50 of NDPS Act served upon accused Panna Lal @ Vinod and ac- cused Manvender Singh Shekhawat are Ex. PW-2/A and Ex. PW2/B. Both accused refused to be searched in the presence of Gazetted Officer or Magistrate and hence, their refusal were recorded as Ex. PW-2/C and Ex. PW-2/D respectively. IO ASI Bi- Page 9/71 jender Singh took custody of the bag from accused Panna Lal @ Vinod and it was found having one orange colour polythene which was further found containing a transparent polythene which was having pink colour powder. It was tested on field testing kit and it was found to be heroin. The contraband was weighed and it was found 1.5 kg. IO separated two samples of 5 grams each Mark A1 and Mark A2 and the remaining heroin of 1.490 kg was converted into a cloth pullanda and was given Mark A . The bag was given Mark A3. All the pullandas were sealed with the seal of BS and FSL form was filled up. Seal after use was handed over to HC Rajbir Singh. All the pullandas were seized vide seizure memo Ex. PW2/E. The accused Panna Lal @ Vinod told that he is using one separate mobile phone having no. 9718187726 for talking to one Nigerian. IO ASI Bijender, thereafter, prepared rukka and handed over to him alongwith four pullandas and the FSL Form for depositing the same with SHO PS Special Cell. At about 10.00 pm, SI Parveen Kumar reached at the spot on a gov- ernment motorcycle and he reached at PS at about 11 pm and handed over the origi- nal rukka to duty officer. The pullandas, FSL Form and copy of seizure memo were produced before the SHO who sealed the same with the seal of RSS. He also men- tioned the FIR number on the pullandas. SI Parveen alongwith the staff and both the accused persons came back to the PS Special Cell at around 3.30 pm when he handed over the copy of FIR and original rukka to SI Parveen. His statement was recorded by the IO. He identified the case property i.e. Mark A1, remnant sample as Ex. P-1, Mark A2, sample not sent to FSL Ex. P-2, Mark A3 the bag, remnant sample as Ex. P-4.

Page 10/71

8. PW3 Inspector Rajender Singh Sehrawat, SHO PS Special Cell de- posed that on intervening night of 06/07.04.2013 at about 11 pm, HC Hawa Singh came to PS and handed over the rukka to duty officer and to him four pullandas Mark A1, A2, A3 & A alongwith FSL Form, copy of seizure memo, all were sealed with the seal of BS. He put his seal of RSS on all four parcels and FSL Form. He also put the FIR number on all the parcels and documents and thereafter, called MHC(M) alongwith register no. 19 with the directions to deposit the case property. DD no. 13A Ex. PW-3/A in this regard was recorded by him. Thereafter, at about 3.30 am, SI Praveen Kumar came and handed over to him 12 pullandas marked as B1, B2, B, C1, C2, D, D1, D2, D, E1, E2, E alongwith one FSL form, copy of seizure memo duly sealed with the seal of PK and he affixed his seal of RSS on all the parcels and FSL Form and in the column of remarks of FSL form. Thereafter, he called MHC(M) alongwith register No. 19 with the directions to deposit the case property. DD no. 16A Ex. PW-3/B in this regard was recorded by him.

Again on 10.04.2013 at about 9.30 pm, SI Praveen Kumar came to his office and handed over him four pullandas marked as F1, F2, F & G along with one FSL Form, and two carbon copies of seizure memo duly sealed with the seal of RS and he affixed his seal of RSS on all the parcels and FSL Form. Thereafter, he called the MHC(M) along with register no. 19 with the directions to deposit the case prop- erty and DD no. 9A Ex. PW-3/C in this regard was recorded by him. On 15.04.2013, on his instructions MHC(M) sent six pullandas mark A1, B1, C1, D1, E1, F1 and Page 11/71 three FSL forms duly sealed vide RC for depositing at FSL through HC Harpreet Singh.

9. PW4 HC Harpreet Singh deposed that on 15.04.2013, on the instruc- tions of IO SI Praveen Kumar, he left his office for PS Lodhi Colony and met MHC(M). He received six pullandas from him which were in sealed condition for de- positing at FSL Rohini. He deposited the same and handed over the road certificate and received copy of FSL form to MHC(M).

Again on 23.04.2013, he again at the instructions of IO, he collected six pullandas from MHC (M) and deposited the same at FSL Rohini and thereafter, he handed over the copy of RC and FSL form to MHC(M). He while leaving the office for PS Lodhi Colony made departure entry no. 19 qua deposit of the case property on 15.04.2013 and DD no. 3 was lodged by him on 23.04.2013 while leaving the office for PS Lodhi Colony.

10. PW-5 Ct. Vikas deposed that on 10.03.2013, he was posted at PS Special Cell and had joined the investigation with SI Parveen (second IO). IO interrogated accused Panna Lal @ Vinod who was in their custody and he made disclosure statement Ex. PW-5/A. He disclosed that he has to receive Rs 1 lac for heroin from accused John who was supplied with the heroin around 15-20 days back. But John complained that it was of poor quality and he was to return the same in lieu of giving him sample of fine quality. He further stated that John would meet him at Page 12/71 Nirankari maidan. Copy of the disclosure statement was supplied to Inspector Attar Singh and ACP Special Cell by the IO. Thereafter a raiding party was constituted by IO SI Parveen comprising SI Rakesh, ASI Raj Singh, HC Radha Krishan, HC Sanjeev, Ct. Vikas and he himself. At about 2.45 pm, they reached at Sankalp Bhawan, Village Dheerpur where accused was directed to make a call to accused John from his mobile phone and meet him at Nirankari maidan. At about 4.50 pm, they noticed one Nigerian coming from the side of Sankalp Bhawan who was identified by accused Panna Lal. He was apprehended. IO requested public persons who had gathered there to join the proceedings but none had agreed. IO thereafter, introduced themselves to accused John. He was further explained that his search was to be carried out and he was apprised about his legal rights. Accordingly, legal notice u/s 50 NDPS Act Ex. PW-5/B was served upon the accused and reply of the accused was reduced into writing by the IO himself at his instance vide Ex. PW-5/C. The accused was having black colour polybag which was checked by the IO and the said polybag was found containing a transparent polythene containing some brown colour powder. It was tested on field testing kit and it was found to be heroin. It was weighed and found to be 300 grams. Two samples of 5 grams each were separated by the IO and put into small polythenes and converted into cloth pullandas. Both the said pullandas were sealed with the seal of RS. The remaining 290 grams was put into same transparent polythene and the same was further put in black polythenes and it was converted into cloth pullanda. It was sealed with the seal of RS and the FSL form was filled. Seal after use was handed over to ASI Raj Singh. All the pullandas i.e. F1, Page 13/71 F2 and Form FSL were sealed with the seal of RS. Personal search of acused John was conducted thereafter and two mobile phones were recovered which were seized by the IO. He was arrested vide arrest memo Ex. PW5/D and his personal search was conducted vide memo Ex. PW5/E. Disclosure statement of accused John Ex. PW5/F was also recorded. They left the place at about 8.00 PM and came to PS Special Cell alongwith accused Panna Lal and John. Case property was handed over to SHO who affixed his seal and signed the pullandas.

On 11.04.2013, PW-5 again joined the investigation and at about 10.00 AM, IO alongwith SI Gurang, ASI Bhushan, ASI Prabodh, HC Ramesh and himself alongwith all three accused persons had gone to Ambedkar hospital for medical examination. Thereafter, they left for the rented accommodation of accused John Henry i.e. A-3, Ground Floor, Mata Wali Gali, Dheerpur, Delhi. Few neighbours were asked to join the proceedings but none agreed. The lock of that house was opened with the help of the key recovered from the personal search of accused John Henry. One almirah was there and from that almirah, one coloured photocopy of passport of accused John Henry, identification certificate issued by the High Commission of Nigeria and copy of one Visa issued from India were recovered. No drug was recovered from that house. In the passport, the name of the person was not shown as John Henry. All the accused persons were thereafter, produced before the court where the permission for obtaining voice sample of all three accused persons was taken and they were taken to FSL Rohini where their voice samples were got recorded. From FSL, they returned back to PS Special Cell, Lodhi Colony where Page 14/71 voice sample exhibits were deposited in the malkhana. He identified two mobile phones one black in colour and the other one silver / black in colour recovered from the possession of John Henry Mark as Ex. P-5 and Ex. P-6, the other articles one wrist watch make 'Glan', one key, brown colour purse containing an Indian currency note in the denomination of Rs.500/-, one American dollar and some visiting cards as Ex. P-7 (colly) and a carbon copy of notice u/s 50 NDPS Act as Ex. P-8 recovered from the personal search of accused John Henry, Passport having no. H2107236 in the name of John Henry Mark as Ex. P-9 recovered from the possession of accused John Henry. PW5 Ct. Vikas also identified 100 Indian Currency notes in the denomination of Rs.1000/- each as Ex. P-10 (colly) recovered from the possession of accused John Henry when he was first apprehended near Sankalp Bhawan. He also identified the samples of heroin as Ex. P-11 and Ex. P-12 recovered from the possession of accused John Henry Mark, the pullandas Mark S6 and S7 containing light pink coloured coarse powdery material recovered from the accused John Henry Mark as Ex. P-13. He also proved the letter of identification recovered from the iron almirah of rented house of accused John Henry Mark as Ex.P16, photocopy of Visa as Ex.P-17 and copy of the rent agreement of the rented house as Ex.P-18.

Further, in the cross examination by Ld. Addl PP, he stated that in the personal search of the accused, Rs 1 lac with 100 notes of Rs. 1000/- each were recovered from his pant pocket which were thereafter sealed and seized vide seizure memo Ex. PW-5/I. The seizure memo of the documents recovered at the house of the accused was also recovered vide Ex. PW-5/J. Page 15/71

11. PW6 Mr. Kuljeet Singh is the official from Home Department, GNCT of Delhi. He proved the interception orders pertaining to some mobile phones for the period w.e.f 05.12.2012 to 12.04.2013. He proved the said orders qua mobile phone nos. 9650218431, 9871968918 and 8826737483 vide Ex. PW6/A and Ex.PW6/B respectively (OSR).

12. PW-7 HC Sanjeev is the MHC (M) PS Special Cell, Lodhi Colony. He deposed that on 06.04.2013, Inspector R.S. Sehrawat had deposited four pullandas Mark A, A1, A2 and A3. He made the entry in this regard in Register no. 19 vide Ex. PW-7/A. On the same night, again Inspector R.S. Sehrawat deposited 12 pullandas and he made the entryin register no.19 in this regard below the main entry vide Ex.PW7/A at point A. On 07.04.2013, SI Praveen Kumar deposited one mobile phone make Nokia and three mobile phones make Samsung recovered from possession of accused Panna Lal @ Vinod, one carbon copy of notice u/s 50 NDPS Act, one carbon copy of body inspection memo, one election voter card of Panna Lal and a cash amount of Rs. 600/- recovered from the personal search of accused Panna Lal. He also deposited the personal search articles of co-accused Manvender Singh Shekhawat whose entries were recorded vide Ex. PW-7/B (OSR). On 10.04.2013, Inspector R. S. Sehrawat deposited three pullandas Mark F, F1 and F2 alongwith copy of seizure memo in malkhana and he made the entry at serial no. 2063 Ex.PW7/C (OSR). On 10.04.2013, SI Praveen Kumar deposited one pullanda Mark G having cash of Rs 1 Page 16/71 lac and personal search articles of accused John Henry Mark as well as one passport bearing no. H2107236 in the name of accused John Henry Mark in the malkhana and he made the entry in this regard at serial no.2064 Ex.PW7/D (OSR).

On 11.04.2013, SI Praveen Kumar deposited six envelopes Mark S1,S2, S3, S4, S5 and S6 containing six audio cassettes in malkhana. He made entry in this regard at serial no.2065 in register no.19 Ex.PW7/E (OSR). On 19.04.2013, SI Praveen Kumar deposited three envelopes Mark Q1, Q2 and Q3 containing CDs and same were deposited in malkhana vide Ex. PW-7/F (OSR) and he made entry in this regard at serial no. 2068 in register no.19. On 15.04.2013, six pullandas Mark A1, B1, C1, D1, E1 and F1 alongwith three FSL forms were sent to FSL Rohini through HC Harpreet Singh vide RC No.79/21/13 and entry was made in register no.19 from point B to B1 against main entry Ex.PW7/A. PW-7 proved the photocopy of RC no. 79 as Ex.PW7/G (OSR).

On 02.01.2014, six sealed pullandas all sealed with the seal of FSL Rohini were received in malkhana through HC Harpreet and entry in this regard was made in register no.19 from point C to C1 against main entry Ex.PW7/A. On 23.04.2013, again six parcels Mark S1, S3, S5, Q1, Q2 and Q3, all sealed with the seal of RS alongwith FSL form were sent to FSL Rohini through HC Harpreet Singh vide RC No. 82/21/13 and entry was made in register no.19 from point A to A1 against main entry Ex.PW7/E and proved the copy of RC no. 82/21 as Ex.PW7/H (OSR). On 09.07.2013, six parcels all sealed with the seal of FSL Rohini were Page 17/71 received in malkhana through HC Hawa Singh and PW-7 made entry in this regard in register no.19 from point B to B1 against main entry Ex. PW7/E.

13. PW-8 Smt.Veena Pahwa, is owner of the property no. 5/115, ground floor, Nirankari Colony which was purchased by her in August, 2011. She rented it out to accused Panna Lal @ Vinod on 01.08.2021 at the monthly rent of Rs. 12,000/-. Rent agreement Ex. PW-8/A was prepared in this regard. Police verification Ex.PW8/B was also done in this regard.

14. PW-9 Mr. Pawan Singh, Nodal Officer, Idea Cellular proved the CAF, CDR and Cell ID Chart of mobile phone nos. 8750839483, 9718187726 and 9718740463alongwith certificate u/s 65 B Evidence Act . The CAF of mobile number 8750839483 as Ex. PW-9/A (OSR), CDR of said mobile phone number as Ex.PW9/B. He also poved CAF of mobile phone no. 9718187726 as Ex.PW9/C (OSR) and CDR of the said mobile number as Ex.PW9/D (colly). He also poved CAF of another mobile phone no. 9718740463 as Ex.PW9/E (OSR) and CDR of the said mobile phone as Ex. PW9/F (colly). He also proved the Cell ID Chart qua all the aforestated numbers as Ex.PW9/G and relevant certificate u/s 65 B of Indian Evidence Act as Ex.PW9/H. Page 18/71

15. PW10 Mr. Israr Babu, Alternate Nodal Officer, Vodafone Mobile Services, proved the notice u/s 91 Cr. PC as Ex. PW-10/A received at his office from Inspector Attar Singh, Special Cell/NR, Rohini Delhi with respect to supply of CDRs and CAF of numbers mentioned in the said notice. He has proved the certified copy of CAF qua mobile phone no. 9873939865 as Ex.PW10/B (OSR) and CDR of the said mobile phone number as Ex.PW10/C and certificate u/s 65 B Indian Evidence Act as Ex.PW10/D. He also proved the CAF of mobile phone no. 7838908810 as Ex.PW10/E (OSR) and CDR of the said number as Ex. PW10/F (colly) and certificate u/s 65 B Indian Evidence Act as Ex.PW10/G. PW10 has also proved the CAF of mobile phone no. 8860456652 as Ex.PW9/H (OSR) and CDR of the said mobile number as Ex.PW10/I (colly) and relevant certificate u/s 65 B of Indian Evidence Act as Ex.PW10/J. He has also proved the Cell ID Chart qua all the aforesaid numbers for the aforesaid period as Ex.PW10/K (colly).

16. PW 11 Inspector Attar Singh deposed that during the month of March and April 2013, many mobile numbers suspected to be used by drug suppliers includ- ing Taimur Khan @ Bhola who was PO in FIR No.26/12 u/s 21, 29 NDPS Act, PS Special Cell were under the legal interception in the office of Special Cell, NR. These numbers were being monitored by him and his staff. During monitoring, it was re- vealed that the users of three mobile numbers was later on identified as Panna Lal @ Vinod, was residing in the area of Nirankari Colony. He used to procure heroin from Page 19/71 Taimur Khan @ Bhola from Barelli through his carrier Manvender Singh Shekhawat. On 05.04.2013, Panna Lal made a call to Taimur Khan @ Bhola stating that he was sending his carrier Shekhawat to get consignment of heroin and he would reach Barielly tomorrow. ASI Bijender Singh was also monitoring the said information and he recorded the same on a separate piece of paper which was put up before him and he forwarded the same to ACP Special Cell, NR, copy of the same is Ex. PW-11/A. The team led by SI Praveen was sent to Bareilly to keep watch upon said Shekhawat and on 06.04.2013, Shekhawat made a call to Panna Lal at about 6.40 AM stating that he was being followed by some police officials upon which he directed the team of SI Praveen to leave the spot so as to avoid further exposure of police party .They were asked to return to Delhi. On 06.04.2013, ASI Bijender Singh received a secret information at about 12.15 PM that Shekhawat has collected consignment of heroin from Taimur Khan and has left Bareilly for Delhi at about 9.00 AM and he would be coming to the house of Panna Lal for handing over the same. ASI Bijender recorded the said information on a separate piece of paper and put before him. He informed ACP Satbir Singh Dagar in this regard who directed him to take appropriate legal action. ASI Bijender recorded DD No.11 in this regard at about 12.45 PM and placed before him and thereafter, he forwarded the said DD entry and copy of information lodged by ASI Bijender to ACP Spl. Cell, NR. He has proved the copies of said documents as Ex.PW11/B and Ex.PW11/C. A raiding team led by ASI Bijender was sent to Nirankari Colony and at about 6.54 PM, Shekhawat made a call from his mobile phone to Panna Lal that he was just reaching. He informed ASI Bijender in Page 20/71 this regard by calling HC Rajbir. ASI Bijender informed him at about 8.30 PM that they have apprehended Panna Lal @ Vinod and Manvender Singh Shekhawat and recovery of 1.5 kg of heroin has been effected from their possession. The further investigation was given to SI Parveen who was directed to reach there. SI Praveen thereafter informed him that there was a strong possibility of recovery of more contraband from house of Panna Lal and house search was to be done immetiately. He informed ACP in this regard who directed to conduct the house search. SI Praveen later on produced a report u/s 57 NDPS Act regarding arrest of two persons and recovery of contraband which he forwarded to ACP vide Ex. PW-11/D. ASI Bijender also submitted the report u/s 57 NDPS Act regarding seizure of heroin from Panna Lal which he forwarded the same to ACP vide Ex.PW11/E. SI Praveen also submitted a report regarding conducting of house search between Sun-set and Sun- rise which he forwarded to ACP vide Ex.PW11/F. Both the accused persons were produced before him and he interrogated and got satisfied. During PC remand, Panna Lal was subjected to further interrogation wherein he disclosed about accused John who was supposed to meet him on 10.04.2013 for handing over Rs.1 lac in lieu of heroin already supplied as well as return of inferior quality of 300 gram of heroin to him. The said information was recorded by SI Praveen and photocopy of the same was put up before him which he forwarded to ACP concerned. SI Praveen also put up a report u/s 57 NDPS Act regarding arrest of accused John Henry Mark and recov- ery of 300 gram of heroin from his possession before him and he forwarded the same to ACP Spl. Cell vide Ex. PW11/G. IO recorded his statement on 26.04.2013. Page 21/71

17. PW-12 ASI Raj Singh is also the member of the raiding party led by SI Parveen on 10.04.2013 qua the disclosure of accused Panna Lal and subsequently the arrest of accused John Henry Mark and recovery of 300 grams of heroin and Rs. 1 lac from him. He was also part of the investigation on 11.04.2013 when accused John was taken to his rented accommodation where his Nigerian Passport, Visa etc. There- after all the accused were produced before the court and permission for taking their voice sample was taken. They were produced before FSL Rohini where there voice samples were taken. The cassettes were given Mark S1, S3 and S5 respectively and copies of the same were given Mark S2, S4 and S6. All the six cassettes were sealed with seal of RS and seized vide memo Ex. PW12/2. The supplementary disclosure statement of John Henry Ex. PW-12/3 was recorded in their office. On 19.04.2013, the recorded data was converted into three respective compact discs (CD) which were marked as Mark Q1, Q2 & Q3 respectively and thereafter the CDs were sealed and seized vide Ex. PW12/4.

18. PW13 Sh. Vijay Kumar is the owner of House no. A-3 Gali Kalka Mandir, Dheerpur, Delhi which was rented out to accused John Henry w.e.f. 01.02.2013 for a period of 11 months. He handed over the documents of police verifi- cation etc. to the police and the same were seized vide memo Ex. PW13/1.

19. PW-14 Narender Mishra joined the investigation on 11.04.2013 when IO requested him to be the public witness while taking the sample voice recordings Page 22/71 of the accused to be taken at FSL. He accompanied them to FSL Rohini where sample voice recordings were taken and converted into six pullandas of the cassettes. He also appended his signatures on all the envelopes.

20. PW-15 Mukesh Kumar is the photographer who took the photographs during proceedings and proceedings u/s 52 A NDPS Act conducted by Ld. MM Sh. Chanderjit Singh. He proved the photographs as Ex.PW15/A (1-30) (colly) and the CD as Ex.PW15/B. He has also proved the certificate u/s 65 (B) Indian Evidence Act with respect of the photographs and the CD as Ex.PW15/C.

21. PW-16 ACP Sh. Satyavir Singh has proved the reports forwarded to him being ACP Special Cell, Northern Range under section 57 NDPS Act as well as informations recorded on 05.04.2013 Ex. PW-11/A and he made his endorsement on it Ex.PW16/1. On 06.04.2013 information was recorded vide Ex. PW-11/C and he made his endorsement Ex.PW16/2 on the same, DD No. 11 dated 06.04.2013 Ex.PW11/B was also received by him and he made his endorsement Ex. PW-16/3 on it. He has also proved the report u/s 57 NDPS Act dated 07.04.2013 of ASI Bijender Ex.PW11/E and he made his endorsement Ex. PW-16/4 on the same and also report of SI Parveen Kumar of the same date as Ex.PW11/D and he made endorsement Ex. PW-16/5 on it. Another report dated 07.04.2013 of SI Parveen Kumar Ex.PW11/F was also proved by him and he made the endorsement vide Ex. PW-16/6 . Page 23/71 21.1. PW-16 ACP Sh. Satyavir Singh also received two reports qua supple- mentary disclosure statement of Panna Lal recorded on 10.04.2013 and the report u/s 57 NDPS Act qua arrest of accused John Henry Mark Ex. PW-5/A and Ex. PW-11/G respectively and he made his endorsement on both the reports as Ex.PW16/7 and Ex.PW16/8.

22. PW-17 HC Rajvir Singh is also the recovery witness who deposed on the lines of the version given by PW-2 HC Hawa Singh. He identified the case prop- erty produced in the court.

23. PW18 Dr. C.P. Singh, Assistant Director Physics, FSL Rohini, Delhi proved the FSL report Ex. PW-18/1 qua the voice samples of the accused persons and intercepted recordings.

25. PW19 Sh. Chander Shekhar, Nodal Officer, Bharti Airtel Ltd. proved the CAF, CDR and Cell ID with respect to mobile number 8800537587, 8826737483, 8826966514, 9897713240 as Ex. PW-19/1 (OSR) and Ex. PW19/2, Ex. PW-19/3 (OSR), Ex. PW-19/4, Ex. PW-19/5 (OSR), Ex.PW19/6, Ex.PW19/7 (OSR) and Ex.PW19/8. PW-19 also proved the certificate u/s 65 (B) Indian Evidence Act with respect to the aforesaid four mobile numbers as Ex.PW19/9 and the Cell ID site address Sheets as Ex.PW19/10 (colly).

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26. PW-20 HC Padma Kumar, is the official from Foreigners Record Branch, FRO, R.K Puram, New Delhi who has proved the letter dated 10.06.2013 sent to the office of ACP Satyavir Singh seeking details of arrival/departure of Nige- rian National namely Henry Chinedu Anaehobi (accused no. 3 herein) as Ex. PW20/1.

27. PW-21 Sh. Tahiru Iddrisu, Trade Counselor, High Commission of Ghana proved the letter dated 12.04.2013 issued by the High Commission as Ex. PW21/1.

28. PW-22 SI Bijender is the complainant / first Investigating Officer. He deposed that on 05.04.2013, he was posted in Special Cell, NR and one Taimur Khan @ Bhola who was PO in case FIR no. 26/12 PS Special Cell. In this regard some telephone numbers were put on interception to apprehend him. During that course, three mobile numbers 8860456652, 9718940463 and 8750839483 were put on sur- veillance which were being used by one Vinod @ Panna Lal and his location was that of Nirankari Colony. It has also transpired that he used to get the supply of contra- band from Taimur Khan through his carrier Shekhawat. In order to develop the said information, he was deputed by Inspector Attar Singh to look into the matter. It tran- spired from the interception as well as information from other sources that Vinod would be sending Shekhawat for getting the supply. He reduced into writing the said information and forwarded it to Inspector Attar Singh. Copy of the said information is Page 25/71 Ex. PW-11/A which was also forwarded to ACP. Inspector Attar Singh accordingly, constituted a raiding party consisting of himself, SI Praveen, HC Hawa Singh, HC Harpreet, HC Rajbir were members of the raiding party and they left for Barelli, UP to apprehend Taimur Khan @ Bhola. Again on 06.04.2013 at about 12.15 PM, PW- 22 received information that Shekhawat has left Barelli for Delhi at about 9.00 AM alongwith heroin and was supposed to come at the house of Vinod in Nirankari Colony. The secret informer asked him to meet at Nirankari Colony. He reduced the said information into writing vide Ex. PW11/C and informed the same to Inspector Attar Singh. The said information Ex.PW11/B and Ex.PW11/C was also forwarded to ACP concerned. A raiding party was thereafter constituted by him comprising of ASI Shamsher Singh, ASI Parbodh, ASI Bhushan and SI Bhagat Bahadur and vide DD No. 12 Mark P22/A, they left the PS alongwith IO bag, field testing kit, electronic weighing machine at about 1.00 PM in official gypsy no. DL-1CM-1346. On then way at Mukarba Chowk, Burari, he requested 4-5 public persons to join the proceed- ings but none agreed. They reached at Nirankari Colony at about 1.45 PM where in- former met him and pointed out the house of Vinod@ Panna Lal to him and stated that he would inform about Shekhawat soon before he reaches there. At about 5.30 PM, informer informed that Shekhawat would be coming shortly and he again re- quested 4-5 public persons near to the house of Vinod to join the proceedings, but none agreed. At about 6.15 PM, HC Hawa Singh and HC Rajbir came at the spot on the direction of Inspector Attar Singh. They were briefed about the information and joined in the raiding party. At about 6.54 PM, Inspector Attar Singh talked to HC Ra- Page 26/71 jbir on his mobile phone and informed that Shekhawat would be coming at the house of Vinod within 2-3 minutes. At about 7.05 PM a person was seen coming from the side of Nirankari Bhawan having one black and yellow colour bag in his right hand and the informer pointed him out as Shekhawat. He rang the door bell of accused Vinod and the person who came out was identified as Vinod. Thereafter, both of them were apprehended by them and were introduced to them. He again requested four neighbours to join proceedings but none agreed. They were informed about their legal rights to be searched in presence of a Gazetted Officer or Magistrate. They were also informed about their legal rights to search the police party before their search was conducted. Notice u/s 50 NDPS Act in this regard Ex. PW-2/A and Ex. PW-2/B respectively were served upon them. Both the accused persons gave their refusal to the said offer and their refusal Ex. PW2/C and Ex. PW-2/D respectively was recorded. They took the casual search of accused Vinod and took out the bag in his hand which was found containing, "narangi coloured" polythene carry bag. The said carry bag was having one transparent polythene containing pink coloured powder which was tested on field testing kit and found to be Heroin. The said heroin was weighed with the help of electronic weighing machine and found to be 1.5 kg. Two samples of 5 gram each were separated and put in two separate plastic pouches. These were converted into two cloth pullandas Mark A1 and A2. The remaining con- traband was put back in the said narangi polythene bag and converted into cloth pul- landa and given Mark A. The bag was converted into a separate cloth pullanda and given Mark A-3. Form FSL was filled and he put his seal on all the four pullandas. Page 27/71 All the four pullandas and the form FSL were seized vide memo Ex. PW-2/E and seal was handed over to HC Rajbir. Then they conducted the casual search of accused Shekhawat but nothing was recovered and memo in this regard is Ex. PW-2/F. There- after, he prepared rukka Ex. PW-22/1 and sent to PS for registration of FIR through HC Hawa Singh. He was also handed over all the pullandas, FSL form and copy of seizure memo. SI Parveen to whom the further investigation was marked reached the spot at about 10.00 PM. The house of accused Vinod was secured by the staff. He handed over the prepared documents as well as both the accused persons to SI Parveen and at about 10.30 PM SI Parveen conducted house search of accused Vinod. After entering the house, the kitchen was searched and it was having aluminum con- tainer which was found containing chemicals in three plastic polythenes and one plas- tic bottle which contained liquid chemical. One of the "narangi coloured polythene"

was opened and it was stated to be having phonobarbital. It was weighed and it found to be 3 Kg and two samples of 5 gram each were separated and converted into two separate pullandas and given Mark B-1 & B-2. The remaining chemical in poly- thene was converted into a separate cloth pullanda Mark-B. The other polythene of white colour cloth was having substance known as Power and Sudoafdrine. It was weighed and found to weigh 500 gram. Two samples of 5 gram each were separated and converted into cloth pullanda and given Mark C-1 & C-2. The remaining chemi- cal in polythene alongwith cloth bag was converted into a separate cloth pullanda Mark-C. The third transparent polythene was having white powder known as Alphra- zolam and on weighing, it was found 200 grams. Again two samples of 5 gram each Page 28/71 were separated and converted into two separate pullandas and given Mark D-1 & D-

2. The remaining chemical in polythene was converted into a separate cloth pullanda Mark-D. The chemical contained in the plastic bottle was stated to be AA and its weight was found to be 550 gram. Again two samples of 50 gram each were sepa- rated and converted into two separate pullandas and given Mark E-1 and E-2. Form FSL was filled. All the pullandas were then sealed with seal of PK. Same was put back in the aluminum container and seized vide memo Ex. PW-17/1 and seal after use was handed over to HC Rajvir. The FIR number was informed by HC Hawa Singh to IO at about 11.15 pm. At 1.30 AM, accused Vinod was formally arrested vide ar- rest memo Ex. PW-17/2, his disclosure statement Ex. PW-17/2C was recorded. The four mobile phones recovered from possession of accused Panna Lal @ Vinod were seized vide memo Ex. PW-17/4. At about 2.15 AM, accused Shekhawat was formally arrested vide arrest memo Ex. PW-17/3 and his disclosure statement Ex. PW-17/3C was also recorded. At about 3.00 AM, they alongwith accused persons and the seized articles were went to PS Special Cell, Lodhi Colony. HC Hawa Singh handed over rukka and copy of FIR to SI Parveen in the PS. SI Parveen produced the seized arti- cles and accused before the SHO who affixed his seal on the pullandas and the FSL form and articles and same were deposited in the malkhana. He prepared his report U/s 57 NDPS Act Ex. PW-11/E on 07.04.2013 and sent to ACP concerned. On 26.04.2013, HC Rajvir returned his seal to him. He identified the case property in the court.

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29. PW-23 Sh. R.K. Celly is the person in whose name, the mobile phone Number 9873939865 got issued and was being used by accused John Henry Mark, Nigerian National. He denied having got issued the said mobile number and stated that ID/passport of his wife might have been misused. He denied his signatures on Mark P-23/A and Mark P-23/B.

30. PW-24 is Ms. Kiran in whose name mobile phone number 8860456652 was issued and was being used by accused Panna Lal @ Vinod. She denied her sig- natures on Ex. Mark-P-24/A and Mark P-23/B.

31. PW-25 Vijay Kumar is the person in whose name mobile phone num- ber 9718187726 got issued and was being used by accused Panna Lal @ Vinod. He denied his signatures on prepaid customer application form Ex. PW-9/C and on the copy of passport Mark P-25/A.

32. PW-26 Raj Pal Singh had purchased the house in the year 2010 and the police officials visited him in the year 2013 for enquiring about one Naresh @ Nathi. He informed that the said Naresh @ Nathi was the brother-in-law (Saala) of the pre- vious owner of his house.

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33. PW-27 Smt. Kavita Goyal, Assistant Director (chemistry), FSL, Delhi who examined the recovered contraband in the present case and proved her report as Ex. PW-27/A.

34. PW-28 Sh. Chanderjit Singh, Ld. ACMM, North, Rohini had con- ducted the proceedings under section 52 A NDPS Act and proved the same as Ex. PW-28/1.

35. PW-29 SI Parveen Kumar is the second investigating officer. He de- posed that on 05.04.2013, he was posted at Special Cell, Rohini. He alongwith HC Hawa Singh, HC Rajbir and HC Harpreet went to Barelli in search of accused Taimur Khan @ Bhola. They reached Katra in the morning at 7.15 am i.e. 06.04.2013. At about 7.50 am, they received a call from Inspector Attar Singh that their position has been exposed and Inspector Attar Singh directed them to return to Delhi. Inspector Attar Singh instructed him to reach to office and HC Rajbir Singh as well as HC Hawa Singh to reach Nirankari Colony where carrier Shekhawat was to meet dealer Vinod.

At about 9.30 am on 06.04.2013, on the directions of Inspector Attar Singh, he was directed to report at Nirankari Colony where ASI Bijender and his raid- ing party had apprehended Manvender Singh Shekhawat and Paana Lal @ Vinod with illegal contraband. He recorded DD entry no. 26A Ex. PW-29/A in this regard. He reached at the spot where ASI Bijender produced both the accused Manvender Page 31/71 Singh Shekhwat and Paana Lal @ Vinod and handed over copy of rukka, notice under Section 50 NDPS Act and seizure memos. He made inquiries from the accused persons and thereafter, searched the house of the accused and during search, one aluminum container was found having three polybag packets containing chemicals in powder form and one plastic bottle containing liquid chemical was also found in the said container. Accused Vinod disclosed that chemical phinobarbital psydoephidrine and alprazonelum were in the polybags and the bottle containing liquid is AA Acid. Thereafter samples were separated and sealed. At about 11:15 pm, he received information from HC Hawa Singh regarding FIR number and he mentioned the same on the documents handed over to him by ASI Bijender Singh. He prepared site plan Ex. PW-29/B at the instance of ASI Bijender Singh. At about 1:30 am on 07.04.2013 at 1.30 AM, he arrested accused Panna Lal @ Vinod vide ar- rest memo Ex. PW-17/2 and his personal search was conducted vide Ex. PW-17/2A. At about 2.15 AM, he arrested accused Manvender Singh Shekhawat was formally arrested vide arrest memo Ex. PW-17/3 and he was personally searched vide memo Ex. PW-17/3A and one mobile phone, one bus ticket of Barelli depot and some other articles were recovered from his personal search. The disclosure statement of both the accused were recorded vide Ex. PW-17/2C and Ex. PW-17/3C respectively.

Thereafter, he alongwith the accused persons and other officials left the spot and reached at PS Special Cell, Lodhi Colony, at about 3:30 p.m on 07.04.2013. He produced the recovered contraband before the SHO who deposited the said contaband in malkhana. He handed over to the MHC (M) the other personal search Page 32/71 articles recovered except the mobile phone. The mobile phone were kept by him for investigation purposes. HC Hawa Singh handed over the original rukka and copy of FIR to him. Heprepared special report under Section 57 NDPS Act Ex. PW-11/D and presented the same before Inspector Attar Singh who forwarded the same to ACP concerned. He also prepared report Ex. PW-11/F regarding house search of accused between sunset and sunrise and presented before Inspector Attar Singh who forwarded the same to ACP concerned.

On 10.04.2013, he again interrogated accused Panna Lal @ Vinod who disclosed about delivery of heroin to one Nigerian national John and 15-20 days back, the said John stated that the heroine is not upto the mark and asked the accused Panna Lal to supply him the best quality. Accused Panna Lal was thereafter asked to call John for getting the samples of the best quality heroin alongwith a cash of Rs. One Lac which was already due for him. The same was reduced in writing vide Ex. PW-5/A. He forwarded the same to Inspector Attar Singh who forwarded the same before ACP concerned. He recorded the DD Entry No. 18 Ex. PW-29/C in this regard. He left the police station with SI Rakesh, ASI Raj Singh, HC Radha Kishan, HC Sanjeev, Ct. Vikas Mudgal and Ct. Vikas Singh. Accused Panna Lal @ Vinod was also with them. Thereafter the said police officials and accused Panna Lal @ Vinod reached Sankla Bhawan, Dheerpur and on his instructions, accused Panna Lal called John and it was revealed that John would come in a short while.

At about 4:30 pm, they noticed one Nigerian national coming from Nirankari Colony side towards Sankla Bhawan, Dheerpur and at about 5 pm, they Page 33/71 apprehended the said Nigerian National whose name was revealed as John. The public persons passsing from the spot were asked to join the proceedings but none agreed.

He deposed that thereafter, Nigerian national John was arrested and he introduced himself to John Henry and he was informed about the information available with them. Accused John was apprised about the legal rights to call Gazetted Officer or Magistrate at the spot for taking his personal search. He prepared a notice in English u/s 50 NDPS Act which was served upon him. On the instructions of the accused John, he noted down his reply in his own handwriting Ex. PW-5/C. Accuseed refuseed to exercise his right. One black colour polythene in his hand was checked which was containing another transparent polythene bag having some pink colour powder visible in it. It was checkeed on the field testing kit and found to be heroin. Thereafter, it was weighhed and found to be 300 gram heroin. Two samples of 5 gram each was seaparated from the said transparent polythene and kept ziplock pouch and prepared two pullandas in a cloth. The said pullandas were sealed with the seal of RS and were given Mark F-1 and Mark F-2. Remaining 290 gram heroin was also converted into separate pullanda and sealed with the seal of RS and given Mark F. The said pullandas were seized vide seizure memo Ex. PW-5/H. Form FSL was also filled and sample seal was affixed on it. Casual search of accused ws carried out and Rs 1 lac in the denomination of Rs. 1000/- were recoverd from the right side pant pocket. The said currency was also converted into separate pullandas and sealed with the seal of RS and was seized vide seizure memo Ex. PW-5/I. During personal search Page 34/71 of accused John, two dual SIM mobile phones of Nokia company were recovered, both were having two SIM cards inserted. The same were seized vide seizure memo Ex. PW-12/1. Accused John was arrested vide arrest memo Ex. PW-5/D and his personal search was conducted vide memo Ex. PW-17/3A. His disclosure statement Ex. PW-5/F was also recorded.

Thereafter, they all alongwith the accused John left for their office at PS Special Cell Lodhi Colony where the sealed exhibits were produced before the SHO who after satisfying himself, put his seal on the said pullandas. Accused was also produced before the SHO and his personal articles were deposited in the Malkhana. Thereafter, he prepared report u/s 57 of NDPS Act and forwarded the same to ACP concerned. Thereafter, on the next day i.e. 11.04.2013, accused John was interrogated and his original name was found to be Chinedu belonging to Nigeria and not from Ghana as he had earlier stated in his disclosure statement. Thereafter, he alongwith his staff reached at the rented house of accused John at Dheerpur Nirankari Colony and after taking key from him, his iron almirah was checked which was found having photocopy of the rent agreement, identification letter issued by Nigerian Government, photocopy of the passport having the seal of India on its visa. All the said articles were seized vide seizure memo Ex. PW-5/5. The accused was thereafter produced before the court and one day PC remand was taken. He also moved the application for taking voice samples of all the accused and after taking permission from the court, all the accused persons were taken to FSL Rohini. Prior to that, one public witness Narender Kumar Mishra was joined in the proceedings. In presence of Page 35/71 public witness, voice samples of all the three accused were taken by Ms. Ashu Goel of Physics Division at FSL. Separate audio cassettes of the voice samples were prepared and given Mark S-1, S-3 and S-5 qua accused Panna Lal @ Vinod, Manvender Singh Shekhawat and John Henry Mark. Copies were given Mark S2, S4 and S6. All the said audio cassettes were separately sealed with the seal of RS and put them in the envelope separately and sealed with the seal of RS. The said articles were deposited in the malkhana of PS Special Cell. The recovered heroin samples were sent to FSL through HC Harpreet Singh. On 19.04.2013, he collected the intercepted voice call from their system in the presence of ASI Raj Singh and extracted the same in CD. Three separate CDs were prepared i.e. Mark Q-1, Q-2 and Q-3 respectively qua three accused. All the said three CDs were sealed with the seal of RS and taken into possession vide seizure memo Ex. PW-12/4. The said samples were deposited in the Malkhana of PS Lodhi Colony and on 23.04.2013, they were sent to FSL, Rohini for comparison. On completion of investigation, he filed the chargesheet in the court.

36. After completion of evidence, statement of accused under section 313 Cr. PC was recorded wherein all the incriminating evidence was put to them. They denied their involvement in the present case.

The accused Panna Lal claimed that he is innocent and he was forcibly lifted from his house in the morning hours of 04.04.2013. He was tortured and his Page 36/71 signatures were taken on many blank documents. He was also pressurized to copy few lines from a written on a blank paper. Nothing was recovered at his instance.

Accused Manvender Singh Shekhawat claimed that he has been falsely implicated and nothing has been recovered from him or at his instance. His signa- tures were also taken on plain and printed papers which were later on converted into various memos against him.

Similarly, accused John Henry Mark claimed that he was lifted from his house by the police officials and they took Rs. 1 lac with them which was lying with him. He claimed that whatever drugs shown to be recovered from him is planted one. He is not having any understanding of Hindi language and the police officials did not understand my language and falsely involved me in this case. He stated that he is not acquainted with other two accused persons.

37. I have heard Learned Additional Public Prosecutor for the State as well as Sh. U.A. Khan, Ld. Counsel for accused Panna Lal @ Vinod, Sh. Ankur Sharma, Ld. Amicus Curiae for accused Manvender Singh Shekhawat, Sh. J.S. Kushwaha, Ld. Counsel for accused John Henry Mark and also considered the material placed on record.

38. The Ld. Counsel for accused Panna Lal @ Vinod argued that the case of the prosecution is based upon interception of the mobile phones, but as far as the reliance is placed upon the intercepted calls w.e.f. 04.04.2013 to 10.04.2013, there Page 37/71 was no legal authorization available with the investigating authority in this regard. Authorization Ex. PW-6/A and Ex. PW-6/B expired way back and despite that, the investigating authority illegally continued to intercept the calls which is in violation of the Article 20 and 21 of the Constitution. The said piece of evidence cannot be read against either of the accused. The contents of the said intercepted calls, therefore, are not admissible. Even otherwise, the contents of the said intercepted calls does not in any manner reflect talks between accused Panna Lal and Shekhawat or accused Panna Lal or John Henry Mark to be concerning trafficking of heroin etc. It is only a general conversation without any hint of trafficking of heroin or any other contraband.

38.1 As far as the mobile phones alleged to be recovered from accused Panna Lal are concerned, none of them had any connection with the accused nor are in his name or his family's name. Further the first part of the raid which was done by SI Parveen Kumar and his staff on 05.04.2013 at Barelli, is not proved by any document on record. No DD entry or any document has been proved in this regard. 38.2 It was also argued that there was non compliance of Section 42 NDPS Act as no search warrant was obtained despite search of the accused was being con- ducted after sunset. Similarly, section 50 of NDPS Act is also not complied with as has been held by the Hon'ble Supreme Court in Arif Khan @ Agha Khan vs. State of Uttarakhand reported as AIR 2018 SCC 2123. Despite the refusal by the accused per- sons to get their search conducted in presence of Gazetted Officer or Magistrate, the Page 38/71 investigating authorities are bound to get the search effected in presence of said offi- cers only. It has not been complied with in the present case.

Lastly it was argued that the entire case of the prosecution is based upon the versions given by police officials and no serious effort was made to join public persons as witnesses despite ample time and opportunity.

39. Similar arguments were advanced on behalf of accused John Henry Mark and Manvender Singh Shekhawat qua the inadmissibility of intercepted calls, non compliance of the provision under section 50 NDPS Act and lastly, no public wit- ness being joined despite availability and ample time.

40. Ld. Amicus Curiae for accused Manvender Singh Shekhawat further pointed out to the material contradictions in the testimonies of the police witnesses qua the weighing machine, the place where the writing work was done and lastly the effort made in joining the public persons as witnesses.

41. In support of arguments, Ld. Defence Counsels for the accused persons have relied upon the following judgments:

(I) Nnadi K. Iheanyi V. NCB, 2014 (4) JCC ( Narcotices) 182 (II) Gunesh Kumar V. State 2016 VII AD (Delhi) 249 (III) Darshan Singh V. State of Haryana Criminal Appeal No.216 with 217 of 2009 (IV) Eze Val Okeke @ Val Eze V. NCB 116 (2005) DLT 399 (V) Ritesh Chakarvati V. State of M.P JT 2006 (12) SC 416 Page 39/71 (VI) Bahadur Singh V. State of M.P & Anr. 2002 (1) JCC 12 (VII) State of Rajasthan V. Gurmail Singh 2005 I AD SC 554 (VIII) Ram Swarup V. Mohd. Javed Razack 2005 I AD (Cr.) SC 555 (IX) DRI V. Raj Kumar Mehta & Ors. 2011 (3) JCC (Narcotics) 156

42. Ld. Addl PP for the State argued that the testimonies of the recovery witnesses examined by them i.e. PW-2 Hawa Singh, PW-5 Constable Vikas, PW-11 Inspector Attar Singh, PW-17 HC Rajvir Singh, PW-22 SI Bijender, PW-29 SI Parveen Kumar proves their case beyond shadow of doubt. As far as minor contradictions in the cross examination of said recovery witnesses are concerned, same does not effect the case of the prosecution or puts any question mark over their claim of recovery of heroin firstly for accused Panna Lal and thereafter on 10.04.2013, from the custody of accused John Henry Mark.

Discussion qua accused Panna Lal @ Vinod and Manvender Singh Shekhawat.

43. Intercepted Calls The case of the prosecution initiated when the Special Cell, Northern Range was intercepting the mobile calls of one of the absconding accused Taimur Khan @ Bhola in FIR no. 26/12 u/s 21/29 NDPS Act PS Special Cell. He was also later on declared proclaimed offender in the present case having remained absconding though he has been arrested now on 23.10.2021 (but his trial has been separated as in- vestigation qua him is still pending). During the course of the said interception, it Page 40/71 was revealed that three mobile numbers 8860456652, 9718740463 and 8750839483 were being used by accused Vinod @ Panna Lal and the location of the said three mobile numbers was at Nirankari Colony. The said information was further devel- oped through mobile interception as well as by human intelligence. The mobile inter- ceptions were admittedly being done in terms of the interception orders Ex. PW-6/A and Ex. PW-6/B respectively. The first order Ex. PW-6/A dated 05.12.2012 is con- cerning total nine mobile numbers out of which two mobile numbers i.e. 8860456652 and 9718740463 are relevant herein which as per the allegations were being used by accused Vinod @ Panna Lal. The same are part of the said authorization. The investi- gating authority was authorized to intercept the calls only for the said numbers for the period of 60 days w.e.f. 30.11.2012. The said period lapsed in the end of January 2013 and there is no order filed on record whereby the said authorization was either extended or not. The second order Ex. PW-6/B dated 12.04.2013 is concerning 16 mobile numbers out of which mobile numbers 9650218431, 9871968918 and 8826737483 are relevant in the present case. The said interception was too for a pe- riod of 60 days and was w.e.f. 08.04.2013 only. So as far as the said order is con- cerned, it is not relevant as at that point of time, both the accused Vinod @ Panna Lal and Manvender Singh Shekhawat were already in police custody in the present case in hand. So the contention on behalf of the accused persons that the reliance placed upon the interceptions of calls for the period w.e.f. 04.04.2013 till 06.04.2013 of the mobile numbers referred above belonging to accused Vinod was indeed unauthorized. But the issue in hand as to whether the said illegality alone can be the reason for dis- Page 41/71 carding the entire case of the prosecution and if not, what are the consequence of the said illegality.

43.1 The initial document i.e. rukka Ex. PW-22/1 and Ex. PW-11/A dated 05.04.2013 recorded by ASI Bijender Singh, DD no. 11 dated 06.04.2013 Ex. PW- 11/B and lastly intimation Ex. PW-11/C dated 06.04.2013, recorded by ASI Bijender, all records the fact that apart from the said interception of the mobile numbers, the human intelligence element was also put into play and was being used to apprehend the accused persons. So the case of the investigating authority is not solely based upon intercepted calls. Even otherwise the said issue of collection of evidence through illegal means is no bar to its admissibility, if it is relevant and having been proved. In the present case in hand too, the said evidence has been proved through FSL examination after voice samples being taken of all the three accused at FSL in the presence of independent witness PW Narender Mishra and thereafter analyzed with intercepted calls. The FSL report Ex. PW-18/1 which is uncontroverted proves the fact of the questioned intercepted calls to be that of all three accused persons only. Further the said issue of illegal means being adopted to collect the evidence has been discussed by the Hon'ble Supreme Court in Umesh Kumar Vs State of Andhra Pradesh in Criminal Appeal no. 1305/2013 decided on 06.09.2013 and the relevant extract of the said judgment is reproduced herein below :

27. It is a settled legal proposition that even if a document is procured by improper or illegal means, there is no bar to its admissibility if it is relevant and its genuineness is proved. If the evidence is admissible, it does not matter how it has been obtained. However, as a matter of caution, the court in exercise of its discretion may disallow certain evidence in a criminal case if the strict rules Page 42/71 of admissibility would operate unfairly against the accused. More so, the court must conclude that it is genuine and free from tampering or mutilation. This court repelled the contention that obtaining evidence illegally by using tape recordings or photographs offend Articles 20(3) and 21 of the Constitution of India as acquiring the evidence by such methods was not the procedure established by law. (Vide: Yusufalli Esmail Nagree v. The State of Maharashtra, AIR 1968 SC 147; Magraj Patodia v. R.K. Birla & Ors., 1970 (2) SCC 888; R.M. Malkani v. State of Maharashtra, AIR 1973 SC 157; Pooran Mal v. Director of Inspection, Income-Tax, New Delhi & Ors., AIR 1974 SC 348; and State (NCT of Delhi) v. Navjot Sandhu alias Afsan Guru, (2005) 11 SCC 600).

43.2 Even otherwise, as has been observed earlier, all the initial documents i.e. Ex. PW-11/A to Ex. PW-11/C dated 05.04.2013 and 06.04.2013 prior to the regis-

tration of the FIR and apprehension of the accused persons, all clearly records the fact of secret informer and human intelligence being also used. Therefore the pleas ad- vanced on behalf of the accused persons of discarding the case of prosecution merely on account of illegality in phone interception is liable to be rejected. 43.3 Now coming to other crucial electronic evidence i.e CDR and its connec- tion with the story as given by the prosecution witnesses /recovery witnesses. It is the case of the prosecution that four mobile phones i.e. one of Nokia make having mobile number 8860456652, three of make Samsung having mobile numbers 8750839483, 9718187726 and 9718740463 were recovered from the possession of accused Panna Lal @ Vinod which were seized vide seizure memo Ex. PW-17/4. Similarly, in the personal search memo of the accused Manvender Singh Shekhawat Ex. PW-17/3A, one Samsung mobile having Airtel SIM no. 8826737483 was recovered apart from Page 43/71 one bus ticket of UP-SRTC Barelli Depot. None of the said crucial articles recov- ered in the personal search have been seriously challenged on behalf of accused Man- vender Singh Shekhawat. As far as accused Panna Lal @ Vinod is concerned, it is his case that he has nothing to do with the alleged mobile phones and the same are not in his name. The prosecution in this regard has placed reliance on the versions given by PW-23 Sh. R.K. Celly, PW-24 Ms. Kiran and PW-25 Sh. Vijay Kumar who deposed that their IDs have been misused and they had never got issued mobile phone num- bers 8860456652 and 9718187726 in their names. If indeed, the said mobile phones recovered from him through seizure memo Ex. PW-17/4 have no connection with him, then how the investigating authority was able to lay their hands on the said inter- cepted proved voice calls belonging to him made through said numbers. The FSL re- port qua the intercepted calls exchanged between them is Ex. PW-27/A and Ex. PW- 18/1. As far as the said FSL result is concerned, it was done by comparing it with the sample voice collected in the presence of independent witness PW-14 Narender Mishra after getting due permission from the court by PW-29 at FSL Rohini. The FSL report which verifies the voice of accused Panna Lal @ Vinod to be there in the questioned conversation Q1 belonging to him. The onus then was upon the accused to explain as to how his voice in the questioned intercepted calls came to be captured and its relationship with mobile numbers under interception. Therefore, it has to be observed that the said mobile phone bearing numbers 8860456652, 8750839483, 9718187726 and 9718740463 were being used by accused Panna Lal @ Vinod and Page 44/71 mobile number 8826737483 was being used by accused Manvender Singh Shekhawat.

Therefore, the arguments advanced on behalf of the accused persons for discarding the case of the prosecution on the said sole aspect is liable to be rejected.

Compliance of Section 41 & 42 NDPS Act

44. It is argued on behalf of the accused persons that the provisions of sec- tion 41 and 42 of NDPS Act has also not been complied with as there was no record of the information with respect to the first raid conducted on 05.04.2013 at Barelli by SI Parveen Kumar alongwith other police officials. In this regard, Ex. PW-11/A inti- mation dated 05.04.2013 recorded by the first IO ASI Bijender is relevant and it records the said fact of talk between accused Vinod @ Panna Lal through his mobile phone and sending his carrier Manvender Singh Shekhawat to collect the heroin on that day. Though there is no separate DD entry recorded by PW-29 SI Parveen with respect to his visit at Barelli for apprehending accused Taimur @ Bhola but the said fact is irrelevant as the said visit stands corroborated through intimation recorded vide Ex. PW-11/A dated 05.04.2013 and being produced before the senior officers i.e. PW-11 Inspector Attar Singh.

44.1 Now coming to the main set of allegations which are concerning the main accused Panna Lal @ Vinod and Manvender Singh Shekhawat qua the charges framed against them under section 21 r/w 29 NDPS Act. It is the case of the prosecu- Page 45/71 tion that apart from the interpreted calls, the secret information too was received and therefore, the compliance under section 41 and 42 NDPS Act comes into picture. 44.2 PW-22 ASI Bijender Singh is the complainant / first investigating officer who received the said secret information on 06.04.2013 at about 12.15 pm. He duly entered the said information vide Ex. PW-11/B and thereafter, shared the said infor- mation with his immediate senior Inspector Attar Singh who further forwarded to ACP Satyavir Singh in compliance of Section 41 and 42 NDPS Act. There is no chal- lenge to the said document on behalf of the accused except for bald suggestions. 44.3 PW-11 Inspector Attar Singh specifically deposed about the said two vis- its i.e. first by SI Parveen Kumar being deputed on 05.04.2013 to trace out the ab- sconding accused Taimur Khan @ Bhola and information in this regard being recorded vide Ex. PW-11/A. He also deposed about the secret information received by PW-22 ASI Bijender Singh on 06.04.2013 at about 12.15 pm regarding carrier Manvender Singh Shekhawat coming back to Taimur Khan from Barelli with the con- signment of heroin. He forwarded the said piece of information recorded vide Ex. PW-11/B and Ex. PW-11/C to ACP who directed them to take action as per law. On the said two contemporaneous documents prepared by ASI Bijender, there is no seri- ous challenge to the said documents in the cross examination conducted on behalf of both the accused Panna Lal and Manvender Singh Shekhawat.

Page 46/71 44.4 PW-16 ACP Satyavir Singh too deposed about the said sequence of events of 05.04.2013 and 06.04.2013 and information received by him through docu- ment Ex. PW-11/A, Ex. PW-11/B and Ex. PW-11/C respectively. He made endorse- ments upon the said information and action was initiated as per his directions. As far as his cross examination is concerned, apart from bald suggestions on behalf of both the said accused, there is nothing which puts any question mark over the receipt of in- formation given to him by Inspector Attar Singh and subsequently authorization given by him as envisaged under section 41 (2) NDPS Act. Even otherwise, the first IO PW-22 ASI Bijender Singh as well as his senior Inspector Attar Singh who were all involved in the initial investigation are the empowered officers of the State Police to conduct the investigation under NDPS Act in terms of the Notification of Delhi Po­ lice bearing No. F.10(76)/85­Fin.(G), Dated 8th November,1985 issued by Ministry of Home Affairs. The similar view has been taken by Hon'ble High Court of Delhi in case titled Vinod Sharma V. State (NCT of Delhi), Crl. Appeal No. 457/2012, Dated 04th March,2016. As far as the first recovery of 1.5 kg of heroin is concerned, the same was effected from the place just outside the main door of the house of ac- cused as is the case of the prosecution. Therefore, Section 42 (Proviso II) had to be complied with which has been done so in the present case. The first argument regard- ing non compliance of Section 42 NDPS Act advanced on behalf of the accused Panna Lal and Manvender Singh Shekhawat in this regard is required to be rejected. Page 47/71

Compliance of Section 50 of NDPS Act

45. The most important aspect in the present case is the compliance of mandatory provisions of NDPS Act as it is the case of the prosecution, the recovery of illicit heroin weighing 1.5 KG was effected from the bag handed over by the car- rier Manvender Singh Shekhawat to accused Panna Lal @ Vinod.

45.1 In the present case in hand, it has already been observed as has been de- posed by PW-22 that the case was based upon the prior secret information and there- fore, the investigating officer being the empowered officer was duty bound to ensure the strict compliance of Section 50 of NDPS Act of apprising the accused persons of their legal rights to be searched in the presence of the nearest Gazetted Officer or Magistrate. As far as the said aspect is concerned, it is argued on behalf of the ac- cused persons that no doubt, the notices under section 50 NDPS Act were duly served upon the accused persons but it was a exercise done just in order to fulfill the legal re- quirements without having intent to follow it. The replies given by both the accused persons are ditto and secondly, it is also apparent from the cross examination of PW- 22 as well as remaining recovery witnesses that they were not even aware about the nearest Gazetted Officer which is the requirement of law.

45.2 The second limb of the argument is that despite their refusal, the Investi- gating Officer was duty bound bound to call the Gazetted Officer or Magistrate as has Page 48/71 been held by the Hon'ble Supreme Court in Arif Khan V. State of Uttrakhand, AIR 2018 SC 123.

45.3 As far as the first contention advanced on behalf of the said two accused persons that there was no real intent on behalf of the first IO to strictly comply with the provisions of Section 50 NDPS Act has to be seen in light of the contents of the said notices as well as replies given by both the said accused persons. The contents of the said notices under section 52 NDPS Act prepared by the first IO PW-22 ASI Bijender Singh Ex. PW-2/A and Ex. PW-2/B is not seriously disputed in the cross ex- amination conducted on behalf of the accused. The contents makes it apparent that the accused persons were apprised about their legal rights to get their search con- ducted in the presence of Rajpatrit Adhikari or Magistrate who can be arranged to come over there. As far as accused Panna Lal @ Vinod is concerned, his reply Ex. PW-2/C is written in his own handwriting wherein he stated that he does not want to call any Rajpatrit Adhikari or Magistrate and he is signing the said notice after going through the contents and understanding its contents. Similarly, accused Manvender Singh Shekhawat too in his own handwriting gave a similar kind of reply. 45.4 It is not the case on behalf of the accused persons that they are illiterate having no knowledge of Hindi language, rather they claimed that their signatures were obtained on blank papers. The said contention when seen in the light of the said documents Ex. PW-2/A and Ex. PW-2/B does not appear to be true. There appears to Page 49/71 be no unnatural gaps between the documents which can corroborate their claim. As far as the contention that the first IO PW-22 ASI Bijender Singh being not even aware about the nearest Gazetted Officer or Magistrate, is to be seen in light of the complete answers given by him. He specifically responded to the question put on behalf of the accused Panna Lal which is reproduced herein for the sake of convenience :

"Q. Is it correct that you had not given the option of nearest Gazetted Officer or Magistrate in the notice u/s 50 NDPS Act ?

Ans. It is correct. I had given the option in the notice which was given to the accused that 'any Gazetted Officer or Magistrate can be called."

So, no fault can be found to the said offer made by PW-22 ASI Bijender Singh merely because he was not having the ready information with him about the names of the officers, can be the ground for giving a finding that there was non com- pliance of the mandatory provisions of Section 50 NDPS Act.

45.6 Now coming to the second limb of argument advanced on behalf of the accused that keeping aside the said fact of refusal by accused persons to get them- selves searched in the presence of Gazetted Officer/Magistrate, still the first I.O ASI Bijender Singh (PW-22) was duty bound to call the nearest Gazetted Officer/Magis- trate as has been held by Hon'ble Supreme Court in Arif Khan V. State of Uttrak- hand, AIR 2018 SC 123 which has been relied upon by Hon'ble Delhi High Court in Sumit Rai @ Subhodh Rai (supra) case and other judgments referred above . The context of the said judgment and the manner of compliance of Section 50 of NDPS Act and whether despite the refusal of the accused , is to be searched in the Page 50/71 presence of Gazetted Officer/Magistrate has been explained by the Hon'ble Delhi High Court (DB) in Criminal Reference in Bail Appl No. 2641/2018 Nabi Alam v. State dated 04/06/2021. The relevant extract is reproduced hereunder :

"For the sake of clarity it is held that, axiomatically, there is no requirement to conduct the search of the person, suspected to be in possession of a narcotic drug or a psychotropic substance, only in the presence of a Gazetted Officer or Magistrate, if the person proposed to be searched, after being apprised by the empowered officer of his right under Section 50 of the NDPS Act to be searched before a Gazetted Officer or Magistrate categorically waives such right by electing to be searched by the empowered officer. The words "if such person so requires", as used in Section 50(1) of the NDPS Act would be rendered otiose, if the person proposed to be searched would still be required to be searched only before a Gazetted Officer or Magistrate, despite having expressly waived "such requisition", as mentioned in the opening sentence of sub-Section (2) of Section 50 of the NDPS Act. In other words, the person to be searched is mandatorily required to be taken by the empowered officer, for the conduct of the proposed search before a Gazetted Officer or Magistrate, only "if he so requires", upon being informed of the existence of his right to be searched before a Gazetted Officer or Magistrate and not if he waives his right to be so searched voluntarily, and chooses not to exercise the right provided to him under Section 50 of the NDPS Act."

Page 51/71

In the said backdrop, once there was a refusal on the part of both the accused person herein to be not searched in the presence of Gazetted Officer/Magistrate, there was no obligation on the part of the first IO ASI Bijender Singh (PW-22) to call Gazetted Officer/Magistrate. Hence, the said argument regarding non-compliance of mandatory Section 50 of NDPS Act advanced on behalf of the accused is without any substance and hence, stands rejected.

Recovery of Contraband and its Content

46. The prosecution in order to prove the factum of recovery of contraband from the possession of accused Panna Lal after it being handed over by the accused Manvender Singh Shekhawat has primarily placed reliance on the versions given by IO PW-22 ASI Bijender Singh and recovery witnesses PW-2 HC Hawa Singh, PW-2 Hawa Singh, PW-5 Constable Vikas, PW-11 Inspector Attar Singh, PW-17 HC Rajvir Singh and PW-29 SI Parveen Kumar. Apart from the said ocular evidence, the prosecution has also placed reliance upon the call detail records of the mobile phones used by the accused persons. Before discussing the credit worthiness of the testimonies of the recovery witnesses, the electronic evidence proved on record by PW-9 Sh. Pawan Singh, Nodal Officer, Idea Cellular, PW-10 Sh. Israr Babu, Nodal Officer, Vodafone Mobile Services and PW19 Sh. Chander Shekhar, Nodal Officer, Bharti Airtel Ltd., requires to be considered as a human being can lie but the documents cannot. The said Nodal Officers from the Telecom Service Provides have Page 52/71 proved on record the CDRs, CAF and Cell ID locations of the various numbers used by the accused Vinod @ Panna Lal and Manvender Singh Shekhawat alongwith certificate under section 65 B of Indian Evidence Act. The accused Manvender Singh Shekhawat was using mobile number 8826737483. On the other hand, accused Vinod @ Panna Lal was using four mobile numbers 8860456652, 8750539483, 9718187726 and 9718740463. The CDRs of the said mobile numbers corroborates the story of the prosecution regarding Manvender Singh Shekhawat being deputed as a carrier for carrying the heroin and delivering back to accused Panna Lal @ Vinod at Nirankari Colony and destroys the defence of accused of being lifted on 04.04.2013. The CDR Ex. PW-19/G pertaining to mobile number 8826737483 of Manvender Singh Shekhawat reflects that holder of the said mobile phone travelled from Delhi via Ghaziabad for going to Barelli on 05.04.2013 and returned back to Delhi by the same route and reached near the place of apprehension after 6.34 pm. The last call exchanged by the accused Manvender Singh Shekhawat with mobile number 8860456652 of accused Panna Lal was on 06.04.2013 at 18.34.15 pm for 22 seconds. At that point of time, the location of the mobile phone of Manvender Singh Shekhawat was at Khasra no. 21/21 Village Jharoda, Majra, Burari, Delhi. Though there is no call exchanged at 6.54 pm as has been deposed by recovery witnesses or Inspector Attar Singh. Both the said minor inconsistencies with respect to the exact time of the last call cannot be the ground for discarding their case which stands corroborated through the above discussed and proved electronic evidence. Therefore Page 53/71 the onus shifted upon the accused to explain their conversation and visit of accused no.2 to Barelli which they have failed to do so.

47. Now coming to the credit worthiness of the testimonies given by the recovery witnesses. Out of the said recovery witnesses, PW-22 ASI Bijender Singh is the most crucial witness being the first IO as well as the complainant who apprehended the accused persons. He prepared the first set of documents including the recording of secret information in compliance of Section 42 NDPS Act vide Ex. PW-11/A to Ex. PW-11/C respectively. He deposed in detail about the exact timings, as well as the sequence of events which took place on the crucial date i.e. 06.04.2013 after the information was received by him at about 12.15 pm. He shared the said information with Inspector Attar Singh and lodged DD Ex. PW-11/B at about 12.45 pm. After getting the authorization, the raiding party was constituted and he again lodged DD no. 12 Ex. PW-22/A and left for the spot alongwith the investigating bag, field testing kit, electronic weighing machine etc. and that too in official gypsy no. DL-1CM-1346. His claim qua preparation of the said series of documents with the timings as well as the use of official gypsy while conducting the raid is not seriously challenged in the entire cross examination conducted on behalf of the accused persons except for bald and bare suggestions. The use of official gypsy rather gives more credit worthiness to the case of the prosecution as it cannot be believed that official gypsy was used for any other ulterior purpose which is the defence of the accused persons.

Page 54/71

Apart from him, the other recovery witnesses too have deposed consistently with respect to the manner in which the raiding party was constituted, arrival of PW-2 HC Hawa Singh alongwith HC Rajbir directly from Barelli to the spot at about 6.15 pm and thereafter, the arrival of carrier Manvender Singh Shekhawat with the bag, apprehension of the accused persons and proceedings conducted thereafter. Apart from few contradictions in the cross examination pertaining to the issue of weighing machine and the place where the writing work was done, there is not much in the entire cross examination conducted on behalf of both the accused persons. As far as the above discussed two contradictions pertaining to the capacity of the weighing machine or the place used for preparing the documents is concerned, the said inconsistencies do not strike at the very root of the versions given by all the said recovery witnesses.

47.1 Now coming to the contents of the recovered contraband to which there is no challenge on behalf of accused as they are only disputing the recovery. As fas the first recovery is concerned, two samples of 5 gm each were separated. One sample was sent for FSL examination and said FSL result Ex. PW-27/A proved by PW-27 Ms. Kavita Goyal, Assistant Director (Chemistry), FSL, Rohini shows the sample seized at the spot to heroin only.

Independent Witnesses Page 55/71

48. It has been vehemently argued on behalf of the accused persons that the entire case of the prosecution is based upon versions given by the police officials and no public witness was joined in the entire proceedings right from the beginning of the raid, the alleged recovery and the arrest of the accused persons. In this regard, the reliance has been placed upon judgment of the Hon'ble High Court of Delhi in Nnadi K. Iheanyi (supra) case. The said judgment has to be read in the context it was delivered. In that case, the prosecution had named the public witnesses who were the witnesses to the recovery, but during the trial prosecution was unable to produce them as addresses of the said witnesses found to be not traceable. Apart from that, the Hon'ble High Court also looked into the fact of purity of sample and retracted statement of the accused under Section 57 of NDPS Act.

48.1 Similarly, in Gunesh Kumar (supra) case too, it is not the case wherein Hon'ble Delhi High Court acquitted the accused merely on the ground of non-joining of the public witnesses number of other factors including the issue of custody of case property, FSL Form etc. were considered which led to the acquittal. 48.2 In the present case in hand, it has already been observed that PW-22 ASI Bijender Singh received the first secret information about the proposed delivery of heroin by carrier Manvender Singh Shekhawat to accused Panna Lal @ Vinod on 06.04.2013 at about 12.15 pm and he made the compliances under section 42 NDPS Act vide Ex. PW-11/A to Ex. PW-11/C respectively. After getting the authorization, the raiding party was constituted and as per his version, not even once, efforts were made thrice to join the public witnesses to the proceedings. Firstly, the effort was Page 56/71 made while going to the spot at Mukarba Chowk, Burari but as none agreed, the police officials reached at the Nirankari Bhawan, Nirankari Colony. They had reached at the spot at about 1.45 pm and on the asking of the secret informer, they were just waiting outside the house of accused Panna Lal @ Vinod by taking positions. At 5.30 pm, again secret informer informed him about the proposed arrival of accused Manvender Singh Shekhawat and again 4-5 public persons from near to the house of the accused Panna Lal @ Vinod were asked to join the proceedings but none agreed. The last effort was made after the apprehension of accused Vinod @ Panna Lal and Manvender Singh Shekhawat by PW-22 ASI Bijender Singh wherein he requested four neighbours who had gathered over there, to join the proceedings but none agreed. Similar version of effort being made three times by the IO to join the public persons in the proceedings has been deposed by other recovery witnesses i.e PW-2 Hawa Singh, PW-5 Constable Vikas, PW-11 Inspector Attar Singh, PW-17 HC Rajvir Singh, PW-22 SI Bijender, PW-29 SI Parveen Kumar. Though PW-2 in the cross examination claimed that no police official was sent to the house of any of the neighbourer to call any witness to the search. The said response has to be seen in the light of the version given by him earlier as he in his examination in chief too had stated that after the apprehension of both the accused persons, ASI Bijender Singh had asked 4-5 neighbours to join the proceedings who gathered at the spot but none agreed. So, therefore, it is apparent from the examination of all the said recovery witnesses that the effort was indeed made by them to join public persons during the investigation process but the said effort did not materialize. Though it is apparent Page 57/71 that none of the nearby neighbours were asked to join the proceedings by sending the police officials to their respective houses. The said fact alone cannot be the reason for discarding the consistent versions given by the recovery witnesses regarding the factum of apprehension and subsequent recovery of alleged contraband. The said issue of non joining of public witnesses has been dealt with in number of cases by the Hon'ble Supreme Court and the Hon'ble High Court of Delhi. The recent judgment of Hon'ble High Court of Delhi titled Sonu @ Hemraj V. State (NCT of Delhi), Crl. Appeal No. 351/2020 & Crl. M ( Bail) No. 7644/2020 dated 24.12.2020 addresses the very same issue and whether the said ground alone can be the reason for discarding the version given by prosecution. The relevant para-40 of the said judgment is reproduced hereunder for the sake of convenience:

"40. It was next argued by the Ld. defence counsel that IO has not joined public witnesses during the investigation and also at the time when the appellants pointed out the place of occurrence. As far as the question of non joining of public witnesses is concerned, no doubt, the IO has not joined the public witnesses but that by itself does not falsify the entire case of the prosecution. The testimony of the official witnesses cannot be thrown away simply on the ground that IO failed to join public witnesses. Experience has shown that public witnesses are reluctant to join the investigation. Even otherwise, the non joining of public witness by the IO can only be said to be a fault on the part of the IO which cannot be the sole basis for disbelieving the entire case of the prosecution and the testimony of the believable official witnesses. Conviction can be recorded Page 58/71 on the sole testimony of police officials without corroboration from a public witness, if it inspires confidence. In this regard reliance can be placed upon Tahir Vs. State (1996) 3 SCC 338, in which the Hon'ble Supreme Court has held as follows:

"no infirmity attaches to the testimony of police officials, merely because they belong to the police force and there is no rule of law or evidence which lays down that conviction cannot be recorded on the evidence of the police officials, if found reliable, unless corroborated by some independent evidence. The Rule of Prudence, however, only requires a more careful scrutiny of their evidence, since they can be said to be interested in the result of the case projected by them. Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence does not in any way affect the creditworthiness of the prosecution case."

48.3 Thereafter, second set of recovery of incriminating substance which was effected from the house of accused Vinod @ Panna Lal by the second IO PW-29 SI Parveen Kumar after the registration of the present case. It is their case that after the investigation was assigned to him, he reached at the spot at about 10.00 pm. He Page 59/71 searched the house of the accused and found one aluminum container having three polybag packets and one plastic bottle having liquid chemical. It was alleged that the said three polybags and liquid substance recovered from the house of accused was phinobarbital psydoephindrine, FSL report (Parcel B-1, C-1, D-1 and E-1). It was the case of the prosecution that the said alleged substances are used either for the preparation of the heroin or being neutralizing the substances. But as far as the case of the prosecution qua the recovery of said alleged substances are concerned, it got completely demolished by the FSL report Ex. PW-27/A. None of the said alleged substances was found in the Exhibits B-1 to E1 respectively. So the said recovery from the house of the accused is irrelevant and does not help the case of the prosecution qua the main accused Panna Lal @ Vinod.

Sampling, Compliance u/s 55 , Custody of Samples and FSL Report

49. It is the case of the prosecution that after having effected the recovery from the personal search of accused Panna Lal @ Vinod, from the black and yellow colour bag given to him immediately before the apprehension by the accused Manvender Singh Shekhawat, was having one narangi colour polybag which in turn was having one transparent bag containing pink colour powder and on weight, the same was found to be 1.5 kg of heroin. Two samples of 5 gm each were separated from the said recovered contraband and given Mark A1 and A2 by converting into separate cloth pullandas by using the seal BS. Form FSL was filled at the spot. Accordingly, the seal after use was handed over to HC Rajbir. As far as the return of Page 60/71 the seal is concerned, PW-22 ASI Bijender in his examination in chief deposed that the seal was returned to him on 26.04.2013 when the samples had already left from the police malkhana to the FSL Lab. Further on the said aspect of misuse of deal, there is no cross examination qua denying the said fact of return of the seal to the first IO ASI Bijender Singh on 26.04.2013.

49.1 Now coming to the aspect of chain of custody of the case property in- cluding the samples from the spot till its deposit with the FSL Lab on 15.04.2013. Firstly, PW-2 HC Hawa Singh was handed with the custody of four pullandas includ- ing From FSL and copy of the seizure memo for producing the same to SHO PS Spe- cial Cell, Lodhi Colony. He deposed that he left the spot at 10.15 pm for PS Special Cell on government motorcycle and reached there at 11.00 pm and produced the same to the SHO. As far as this aspect is concerned, not a single question was put to the witness on behalf of accused Panna Lal @ Vinod and Manvender Singh Shekhawat. 49.2 Now coming to the compliance of section 55 of NDPS Act, PW-3 Inspector Rajender Singh Sehrawat SHO PS Special Cell deposed that on the night of 06/07.04.2013 at about 11.00 pm, HC Hawa Singh came at the PS alongwith four pullandas Mark A1, A2, A3 and A, FSL Form and copy of seizure memo and all the pullandas were sealed with the seal of BS and he put his seal RSS on all the pullandas. He also puts the FIR number on all the parcels and deposited the same with MHC (M). He also recorded DD no. 13 A Ex. PW-3/A in this regard which is a Page 61/71 contemporaneous document qua the compliance done under section 55 NDPS Act. In the cross examination, he admitted to the fact that he did not hand over his seal after use to any independent person. The said response is irrelevant as at that point of time, the pullandas were already deposited in the malkhana and there was no question of tampering as the first IO ASI Bijender Singh too had sealed the same with his own seal. Similarly, the MHC (M) PW-7 HC Sanjeev too proved the deposit of the said four pullandas in the night of 06.04.2013 and he had made entry Ex. PW-7/A in this regard in register no. 19 at entry no. 2059. So the complete link evidence as well as chain of the case property stands proved through the testimonies of PW-2, PW-3 and PW-7.

Defence of the Accused.

50. It is the defence of the accused persons since beginning of trial that they have been falsely implicated in the present case and were picked up from their houses. It is the specific defence of the accused Panna Lal @ Vinod that he was forcibly lifted from his house in the morning hours on 04.04.2013 and taken to the police station where he was brutally tortured. No reason has been given in the entire statement under section 313 Cr. PC as to the reasons for said false implication by the police officials. It is apparent from the cross examination conducted on behalf of the accused persons that neither of the police official was having any personal grudge with the accused nor they were known to him then why he has been falsely implicated. The cross examination conducted on behalf of accused Panna Lal of PW- Page 62/71 2 Hawa Singh shows that one completely new defence was taken by him by claiming that he was fired upon by one suspended police official who was fighting with his friends. In that process, accused Panna Lal @ Vinod had intervened and overpowered that suspended police official. The said incident took place within the territorial jurisdiction of PS Timarpur and one complaint too was lodged. But surprisingly, the said defence was neither put forth by the accused Panna Lal @ Vinod in his statement under section 313 Cr. PC nor he preferred to lead any defence evidence. On the contrary, the said two contrary defenses taken by him rather reflects his defence to be the created one. His defence of being picked up by the police on 4.04.2013 too stands demolished by the telephonic conversation between him and other co-accused even thereafter.

50.1 Now coming to the defence taken by carrier Manvender Singh Shekhawat who simplicitor claimed that he has been falsely implicated and nothing was recovered from him or at his instance. Again no such material has come on record which probablises his defence or show any evidence on record of his having any enmity with the police officials or the police officials knowing him prior to the incident in question. The said defence of the accused is also liable to be rejected having remained completely unproved. Both of them failed to discharge the onus shifted upon them under section 54 of NDPS Act.

Discussion qua accused John Henry Mark Page 63/71

51. The third accused is a Nigerian National John Henry Mark who is facing trial firstly for the offence under section 21 (C) NDPS Act qua 300 gram of heroin found from his possession when he was apprehended on 10.04.2013 at 5.00 pm at Nirankari Maidan. It is the case of the prosecution that after the accused Panna Lal @ Vinod and Manvender Singh Shekhawat were arrested on 06.04.2013 and their disclosure statements were recorded. The accused Panna Lal @ Vinod disclosed that he is in contact with one Nigerian National and he is using a separate mobile number 9718187726 for having conversation with accused John Henry Mark. Subsequently, on 10.04.2013 while the accused Panna Lal was in police custody, he was again inter- rogated and his supplementary disclosure statement was recorded. In the supplemen- tary disclosure statement, he claimed that he has to receive Rs. 1 lac of heroin already supplied to accused John Henry Mark. The said heroin was supplied around 15-20 days ago. But as the said heroin was of poor quality, said John Henry Mark requested him for getting it replaced and for that purpose, on that day i.e. on 10.04.2013, he is supposed to meet him at Nirankari Ground. The said information was shared by IO SI Parveen Kumar with Inspector Attar Singh and thereafter ACP after making the com- pliance of Section 42 NDPS Act Ex. PW-11/D. 51.1 Thereafter, they all alongwith accused Panna Lal departed for Nirankari ground and at about 2.45 pm, they reached there. There accused Panna Lal was made to talk to accused John Henry Mark through his above referred mobile number and he was asked to come at Nirankari Ground. Accordingly, at 4.50 pm, accused John Henry Mark came and he was apprehended. So it is apparent from the entire case of Page 64/71 the prosecution qua recovery of 300 grams of heroin effected from the personal search of accused John Henry Mark that he was trapped by ensuring the mobile call from the number of accused Panna Lal. Therefore, in the said backdrop, the use of mobile phone of accused Panna Lal becomes most crucial factor of the case against accused John Henry Mark. Though the said fact of use of mobile phone or its misuse was never argued on his behalf but the facts are so apparent qua the said issue of phone call and the same cannot be overlooked.

51.2 As per the contents of the seizure memo, admittedly as per the case of the prosecution, the accused Panna Lal was apprehended on 06.04.2013 and he was arrested. During his search, his four mobile phones were seized on that very same day vide seizure memo Ex. PW-17/4. The said seizure memo records an important note by the IO that the said seized mobile phones have been kept 'ON' for the investiga- tion purpose. So as per the contents of the said document, the mobile phone were seized but the same were kept in 'ON' position so that it can be used for the investi- gation purpose as is the case qua accused John Henry Mark. The seizure memo is though silent as to whether the said phones in 'ON' condition were deposited with the MHC (M) or not. But the testimony of the MHC (M) PW-7 HC Sanjeev Kumar clari- fies the said issue. As per his version, on 07.04.2013 i.e. after the registration of FIR and apprehension of accused Panna Lal @ Vinod and Manvender Singh Shekhawat, IO SI Parveen Kumar deposited four mobile phones i.e. one mobile phone make Nokia and three mobile phones make Samsung belonging to the accused Panna Lal @ Vinod in malkhana and he made entry in this regard vide Ex. PW-7/B. Further, he Page 65/71 in his cross examination clarified the said issue and deposed in categorical terms that 'No mobile phone deposited in malkhana on 07.04.2013 qua accused Panna Lal was taken out from malkhana on 10.04.2013.' 51.3 So it is apparent from his version as well as from the document of the prosecution itself , that said four mobile phones of accused Panna Lal remained de- posited in the malkhana w.e.f. 07.04.2013 and were never taken out on 10.04.2013. So if that is the situation then how second IO PW-29 SI Parveen Kumar ensured the call being made to accused John Henry Mark on 10.04.2013 so as to entrap him by calling him at Nirankari Ground. IO PW-29 SI Parveen Kumar though deposed that accused Panna Lal was making call to accused John Henry Mark at their asking when he was in custody. The transcript qua the said conversation has been filed on record at page no. 113 and 115. Thus as per his claim, the mobile phones remained with him for the purpose of investigation as mentioned in the note Ex. PW-17/4 but it is rebut- ted by MHC (M) PW-7 as well as the contemporaneous documents prepared i.e. page no. 19 Ex. PW-7/B. Even for the sake of arguments, if it is believed that said phone remained in the custody of PW-29 SI Parveen Kumar till 10.04.2013, then there is no mention of subsequent entry in register no. 19 qua deposit of one of the said four mo- bile phones being used by accused Panna Lal. It is also not the case of the prosecu- tion that they had called said John Henry Mark from some other number by making him converse with co-accused Panna Lal. So in the said backdrop when there is a big question mark over the custody of mobile phones seized from accused Panna Lal on 07.04.2013 and there being no record of it having remained in the possession of sec- Page 66/71 ond IO SI Parveen Kumar, then how the call was made to accused John Henry Mark and he was asked to come at Nirankari Colony. Hence, the said issue strikes at the root of the case of prosecution as to the manner in which accused John Henry Mark was apprehended and from his possession, 300 gram of heroin being recovered. The benefit for the same has to go in favour of the accused. The contradictions strikes at the very root of the case of the prosecution qua recovery of contraband form accused John Henry.

51.5 The second set of charges against the accused John Henry Mark are qua the use of forged Ghanian Passport and visa stickers for the offences under section 467/471 and 474 IPC. The last charge against him is he being Nigerian National hav- ing continued to stay in India without a valid visa and has thus committed an offence under Section 14 of Foreigners Act.

51.6 It is the case of the prosecution that accused John Henry Mark was ap- prehended from Nirankari ground and he after being apprehended disclosed that he is a Ghanian National and is at present residing at rented accommodation i.e. A-3, Ground Floor, Mata Mandir Wali Gali, Dheerpur, Delhi. His personal search was conducted vide memo Ex. PW-5/E and during his personal search one Ghanian pass- port bearing no. H-2107326 in the name of John Henry Mark S/o Mike Henry was re- covered. It was having his photograph on it. So as far as the said aspect of apprehen- sion is concerned, there is no serious question mark over the case of the prosecution on behalf of the accused as the accused did not challenge the factum of his arrest as well as conduct of his personal search vide memo Ex. PW-5/E. Rather he admitted to Page 67/71 the seizure of his Rs. One lakh though claiming to be illegally seized. Once there is no question mark over the recovered articles in the personal search, the recovery of Ghanian Passport bearing no. H-2107326 too stands proved.

51.7 The prosecution in order to prove the factum of forgery of the said re- covered passport has placed reliance upon the document Ex. PW-21/1 proved by PW- 21 Sh. Tahiru Iddrisu, Trade Counselor at High Commission of Ghana who proved the verification report issued by their High Commission. He has identified the signa- tures of Counselor Ms. Yvonne Danquah. As far as the cross examination of the said witness is concerned, he categorically deposed that he is posted in the said office since September 2012 and the concerned Counselor was not available at that point of time being presently on leave from the office. There is no dispute by the accused as to his averment regarding he having identified her signatures having seen her signing during the course of his service. So in the said backdrop, the document Ex. PW- 21/1 which is the verification report stands duly proved. As per the said document, the abovesaid passport found in the personal search of the accused John Henry Mark is a fake passport having not been issued by them and was being used as genuine doc- ument by the accused as has been deposed by PW29 and other police officials. Thus the offence under section 471/474 IPC stands proved against the accused John Henry Mark.

51.8 The last charge framed against the accused John Henry Mark is under Section 14 of Foreigners Act with the allegations that he is a Nigerian National and his correct name is Henry Chinendu Anaehobi. As per the case of the prosecution, he Page 68/71 was issued with a valid Nigerian passport bearing no. A-00443064. During the house search after the arrest of the accused, PW-29 second IO SI Parveen Kumar got recov- ered one original identification certificate in the name of Henry Chinendu Anaehobi issued by the High Commission of Nigeria and one page of photocopy of said pass- port. There is no cross examination of PW29 on behalf of the accused disputing the said recovery or he being the Nigerian National. Not a single question was put to PW-29 in this regard or recovery from his house.

51.9 The other relevant witnesses examined by the prosecution for proving the said charge are PW-20 HC Padma Kumar from the office of Foreigners Record Branch, FRO, R.K. Puram, New Delhi. He proved the letter Ex. PW-20/1 dated 10.06.2013 providing the details and departure of Nigerian National Henry Chinedu Anaehobi. As per the contents of the said letter, the holder of the said passport ar- rived at ICP-Delhi on 28.07.2008. The relevant extract of the said letter is repro- duced herein below :

'2. On checking , the above national arrived at ICP-Delhi on 28/07/2008 by Flight No. ET-604 on the strength of passport No. A00443064. The de parture details of the same could not be traced out from our available records.' So only the details of the arrival were provided to the Investigating Au- thority and no information qua the genuineness of visa, validity and whether the same has been ever extended or not was provided to them. It appears that no further inves- Page 69/71 tigation was taken after receipt of the said incomplete information from FRRO and therefore, there is no record with respect to the issuance of any kind of visa to said Henry Chinedu Anaehobi by the Ministry of Foreign Affairs, Govt. of India. 51.10 As far as the information obtained from High Commission of Nigeria is concerned, though one letter dated 03.05.2013 was received from the High Commis-

sion but the same has remained unproved. Even if the said letter is taken to be proved document, it does not help the prosecution in any manner in proving the valid- ity of stay of accused John Henry Mark @ Henry Chinedu Anaehobi in India. There- fore, in the said backdrop, it cannot be assumed that stay of accused John Henry Mark @ Henry Chinedu Anaehobi was illegal at the time of his apprehension on 10.04.2013.

52. Accused John Henry Mark @Henry Chinedu Anaehobi is accordingly convicted only for the offence under section 471 and 474 IPC.

Even Section 467 IPC has remained unproved as one of the essential condition for proving the charge is that accused should have been the maker of the said forged document. No evidence has come on record as to the maker of the forged passport i.e. the Ghanian passport. The specimen signatures of the accused John Henry Mark @Henry Chinedu Anaehobi were never taken nor were ever sent to FSL for scientific investigation.

Page 70/71

53. The other judgments relied upon by Ld. Counsel for the accused are not applicable to the present case being distinguishable on facts.

54. In light of the abovesaid findings, observations and reasoning, I am of the considered opinion that the prosecution has succeeded in proving its case qua accused John Henry Mark @Henry Chinedu Anaehobi for the offence under section 471 and 474 IPC, qua accused Panna Lal for the offence under Section 21(C) and 29 of NDPS Act and qua accused Manvender Singh Shekhawat for the offence under section 29 NDPS Act beyond reasonable doubts. Both the accused Panna Lal and Manvender Singh Shekhawat are held guilty being found in possession of heroin for the purposes of trafficking in pursuance of conspiracy.

Announced in the open court                         (Gagandeep Singh)
on 18.10.2022                                       ASJ / Special Judge (NDPS)
                                                    North:Rohini:Delhi




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