Delhi District Court
State vs Mohd. Alam on 26 March, 2024
IN THE COURT OF SPECIAL JUDGE (NDPS),
SHAHDARA, KARKARDOOMA COURTS, DELHI
STATE VS. MOHD. ALAM
Session Case No. : 34/2018
CNR No. : DLSH010004462018
FIR No. : 207/2017
U/s : 21 of the NDPS Act, 1985
PS : Crime Branch
In the matter of :
State
Versus
Mohd Alam
S/o Sh. Lal Mohd.
R/o Village Usaita, PS Binawar,
District & Tehsil Badaun, Uttar Pradesh
.......... Accused
Date of institution : 19.01.2018
Date when judgment reserved : 21.03.2024
Date of Judgment : 26.03.2024
JUDGMENT:
1. This is a case in which accused Mohd Alam has faced trial for commission of offence punishable under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short "the NDPS Act") on the allegation that he was found in possession of contraband SC No. 34/2018 Page 1 of 54 State vs. Mohd. Alam Judgment dt 26.03.2024 i.e. heroin without any permit or licence in contravention of provisions of the NDPS Act.
2. The case of the prosecution as borne out from the chargesheet is as under: 2.1. On 22.11.2017, SI Vinod Kumar was present and on duty at Office of Narcotics Cell, Crime Branch, Darya Ganj, Delhi and at about 8.30 am, a secret informer came to him and informed that one person, namely, Mohd Alam, who is resident of Badaun, Uttar Pradesh and indulges in supply of heroin in Delhi after procuring the same from Bareily and Badaun, would come in between 10.15 am to 10.45 am at road leading from Seemapuri towards Ghazipur near Anand Vihar Railway Flyover along with consignment of heroin to deliver the same to someone and if raid was conducted, he could be apprehended along with contraband.
2.2. After satisfying himself, SI Vinod Kumar at about 8.45 am, produced the said secret informer before Inspector Rajni Kant Sharma, who also made enquiries from the secret informer and after satisfying himself with the information communicated the same to Sh. Sanjeev Tyagi, ACP/N&CP, Narcotics Cell telephonically who directed to take legal action as per law.
2.3. SI Vinod Kumar made DD entry vide DD No. 5 at 9.00 am in duplicate regarding the secret information and produced its original before Inspector Rajni Kant SC No. 34/2018 Page 2 of 54 State vs. Mohd. Alam Judgment dt 26.03.2024 Sharma for the proceedings under Section 42 of the NDPS Act.
2.4. Pursuant to the direction of Inspector Rajni Kant, SI Vinod Kumar prepared a raiding party comprising himself, ASI Mohd. Ismail, Ct. Samrat, and secret informer. The raiding party departed from Narcotics Office for the spot vide DD no. 6 after taking IO kit, field testing kit and electronic weighing machine with them in a private Swift car bearing Registration No. DL9 CR 3728.
2.5. The raiding party reached at the spot i.e. at road leading from Seemapuri towards Ghazipur near Anand Vihar Railway Flyover at 10.00 am. On the way, at Shantivan red light, 45 persons and at Karkarimor red light, 56 persons were asked to join the raiding party by SI Vinod Kumar, but they refused to join the raiding party stating their reasonable causes and left without disclosing their names and addresses. No notice was served to those public persons who refused to join the raiding team. The above said vehicle was parked at service road at the end of flyover. SI Vinod Kumar briefed the raiding party at around 10.15 am and, thereafter, members of the raiding party took their position in scattered manner.
2.6. At around 10.30 am, one person who was wearing cream colour kurta pyjama was seen coming from the SC No. 34/2018 Page 3 of 54 State vs. Mohd. Alam Judgment dt 26.03.2024 Gazipur side who was identified by the secret informer from a distance of 30 meter as Mohd Alam and, thereafter, the secret informer left the spot. The said person stopped at about 50 meters from the Flyover towards Gazipur and started waiting for someone. He waited there for about 10 minutes and, thereafter, when he started going back towards Gazipur side, he was apprehended by the raiding party and on interrogation he revealed his name as 'Mohd. Alam, son of Lal Mohd.' (the accused).
2.7. SI Vinod Kumar introduced himself and other members of the raiding party to the accused and requested 45 public persons who had gathered there to join the investigation, but they refused to join the investigation stating their reasonable causes and left without disclosing their names and addresses.
2.8. SI Vinod Kumar informed the accused that the raiding party was having secret information that he possessed heroin to be supplied to someone and hence his personal search was required to be conducted. The accused was also apprised about his legal right to be searched in presence of a Gazetted Officer or a Magistrate and he was also offered to take search of the raiding party & the vehicle which was called by the IO at the spot, but the accused refused to avail his legal rights.
SC No. 34/2018 Page 4 of 54State vs. Mohd. Alam Judgment dt 26.03.2024 2.9. In this regard, SI Vinod Kumar prepared a notice under Section 50 of the NDPS Act in duplicate contents of which were read over and explained to the accused and then original notice was given to the accused and he recorded his refusal in his handwriting on the carbon copy of the notice.
2.10. Thereafter, SI Vinod Kumar conducted cursory search of the accused during which one transparent polythene mouth of which was tied with rubber band containing some brownish powder was recovered from right pocket of his cream colour wearing kurta and on checking in the field testing kit it was found to be heroin.
2.11. SI Vinod Kumar weighed the entire recovered contraband along with the polythene bag on electronic machine and it was found 200 grams, out of which two samples of 5 grams each were taken out and /the same were kept in two transparent polythene bags which were tied with the rubber bands and the same were converted into two pullandas with the help of white cloth and the said pullandas were marked as A and B. The remaining heroin of 190 grams alongwith the polythene was also converted into a cloth pullanda and the said pullanda was marked as C and all the pullandas were sealed with the seal of '2APS/NB DELHI'.
2.12. SI Vinod Kumar also filled up the FSL form at the spot SC No. 34/2018 Page 5 of 54 State vs. Mohd. Alam Judgment dt 26.03.2024 and affixed his seal on the same. All the sealed pullandas along with FSL form were taken into police possession. Seal after use handed over to ASI Mohd. Ismail. SI Vinod Kumar, thereafter, prepared rukka/tehrir and handed over the same to Ct Samrat along with all the sealed pullandas, FSL Form and copy of seizure memo with a direction to hand over the tehrir to the Duty Officer for registration of case and other articles to the SHO PS Crime Branch for compliance of proceedings under Section 55 of the NDPS Act. Accordingly, Ct. Samrat left the spot in private vehicle No. DL9 CR 3728 and reached at PS Crime Branch where he handed over the tehrir to Duty Officer and other articles to the SHO who counter sealed the pullandas and FSL form with his seal "JS" and got them deposited in the malkhana through MHC(M) ASI Jag Narain.
2.13. As per directions of ACP, N&CP, further investigation was marked to ASI Sanjay who reached at the spot where he met SI Vinod and prepared site plan at the instance of SI Vinod. He interrogated the accused and arrested him. He also conducted personal search of the accused, recorded disclosure statement of the accused and got deposited the personal search articles of the accused in the malkhana of PS Crime Branch.
2.14. ASI Sanjay also produced the accused before Inspector Rajni Kant at Narcotics Cell who enquired the accused SC No. 34/2018 Page 6 of 54 State vs. Mohd. Alam Judgment dt 26.03.2024 and found his arrest justified.
2.15. SI Vinod Kumar prepared special report under Section 57 of the NDPS Act regarding recovery of heroin and ASI Sanjay prepared special report under Section 57 of the NDPS Act regarding arrest of accused Mohd Alam and they both produced the reports before Inspector Rajni Kant.
2.16. As per the disclosure statement of the accused, he was provided heroin by one Parmanand @ Pappu, resident of Village Bhagwanpur, District Badaun, UP. Therefore, during PC remand of the accused, the police team along with the accused reached at the aforesaid village in Badaun, UP where Pappu met them . He was interrogated and his house was searched but no contraband was recovered. The said Pappu was served notice and he joined investigation at Narcotics Cell, Delhi and he told that he was named by the accused in order to defame him as his mother was Pradhan of the village and he had nothing to do with the contraband. Since no incriminating evidence was found against said Pappu, he was kept in column no.12 of the charge sheet.
2.17. On 24.11.2017, sample pullanda Mark A was deposited at FSL, Rohini through HC Birbal vide RC No. 422/21 for chemical examination.
3. Pending FSL result, chargesheet was prepared SC No. 34/2018 Page 7 of 54 State vs. Mohd. Alam Judgment dt 26.03.2024 against the accused under Section 21 of the NDPS Act and filed before the court on 19.01.2018.
4. FSL result was filed on record by ASI Sanjay, the 2nd IO on 02.04.2018. As per the FSL result, exhibit 'A' was found to contain 'Diacetylmorphine', '6 monoacetylmrphine', 'Acetylcodeine' & 'Acetaminophen' and found contain Diacetylmorphine 2.8%.
5. After compliance of Section 207 Cr.P.C., charge under Section 21 of the NDPS Act was framed against the accused on 25.07.2018 to which he pleaded not guilty and claimed trial.
6. In order to prove its case against the accused, the prosecution has examined 11 witnesses. Brief outline of the testimonies of the prosecution witnesses is discussed as under:
7. PW1 is ASI Dinesh Kumar who was posted as Reader in the Office of ACP, Narcotics, Crime Branch, Delhi at the relevant time. He produced on record original DD no. 6 dated 22.11.2017 Ex.PW1/A and original reports under Section 57 of the NDPS Act, both dated 23.11.2017 regarding seizure of 200 grams heroin from accused Mohd Alam Ex.PW1/C and the other regarding arrest of accused Mohd Alam Ex.PW1/E, which were received at their office through dak. He also produced copy of the relevant page of the dak register showing entries made by him to the said effect at serial nos. 2006, 2011 & 2012 which are SC No. 34/2018 Page 8 of 54 State vs. Mohd. Alam Judgment dt 26.03.2024 Ex. PW1/B, Ex. PW1/D & Ex. PW1/F respectively.
8. PW2 is Inspector Rajni Kant before whom the secret informer was produced by the 1 st IO SI Vinod Kumar on 22.11.2017 and who onward transmitted the information to the ACP concerned. He had forwarded original DD No. 6 dated 22.11.2017 Ex.PW1/A to ACP S.K. Tyagi. He also forwarded two original reports under Section 57 NDPS Act produced before him, one prepared by SI Vinod Kumar regarding seizure of 200 grams of heroin from accused Mohd. Alam which is Ex.PW1/C and the other regarding arrest of accused Mohd. Alam prepared by ASI Sanjay which is Ex.PW1/E to the Office of ACP/N & CP.
9. PW3 is HC Birbal Singh who on the instructions of the IO/ASI Sanjay collected one sealed pullanda Mark A along with FSL Form, attested copy of FIR and attested copy of seizure memo from the malkhana on 24.11.2017 and got deposited the same at FSL, Rohini vide road certificate no. 422/21. He after depositing the exhibit at FSL Rohini handed over the acknowledgment of case acceptance to the MHC(M).
10. PW4 is SI Vinod Kumar, the 1 st Investigating Officer (IO) of the case. He is the head of the raiding party which apprehended the accused and recovered the contraband from him. This witness more or less deposed as per the averments made in the chargesheet. Thus, the SC No. 34/2018 Page 9 of 54 State vs. Mohd. Alam Judgment dt 26.03.2024 detailed account of his testimony is not being repeated here for the sake of brevity and shall be discussed at the later and appropriate stage of the judgment. During evidence of this witness, the entire case property which includes the contraband recovered from the accused as well as the sample which was received back from the FSL was brought on record. The documents as well as case property which were brought on record by this witness are mentioned as under along with their identification marks: i. copy of page of DD register containing entry of DD No. 5 as Ex.PW4/A;
ii. True copy of DD No. 6 as Ex.PW4/B;
iii. Carbon copy of notice under Section 50 of the NDPS Act served upon the accused as Ex.PW4/C; iv. Seizure memo of contraband as Ex.PW4/D; v. Tehrir prepared by him as Ex. PW4/E (Colly); vi. Site plan prepared by ASI Sanjay as Ex.PW4/F; vii. Arrest memo of the accused as Ex.PW4/G; viii. Personal search memo as Ex.PW4/H; ix. Report under Section 57 of the NDPS Act prepared by him as Ex.PW4/I;
x. Sample pullanda Mark A which was sent to FSL and produced by MHC(M) with the seal of FSL as PW4/Article1 (Colly);
xi. Two cloth pullandas Mark B and Mark C produced by MHC(M) with the seals of the IO and the SHO as PW4/Article2 (Colly) & PW4/Article3 (Colly); xii.Original notice under Section 50 of the NDPS Act served upon the accused which was recovered from the personal search of the accused and brought by MHC(M) as Ex. PW4/J. SC No. 34/2018 Page 10 of 54 State vs. Mohd. Alam Judgment dt 26.03.2024
11. PW5 is HC Lalit, who was the Duty Officer in PS Crime Branch on 22.11.2017 and his duty hours were from 8.00 am to 8.00 pm. He registered the FIR in the present case on the basis of tehrir brought by Ct. Samrat through computer, computerized copy of which is Ex.PW5/A and endorsement made by him on the rukka is Ex.PW5/B. He also issued certificate under Section 65B of the Evidence Act to the effect that there was no break down in the computer while recording/typing the FIR and the same is Ex.PW5/C. He made relevant entries in the DD register vide DD nos. 20 and 22 after receiving the rukka and at the time of registration of FIR and produced the copies of the relevant pages of the DD register showing the said entires as Ex.PW5/D and Ex. PW5/E respectively.
12. PW6 is ASI Mohd. Ismail (the then Head Constable) who was part of the raiding party. He deposed more or less on the similar lines as deposed by PW4 SI Vinod Kumar, the 1st IO of the case.
13. PW7 is SI Sanjay, the 2nd IO of the case who carried out the investigation in the present case after registration of FIR. He was handed over tehrir and copy of FIR by HC Samrat on 22.11.2017. He went to the spot where he was handed over the custody of the accused and documents related to the present matter by SI Vinod. He prepared site plan Ex.PW4/F at the instance of SI Vinod, SC No. 34/2018 Page 11 of 54 State vs. Mohd. Alam Judgment dt 26.03.2024 interrogated the accused, arrested him at about 8.30 pm vide arrest memo Ex.PW4/G, conducted his personal search vide personal search memo Ex.PW4/H during which original notice under Section 50 of the NDPs Act and Rs. 550/ were found. He recorded the disclosure statement and supplementary disclosure statement of the accused which are Ex. PW7/A & Ex.PW7/B and, thereafter, he along with other police officials left the spot and they reached at PS Pushp Vihar Crime Branch where he handed over personal search articles of the accused to ASI Jag Narain, MHC(M). He also produced the accused before Inspector Rajnikant in the Office of Crime Branch at Kotwali, Darya Ganj who satisfied with the arrest of the accused and, thereafter, he along with the accused came back to their office. He made a DD entry No. 2 dated 23.11.2017 which is Ex.PW7/B1 in this regard and recorded statement of witnesses during investigation. He prepared a report under Section 57 of the NDPS Act Ex.PW1/E, carbon copy of which is Ex.PW7/C and presented the same before Inspector Rajnikant. He also got deposited the sealed pullanda / exhibits at the FSL Rohini through HC Birbal on 24.11.2017. During further investigation, he obtained three days PC remand of the accused after his medical examination who led to them to Badaun, UP to trace out the source and one person ,namely Pappu was apprehended at the instance of the accused. He interrogated the said Pappu at his residence and instructed SC No. 34/2018 Page 12 of 54 State vs. Mohd. Alam Judgment dt 26.03.2024 him to join investigation as and when required. He also tried to trace the other accused, namely, Wasim in the area of Dev Chara, Badaun, UP but he could not be traced out and on 25.11.2017, they came back to their office at Delhi along with the accused. On 26.11.2017, he produced the accused in the Court who was sent to judicial custody. After completion of investigation, he prepared the charge sheet and filed the same in the Court on 19.01.2018 and subsequently filed FSL result on 02.04.2018.
14. PW8 is ACP Jarnail Singh, the then SHO, PS Crime Branch. He was handed over three white pullandas sealed with the seal of 2A/PS NB/ DELHI along with FSL form and seizure memo of the case property by Ct. Samrat. He after obtaining the FIR number of the case wrote down the FIR number on the seizure memo, FSL form and on the pullandas and counter sealed all the three pullandas with his seal 'JS' and also put his seal on the FSL form and, thereafter, he deposited the case property in the malkhana through MHC(M) ASI Jagnarain who made a entry in this regard in register no. 19 at Serial no. 2887 which he countersigned and the said entry in the register is Ex.PW8/A. He also made an entry on the roznamcha vide DD No. 21 dated 22.11.2017 at 4.05 pm to this effect, certified copy of which is Ex. PW8/B.
15. PW9 HC Samrat Singh is one of the members of the raiding party. He deposed more or less on the similar SC No. 34/2018 Page 13 of 54 State vs. Mohd. Alam Judgment dt 26.03.2024 lines as deposed by PW4 SI Vinod Kumar, the 1 st IO of the case.
16. PW10 is Sh. Shailendra Yadav is the Senior Scientific Officer, Chemistry who was posted at Forensic Science Laboratory (FSL), Rohini on 24.11.2017 and to whom sealed parcel/exhibit Mark A was alloted for chemical analysis. He chemically examined the exhibit and prepared his detailed report which is Ex. PW10/A.
17. PW11 is retired SI Jag Narain, the then MHC(M) at PS Crime Branch who deposited three sealed pullandas sealed with the seal of '2A PS NB DELHI' and 'AS' along with FSL form bearing the same seals and carbon copy of seizure memo in the malkhana on 22.11.2017 which were handed over to him by Inspector Jarnail Singh, SHO, PS Crime Branch in his room vide entry no. 2887 Ex.PW8/A. He was also handed over personal search articles of the accused on 23.11.2017, at around 10.15 am by ASI Sanjay which he deposited in the malkhana vide entry no. 2888 Ex. PW11/2. On 24.11.2017, he handed over FSL form, photocopy of seizure memo, attested copy of present FIR and RC No. 422/21/17 vide Ex. PW11/3 to HC Birbal on the direction of the SHO to deposit the same at the FSL and in the evening hours HC Birbal handed over him the acknowledgment of case accepted/receipt issued by FSL which is Ex. PW11/4. He further deposed that on SC No. 34/2018 Page 14 of 54 State vs. Mohd. Alam Judgment dt 26.03.2024 12.03.2018, ASI Sanjay handed over him the FSL result and the pullanda duly sealed with the seal of FSL. He made entry in this regard in register no. 19 against Serial no. 2887 which is Ex. PW11/5.
18. After closing of prosecution evidence, statement of the accused under Section 313 Cr.P.C. was recorded wherein he pleaded his innocence and claimed false implication. The accused chose not to lead evidence in his defence.
19. I have heard the Ld. Additional Public Prosecutor and the Ld. Counsel for the accused and perused the record.
20. During course of the arguments, Ld. Addl. Public Prosecutor submitted that the raiding team members i.e. PW4 SI Vinod, the 1st IO, PW6 ASI Mohd. Ismail and PW9 HC Samrat Singh as well as the 2nd IO i.e. PW7 SI Sanjay have fully supported the prosecution case regarding recovery of contraband from the possession of the accused and his arrest in the present case. He further submitted that necessary compliance of Sections 42, 50, 55 and 57 of the NDPS Act has been properly made in the present case which is duly proved with the evidence of prosecution witnesses. He further submitted that the prosecution has been able to prove its case against the accused beyond reasonable doubt through the testimonies of the prosecution witnesses. Thus, he prayed that the accused SC No. 34/2018 Page 15 of 54 State vs. Mohd. Alam Judgment dt 26.03.2024 may be convicted for the offence he is charged with.
21. Per contra, Ld. Counsel for the accused submitted that the accused has been falsely implicated in the present case due to enmity with one Babu who is cousin of maternal uncle of the accused and the contraband allegedly recovered from the possession of the accused was planted upon him by the police. He further submitted that no public witness has been joined during the entire investigation and the entire case rests solely on the testimony of police officials which makes the story of the prosecution doubtful. He further submitted that notice under Section 50 of the NDPS Act allegedly served upon the accused was defective being not served upon the accused at the spot. He contended that the signatures of the accused were taken on the notice as well as on the other documents while sitting in the police station. Ld. Defence Counsel further submitted that there was no compliance of Section 52A of the NDPS Act as the samples were not drawn by the IO in the presence of Magistrate. He contended that the prosecution has failed to prove its case against the accused beyond reasonable doubt and hence the accused is liable to be acquitted.
DISCUSSION ON THE POINT OF COMPLIANCE OF SECTION 42 OF THE NDPS ACT
22. As per settled provision of Section 42 of the Act, the SC No. 34/2018 Page 16 of 54 State vs. Mohd. Alam Judgment dt 26.03.2024 concerned police officer, who has received the secret information, is required to inform his immediate senior officer about the secret information within 72 hours of its receipt.
23. In regard to the compliance of Section 42 NDPS Act, the prosecution has examined three witnesses, namely, PW1 ASI Dinesh Kumar, PW2 Inspector Rajni Kant & PW4 SI Vinod Kumar, the 1st IO of the case.
24. PW4 SI Vinod Kumar deposed that on 22.11.2017, he was posted as SI at Narcotics Cell, Crime Branch, Darya Ganj and on that date, at about 8.30 am, one secret informer came to his office and informed that one person, namely, Mohd. Alam, a resident of Badaun, UP after procuring heroin from Bareily and Badaun supplies the same in Delhi and he would come between 10.15 am to 10.45 am along with huge consignment of heroin at road leading from Seema Puri towards Ghazipur near Anand Vihar Railway Flyover to supply the same to someone and if raided, he could be apprehended along with contraband. He further deposed that after satisfying with the information, he produced the said secret informer before Inspector Rajnikant Sharma at about 8.45 am, who made inquiries from the secret informer and conveyed the secret information to Sh. Sanjeev Tyagi, ACP, Narcotics Cell telephonically who directed Inspector Rajnikant to take appropriate legal action who further conveyed the directions to him. He further deposed that he reduced the SC No. 34/2018 Page 17 of 54 State vs. Mohd. Alam Judgment dt 26.03.2024 information in writing vide DD no. 5 at about 9.00 pm and produced the copy of the same before Inspector for compliance under Section 42 NDPS Act.
25. The witness was shown carbon copy of DD No. 6dated 22.11.2017 Ex. PW2/A lodged by him regarding proceedings under Section 42 of the NDPS Act from the judicial record and on seeing the same, he stated that the number of the DD regarding proceedings under Section 42 NDPS Act has been inadvertently mentioned by him as DD No. 6 on the true copy whereas it should be numbered as DD no. 5 as mentioned in daily dairy register. He also produced original DD register to show that contents of DD no. 5 and the contents of true copy of DD No. 6 Ex. PW2/A are the same. He placed on record the copy of the relevant page of the DD register showing entry of DD No. 5 which is Ex. PW4/A.
26. In the crossexamination, this witness (PW4) categorically stated that he had given information to Inspector Rajnikant at 8.45 am and DD No. 5 was sent to Inspector Ranjikant after 9.00 am. He was suggested that no DD No. 5 was lodged or that no raiding party was prepared which he denied.
27. The aforesaid crossexamination of the witness clearly shows that nothing could be extracted by the Ld. Defence Counsel to assail his version about receipt of the secret information and passing on the information to his SC No. 34/2018 Page 18 of 54 State vs. Mohd. Alam Judgment dt 26.03.2024 immediate senior officer within prescribed time.
28. The testimony of PW4 SI Vinod Kumar has been duly supported by PW2 Inspector Rajnikant who deposed that on 22.11.2017, he was posted at Narcotics Cell, Kotwali, Darya Ganj, Delhi and on that day, at about 8.45 am, SI Vinod along with informer came to his office and passed on the secret information to him. He deposed that as per the information, one person, namely, Mohd. Alam who is resident of Badaun, UP supplies heroin in the area of Delhi and NCR after procuring it from Bareily/Badaun, UP and he would come between 10.15 to 10.45 am near Anand Vihar Flyover on road which goes from Seema Puri to Gazipur. He after getting himself satisfied with the secret information passed on the same telephonically to ACP/N&CP Sh. S.K. Tyagi who directed to conduct raid and accordingly he directed SI Vinod to conduct the raid immediately. He further deposed that after sometime, at about 9.15 am, SI Vinod produced original copy of DD no. 6 along with its carbon copy (though the number of the DD should have been 5 instead of 6 as clarified by PW4 SI Vinod Kumar who lodged the said DD). He forwarded the original DD No. 6 Ex.PW1/A to ACP S.K. Tyagi, carbon copy of which is Ex. PW2/A.
29. The Ld. Defence Counsel could not impeach the aforesaid deposition of the witness during his cross examination. The witness categorically stated that he made a call to ACP Sh. S.K. Tyagi at about 8.50 am though he SC No. 34/2018 Page 19 of 54 State vs. Mohd. Alam Judgment dt 26.03.2024 could not remember the number of ACP. He further stated that the staff of ACP Office had come instantly i.e. at 09.17 am after which he forwarded the DD and then he handed over the said DD to him.
30. In order to prove that the secret information was passed onto the ACP concerned within 72 hours, the prosecution has examined PW1 ASI Dinesh Kumar who was posted as Reader to ACP, Narcotics during the relevant time who brought on record the relevant records to fortify the claim of the prosecution that the information about the secret information was sent to the ACP within the prescribed time. This witness deposed that on 22.11.2017, he received DD no. 6 dated 22.11.2017 regarding report under Section 42 NDPS Act sent by SI Vinod Kumar and forwarded by Inspector Rajnikant Sharma through dak. He made entry in this regard in Diary register at Serial No. 2006 dated 22.11.2017. He further deposed that the DD was produced before the ACP on the same date who made signatures thereon after going through the same. He brought on record the copy of the DD signed by the ACP which is Ex. PW1/A and copy of relevant entry as Ex.PW1/B.
31. In the crossexamination, this witness (PW1) stated that the time of receiving of DD no. 6 is not mentioned in the diary register, however the same was received before lunch. He did not remember the name of the person who brought the dak. He categorically stated that he produced SC No. 34/2018 Page 20 of 54 State vs. Mohd. Alam Judgment dt 26.03.2024 the report instantly after receiving the same. He was put a suggestion that all the entries were ante dated and ante time and it was made to suit the case of the prosecution which he denied. He further denied the suggestion that he never produced any report u/s 42 & 57 NDPS Act before ACP.
32. The aforesaid crossexamination of the witness reveals that the Ld. Defence Counsel has tried to make out a case that since time of receipt of the DD is not mentioned in the register, the entries made by the witness are ante dated and ante time.
33. Perusal of Ex. PW1/B would show that the same is the copy of the diary of correspondence register showing entry at Serial No. 2006 regarding receipt of DD No. 6 in the Office of ACP, N&CP and it does not have any column of time. The DD no. 6 (though it should have been DD No. 5) Ex. PW1/A has been duly signed by the then ACP and under signatures he put the date as 22.11.2017 and it clearly shows that he had seen the DD no. 6 on 22.11.2017 itself. Therefore, only because the time is not mentioned on DD no. 5 Ex.PW1/A (though inadvertently written as DD No. 6), it cannot be concluded that the entries are ante time and ante dated.
34. From the testimonies of aforesaid witnesses, it is established on record that a secret information about the movement of accused was received by PW4 SI Vinod SC No. 34/2018 Page 21 of 54 State vs. Mohd. Alam Judgment dt 26.03.2024 Kumar at Office of Narcotics Cell, Crime Branch, Kotwali, Delhi on 22.11.2017, at about 8.30 am and gist of the same was mentioned in the DD no. 5 Ex.PW1/A (though inadvertently written as DD No. 6). It is further established that PW4 SI Vinod Kumar handed over this DD to his senior officer i.e. PW2 Inspector Rajni Kant who after putting his endorsement forwarded the same to ACP S.K. Tyagi which was acknowledged in the Office of ACP on 22.11.2017 vide entry no.2006, copy of which is also brought on record as Ex.PW1/B. It is also established on record that DD No. 5 regarding the secret information was produced before ACP S.K. Tyagi within the prescribed time. It is, thus, held that compliance of Section 42 NDPS Act has been properly made in the present case.
DISCUSSION ON THE POINT OF RECOVERY OF CONTRABAND
35. As per prosecution case, on 22.11.2017, a secret information was received by SI Vinod Kumar whereupon he with permission of his superiors constituted a raiding team comprising of himself, ASI Mohd. Ismail and Ct. Samrat. The raid was conducted at the place of information and the accused was apprehended from whom 200 grams of heroin was effected.
36. In order to prove its case, the prosecution has examined recovery witnesses, namely, PW4 SI Vinod SC No. 34/2018 Page 22 of 54 State vs. Mohd. Alam Judgment dt 26.03.2024 Kumar, PW6 ASI Mohd. Ismail and PW9 HC Samrat. All the recovery witnesses have spelled out in detail the manner in which the accused was apprehended and recovery of contraband was effected from him.
37. PW4 SI Vinod Kumar, who is the first IO and In charge of the raiding team, deposed that he prepared the raiding team and they all along with secret informer left the office in his private Swift car bearing No. DL9CR 3728 and in this regard he made departure entry vide DD no. 6. Prior to departing office, he collected field testing kit, electronic weighing machine and IO bag from the Office. He further deposed that they reached at the spot i.e. near railway flyover, Anand Vihar Road leading towards Ghazipur, UP at 10.00 am via Shanti Van, Geeta Colony, Yamuna Bridge, Jheel ganda nala, Karkari Mor, Patparganj Industrial area and on the way at Shanti Van red light and at Karkari Mor, public persons were asked to join the raiding party but they refused for the same. He further deposed that he had parked the car 2025 meter before the end of flyover and they all reached the spot by walking 2030 meters. He briefed the raiding party and thereafter they took their position at the surroundings of the spot in scattered manner at about 10.15 am. The secret informer was with him. He further deposed that at around 10.30 am, on seeing one person coming from Ghazipur side who was wearing cream colour kurta pyjama and was having long beard, the secret informer identified him from SC No. 34/2018 Page 23 of 54 State vs. Mohd. Alam Judgment dt 26.03.2024 a distance of 2030 meter as Mohd. Alam and then the secret informer left the place. He further deposed that the said person came on the service lane and stopped there and started waiting for someone. After 10 minutes when nobody came to the said person and he tried to turn back, all members of the raiding party apprehended him. He further deposed that he introduced himself and other members of raiding party to said person and on interrogation, the said person disclosed his name as 'Mohd. Alam' (the accused herein). He further deposed that he told the accused about the secret information received by him and asked the accused for his search. He also apprised the accused about his legal right and served a notice under Section 50 NDPS Act upon the accused but the accused refused to get his search conducted in the presence of a Gazetted officer or a Magistrate. He further deposed that he conducted cursory search of the accused and one transparent polythene mouth of which was tied with rubber band containing some brownish powdery substance was recovered from right side pocket of wearing kurta of the accused which on checking in the field testing kit was found to be heroin and on weighing the same it was found 200 grams.
38. The aforesaid testimony of PW4 SI Vinod Kumar, the 1st IO has been duly corroborated by other two recovery witnesses PW6 ASI Mohd. Ismail and PW9 HC Samrat Singh. They have deposed on the similar lines as SC No. 34/2018 Page 24 of 54 State vs. Mohd. Alam Judgment dt 26.03.2024 deposed by PW4 SI Vinod Kumar in his chief examination and very well supported his version regarding apprehension of the accused from the spot and recovery of the contraband i.e. 200 grams heroin from the possession of the accused.
39. It is interesting to note that PW9 HC Samrat Singh who was one of the members of the raiding party has not been crossexamined by the accused at all despite opportunity given to him to crossexamine the witness and his entire testimony has gone unrebutted and unchallenged.
40. In the crossexamination of the other two recovery witnesses as well, nothing material could be brought on record by the Ld. Defence Counsel to disbelieve their version regarding apprehension of the accused from the spot and recovery of contraband from his possession.
41. PW4 SI Vinod Kumar, the 1st IO categorically stated in his crossexamination that secret informer left the spot at 10.30 am and he remained with them for half an hour at the spot. He further stated that they reached at the spot at 10.00 am and left the office at 9.20 am vide DD No. 6. He further stated that they reached Shanti Van red light at 9.25 am and stopped vehicle before red light. He further stated that he collected filed testing kit and electronic weighing machine at 9.10 am and entry was made in the register and it took 23 minutes for the same.
SC No. 34/2018 Page 25 of 54State vs. Mohd. Alam Judgment dt 26.03.2024 He further stated that they reached Karkari Mor at 9.40 am and stopped for 23 minutes. He further stated that he briefed the raiding party before raid. He further stated that the car was parked beside the road which goes towards Anand Vihar by the side of flyover, 2030 meter before where it ends. He further stated that they were scattered and in moving position within radius of 1015 meter and that the secret informer was with him. He further stated that the secret informer pointed out from a distance of 20 30 meter at about 10.30 am and that the accused was apprehended at 10.4010.45 am.
42. PW6 ASI Mohd. Ismail in his crossexamination stated that SI Vinod had called him to his office at 9.15 am and SI Vinod briefed them for 5 minutes. He further stated that the secret informer left the spot at 10.30 am. He further stated that they reached at Shanti Van red light within 5 minutes i.e. at around 9.20 am. He further stated that they had crossed the red light of Shanti Van and then IO had requested the passers by to join the raiding party. He further stated that they had parked the vehicle on service lane after crossing the flyover. He further stated that the accused stopped at a distance of 50 meters from the flyover. He further stated that the members of raiding party had taken position within periphery of 20 meters, though he could not remember as to which member of the raiding party was standing with which member.
SC No. 34/2018 Page 26 of 54State vs. Mohd. Alam Judgment dt 26.03.2024
43. It is, thus, clear from the testimony of above recovery witnesses i.e. PW4 ASI Vinod and PW6 ASI Mohd. Ismail that they very well withstood the test of cross examination and no material contradiction has surfaced in their cross examination to doubt their version regarding the recovery proceedings.
44. The accused though in his statement recorded under Section 313 Cr.P.C. claimed innocence and false implication in the present case. He claimed that that there was enmity regarding financial transactions with one Babu who was cousin of his maternal uncle and already extended threat to him to falsely implicate and he i.e. Babu did the same with the help of police and alleged contraband has been planted upon him. The accused, however, has not explained the reason as to why the police officials would falsely implicate him at the instance of said Babu. It is nowhere case of the accused that said Babu had strong connection or contacts with the police officials nor the accused has led any evidence to said effect. Except the vague and bald assertion, nothing has been brought on record by the accused to suggest that due to his enmity with Babu, cousin of his maternal uncle, the contraband has been planted upon him by the police officials at the behest of said Babu. The accused has also not claimed any animosity or acquaintance with the police. Therefore, the defence taken by the accused of his false implication does not appear to be plausible. Furthermore, till date the SC No. 34/2018 Page 27 of 54 State vs. Mohd. Alam Judgment dt 26.03.2024 accused has not raised any protest against his alleged false implication which shows that he has taken this plea for the sake of plea and there is no substance in it.
45. The accused has also given a vague suggestion to PW6 ASI Mohd. Ismail that entire documents pertaining to raid or recovery were prepared at the police station which suggestion was denied by the witness. On the contrary, the witness categorically stated that they had prepared the documents on the spot.
46. Both the recovery witnesses, namely, PW4 SI Vinod Kumar and PW6 ASI Mohd. Ismail have disclosed all the material facts pertaining the time when they arrived at the place of information, the route taken by them to reach the spot, the time when the accused arrived there, the manner in which they apprehended the accused, the colour of the kurta pyjama of the accused which he was wearing at that time and from which pocket of the kurta, the contraband was recovered from the possession of the accused and what documents were prepared by the 1 st IO. They have deposed on the similar lines and very well supported the version of each other and their testimonies could not be shaken by the Ld. Defence Counsel during their crossexamination as noted herein above.
47. In view of these discussions, it is held that prosecution has successfully proved that the accused was apprehended from the spot i.e. at road leading from SC No. 34/2018 Page 28 of 54 State vs. Mohd. Alam Judgment dt 26.03.2024 Seemapuri towards Ghazipur near Anand Vihar Railway Flyover and that 200 grams heroin was recovered from the right pocket of the wearing kurta of the accused.
DISCUSSION ON THE POINT OF COMPLIANCE OF SECTION 50 OF NDPS ACT
48. The legal position in respect to the Section 50 NDPS Act has been laid down by Hon'ble Supreme Court in the case titled as State vs Baldev Singh reported as 1999 AIR (SC) 2378 that the compliance of the provisions of section 50 NDPS Act is mandatory. It is also held in this case that the compliance of this provision is not necessary where recovery was effected without prior information and where it was the case of a chance recovery. The relevant para of this judgment reads as under:
11. On its plain reading, Section 50 would come into play only in the case of a search of a person as distinguished from search of any premises etc. However, if the empowered officer, without any prior information as contemplated by Section 42 of the Act makes a search or causes arrest of person during the normal course of investigation into an offence or suspected offence and on completion of that search, a contraband under the Narcotic Drugs And Psychotropic Substances Act is also recovered, the requirements of Section 50 of the Act are not attracted.
49. In the case titled as State of Punjab vs. Balbir Singh reported as 1994(3) SCC 299, same view has been taken by Hon'ble Supreme Court. The relevant para reads SC No. 34/2018 Page 29 of 54 State vs. Mohd. Alam Judgment dt 26.03.2024 as under:
27. The questions considered above arise frequently before the trial courts. Therefore, we find it necessary to set out our conclusions which are as follows :
1) If a police officer without any prior information as contemplated under the provisions of the Narcotic Drugs And Psychotropic Substances Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offence as provided under the provisions of Cr P.C. and when such search is completed at that stage Section 50 of the Narcotic Drugs and Psychotropic Substances Act would not be attracted and the question of complying with the requirements thereunder would not arise. If during such search or arrest there is a chance recovery of any narcotic drug or Psychotropic substance then the police officer, who is not empowered, should inform the empowered officer who should thereafter proceed in accordance with the provisions of the Narcotic Drugs And Psychotropic Substances Act. If he happens to be an empowered officer also, then from that stage onwards. he should carry out the investigation in accordance with the other provisions of the Narcotic Drugs And Psychotropic Substances Act.
50. As per prosecution case, after apprehension of the accused, he was served with the mandatory notice under Section 50 of the NDPS Act and only after his refusal to avail his legal rights, his search was carried out. However, the accused in his statement recorded under Section 313 Cr.P.C. has denied to have been served with any such notice at the spot or to have written his refusal in his own handwriting on the carbon copy of the notice. In view of the said claim of the accused, it is to be seen whether or SC No. 34/2018 Page 30 of 54 State vs. Mohd. Alam Judgment dt 26.03.2024 not compliance of Section 50 of the NDPS Act was properly made before the search of the accused.
51. In this regard, PW4 SI Vinod Kumar, the 1 st IO of the case and the Incharge of the raiding team deposed that after apprehension of the accused, he interrogated the accused who told his name as Mohd. Alam. He further deposed that he stated about the secret information to the accused that they had secret information that he (the accused) was indulged in supply of selling heroin in Delhi after procuring it from Bareily, Badaun, UP and on that day also he had come there to supply heroin to somebody and there were chances of recovery of heroin from his possession and for the said purpose, his search was to be conducted. He further deposed that he apprised the accused regarding his legal rights that for the purpose of search he could be produced before Gazetted Officer or Magistrate or they might be called at the spot for his search. He also offered the accused to take search of the raiding party and of the Swift car prior to his search but the accused has refused for his search before the Gazetted Officer or Magistrate and also refused for search of members of the raiding party.
52. The witness further deposed that he prepared notice under Section 50 of the NDPS Act in duplicate and served the original notice to the accused. He had explained the contents of notice to the accused by reading who wrote the SC No. 34/2018 Page 31 of 54 State vs. Mohd. Alam Judgment dt 26.03.2024 reply of the notice on the carbon copy of the notice Ex.PW4/C in his handwriting and, thereafter, the cursory search of the accused was conducted and the contraband was recovered from his wearing kurta. PW4 SI Vinod Kumar further deposed that after arrest of the accused, his personal search was conducted by 2nd IO ASI Sanjay vide personal search memo Ex.PW4/H during which original notice under Section 50 of the NDPS Act besides Rs. 550/ was recovered.
53. In his crossexamination, PW4 SI Vinod Kumar categorically stated that he gave notice under Section 50 NDPS Act at about 11.15 am. He further stated that the accused wrote reply in his handwriting. He had not called any Gazetted Officer or Magistrate as the accused had refused for the same. He further stated that the notice was prepared while keeping the paper on the bonnet of the car.
54. The aforesaid crossexamination of PW4 SI Vinod Kumar clearly shows that the Ld. Defence Counsel could not impeach his testimony regarding preparation of notice under Section 50 of the NDPS Act by him in duplicate and service of the original notice upon the accused at the spot before his search.
55. PW6 ASI Mohd. Ismail and PW9 HC Samrat Singh who were the other members of the raiding party in their respective chief examination have deposed on the similar lines that IO informed the accused that if he SC No. 34/2018 Page 32 of 54 State vs. Mohd. Alam Judgment dt 26.03.2024 wanted, he could be produced before Gazetted Officer/ Magistrate before conducing his personal search and also informed him that if he intended to conduct the personal search of the members of raiding team and the private vehicle, he may do the same. They further deposed that IO had also explained the same to the accused.
56. As stated above, PW9 HC Samrat Singh was not crossexamined by the accused despite opportunity granted to him to crossexamine the witness and the testimony of this witness has gone unrebutted and unchallenged.
57. In the crossexamination of PW6 ASI Mohd. Ismail as well, the Ld. Defence counsel could not bring on record anything in support of defence of the accused that no such notice was prepared and served upon the accused at the spot. The witness categorically stated that reply on notice under Section 50 NDPS Act is in the handwriting of the accused. He was put a suggestion that the accused was forced to write reply on the notice under Section 50 NDPS Act which he denied. He further denied the suggestion that notice under Section 50 NDPS was never served upon the accused. These suggestions put to the witness are contradictory itself. At one hand, the accused contended that he was never served with the notice, while in the same breathe he claimed that he was forced to write the reply on the notice. The witness was further put a suggestion that the accused was not made apprised of his right under Section 50 NDPS Act which was denied by the witness.
SC No. 34/2018 Page 33 of 54State vs. Mohd. Alam Judgment dt 26.03.2024 He admitted that search of the accused was not conducted before a Gazetted Officer. He volunteered that the accused had refused to be searched in the presence of Gazetted Officer or a Magistrate and he had written his refusal on the notice. He stated that IO had not called any Gazetted Officer or Magistrate at the spot. He denied the suggestion that entire documents pertaining to raid or recovery were prepared at the PS. He categorically stated that they had prepared the documents on the spot. He further stated that notice was prepared on the bonnet of the car and other documents were prepared while sitting in the car.
58. From the aforesaid crossexamination of above two recovery witnesses, the Ld. Counsel for accused though has tried to make out a case that since the accused was not searched in the presence of a Gazetted Officer or a Magistrate, there was no compliance of Section 50 of the NDPS Act. However, both the witnesses categorically explained the reason for the same that since the accused had refused to be searched in the presence of Gazetted Officer or Magistrate, he was not taken to any of them for his search. The accused has admitted the reply on the carbon copy of the notice Ex. PW4/C to be in his handwriting. Though during crossexamination of PW4 SI Vinod Kumar, the 1st IO, he claimed that he was forced to write the said reply, but this claim of the accused shatters in view of contradictory suggestion given to PW4 SI Vinod Kumar that he was never served with the notice SC No. 34/2018 Page 34 of 54 State vs. Mohd. Alam Judgment dt 26.03.2024 as noted herein above.
59. It is apparent from the reply of the accused on carbon copy of the notice Ex.PW4/C that he admitted in his own handwriting that he was served with the original notice and was also explained contents of the same as well as the meaning of the Magistrate and Gazetted Officer. He also recorded his refusal to have search in the presence of Gazetted Officer or Magistrate. Once the accused denied to avail his legal rights, there was no need to produce him before a Gazetted Officer or Magistrate nor any of them was required to be called at the spot for the search of the accused. Therefore, the contention of the Ld. Defence Counsel that since the accused was not searched in the presence of Gazetted Officer or a Magistrate, there was no compliance of Section 50 NDPS Act is devoid of any merit.
60. Similarly, I do not find substance in the argument of the Ld. Defence Counsel that notice was not served upon the accused at the spot and the same was served upon the accused later on in the police station. The Ld. Defence Counsel could not impeach the testimonies of PW4 ASI Vinod Kumar, the 1st IO and PW6 ASI Mohd. Ismail in this regard. Both the witnesses have well supported version of each other and categorically disclosed during their crossexamination that the notice was prepared on the bonnet of the car at the spot.
SC No. 34/2018 Page 35 of 54State vs. Mohd. Alam Judgment dt 26.03.2024
61. In view of the testimonies of above two recovery witnesses coupled with the unrebutted testimony of PW9 HC Samrat, the prosecution has successfully proved on record that the accused was properly served with the notice under Section 50 of the NDPS Act at the spot before his search and there was no violation of the said mandatory provision.
DISCUSSION ON THE POINT OF SEIZURE OF CONTRABAND, PROCEEDINGS REGARDING DRAWING OF SAMPLE AND COMPLIANCE OF SECTION 55 OF THE NDPS ACT
62. As per the prosecution case, SI Vinod Kumar, the first IO of the case after getting the recovery effected from the possession of the accused, seized the same and drew samples. He deposed that some brownish powdery substance was recovered from the right side pocket of wearing kurta of the accused and on checking on the field testing kit, it was found positive for heroin. He weighed the entire recovered powder along with polythene and it was found to be 200 grams. He further deposed that he drew two samples of 5 grams each and kept them in separate two transparent polythenes, which were converted into two cloth parcels and these samples were given Mark A & B. He also converted the remaining contraband of 190 grams into cloth parcel which was given Mark C and sealed all the parcels with the seal of 2A PS/NB DELHI. He also filled up the FSL form at the spot and put same SC No. 34/2018 Page 36 of 54 State vs. Mohd. Alam Judgment dt 26.03.2024 seal impression and seized all the sealed parcels vide seizure memo Ex.PW4/D and handed over the seal after its use to ASI Mohd. Ismail. He, thereafter, prepared tehrir Ex.PW4/E and handed over the same to Ct. Samrat along with three sealed case property, carbon copy of seizure memo and FSL form with direction to hand over rukka to Duty officer and the remaining things to the SHO for proceedings u/s 55 NDPS Act. He further deposed that Ct. Samrat left the spot at 2.05 pm in his Swift car.
63. The aforesaid testimony of PW4 SI Vinod Kumar, the 1st IO has been duly corroborated by PW6 ASI Mohd. Ismail and PW9 HC Samrat (the then Constable) who were the witnesses to the seizure of contraband by the 1 st IO from the possession of the accused and its sampling. They have deposed on the similar lines as deposed by PW4 SI Vinod Kumar and very well supported his version regarding seizure of the contraband from the possession of the accused, its sampling and sealing.
64. As noted above, PW9 HC Samart has not been crossexamined at all and his testimony has gone unrebutted.
65. In the crossexamination of the other two recovery witnesses including the 1st IO, nothing material could be brought on record by the Ld. Defence Counsel to disbelieve their version regarding seizure of 200 grams of SC No. 34/2018 Page 37 of 54 State vs. Mohd. Alam Judgment dt 26.03.2024 heroin recovered from the possession of the accused, its sealing and sampling done by PW4 SI Vinod Kumar on the spot.
66. PW4 SI Vinod Kumar, the 1st IO in his cross examination stated that the colour of the test conducted by him was purplish which confirm heroin. He further stated that he prepared pullanda and FSL form and completed it at about 12.00 noon. He further stated that it took about 45 minutes to prepare pullandas. He further stated that three pullandas were prepared. He further stated that he handed over pullanda and tehrir along with other documents to Ct. Samrat who departed at about 2.05 pm.
67. PW9 HC Samart Singh corroborated the aforesaid testimony of PW4 SI Vinod Kumar that he was handed over the tehrir Ex. PW4/E, carbon copy of seizure memo, FSL form and seal case property by the 1st IO/PW4 SI Vinod Kumar with direction to hand over the rukka to the Duty Officer and the remaining things to the SHO for the proceedings u/s 55 NDPS Act, which testimony has gone unrebutted as the accused chose not to crossexamine the said witness.
68. Even otherwise, PW5 HC Lalit, who was posted at PS Crime Branch as Duty Officer on 22.11.2017 corroborated the version of PW9 HC Samart Singh regarding handing over tehrir to him. He deposed that at about 3.15, pm Ct. Samart came in DO room and handed SC No. 34/2018 Page 38 of 54 State vs. Mohd. Alam Judgment dt 26.03.2024 over one terhir to him for registeration of case which was sent by SI Vinod and on the basis of tehrir, he got the present case FIR registered through computer, computerized copy of which is Ex. PW5/A and he made endorsement to this effect on the back side of rukka as Ex. PW5/B.
69. Nothing material came out from the cross examination of this witness to disbelieve his aforesaid deposition.
70. PW8 ACP Jarnail Singh, who was posted as SHO PS Crime Branch, Saket on 22.11.2017 has also confirmed handing over of the sealed case property to him by PW9 HC Samrat Singh. He deposed that on 22.11.2017, at about 3.20 pm, Ct. Samrat came to his office and handed over three white pullandas with the seal of 2A PS/PB DELHI along with FSL form and seizure memo of the case property. He after obtaining the FIR number of the case wrote down the FIR number on the seizure memo, FSL form and on the pullandas and counter sealed all the three pullandas with his seal 'JS' and also put his seal on the FSL form. He further deposed that he called MHC(M) ASI Jagnarain, MHC(M) to his office along with register no. 19 who came to him and he directed the MHC(M) to make a entry of the above mentioned sealed pullandas in register no. 19. He further deposed that MHC(M) made a entry regarding deposit of the above mentioned pullandas SC No. 34/2018 Page 39 of 54 State vs. Mohd. Alam Judgment dt 26.03.2024 at Serial no. 2887 which he countersigned and the said entry in the register is Ex.PW8/A. He also made an entry on the roznamcha vide DD No. 21 dated 22.11.2017 at 4.05 pm to this effect, certified copy of which is Ex. PW8/B.
71. The accused chose not to crossexamine this witness and his aforesaid testimony has gone unrebutted, which otherwise has been corroborated by PW11 Retd. SI Jag Narain, the then MHC(M) at PS Crime Branch. He deposed that on 22.11.2017, at around 3.45 pm, he was called by Inspector Jarnail Singh, SHO, PS Crime Branch in his room along with register no. 19 who handed over him three sealed pullandas sealed with the seal of '2A PS NB DELHI' and 'AS' along with FSL form bearing the same seals and carbon copy of seizure memo which he deposited in the malkhana vide entry no. 2887 Ex.PW8/A.
72. There is nothing material in the crossexamination of this witness to impeach his testimony regarding deposit of case property in the malkhana in compliance of Section 55 of the NDPS Act.
73. In view of these discussions, it is apparent that after recovery of contraband, the sampling was done on the spot and the 1st IO PW4 SI Vinod Kumar after sealing the samples and the case property did not retain the seal with him and handed over the same to PW6 ASI Mohd. Ismail who also corroborated the same. It is further evident that SC No. 34/2018 Page 40 of 54 State vs. Mohd. Alam Judgment dt 26.03.2024 immediately after seizure, the pullandas of the contraband, samples and FSL form were sent to PW8 ACP Jarnail Singh, the then SHO who also put his seal and immediately deposited the case property in the malkhana. Hence, it stands proved that compliance of Section 55 of the NDPS Act has been made in the instant case.
DISCUSSION ON THE POINT OF COMPLIANCE OF SECTION 57 OF NDPS ACT
74. As per requirement of Section 57 of the Act, whenever any person makes any arrest or seizure under this Act, he shall, within fortyeight hours after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate superior official.
75. In this regard, PW4 SI Vinod Kumar deposed that he prepared report under Section 57 NDPS regarding seizure of 200 grams heroin from the accused in duplicate on 23.11.2017 and produced before Inspector Rajnikant which was forwarded to higher authorities. He identified the carbon copy of the said report as Ex. PW4/I.
76. In the crossexamination, though he could not remember the time but he categorically stated that the report under Section 57 was given on the next day i.e. 23.11.2017.
77. Similarly, PW7 SI Sanjay, the 2nd IO who carried SC No. 34/2018 Page 41 of 54 State vs. Mohd. Alam Judgment dt 26.03.2024 out the investigation after registration of FIR deposed that he prepared a report under Section 57 of the NDPS Act and handed over to Inspector Rajnikant which is Ex. PW1/E and carbon copy of the same is Ex. PW7/C.
78. This witness was also not crossexamined at all by the accused and his aforesaid testimony has gone unchallenged and uncontroverted.
79. PW2 Inspector Rajnikant has supported the version of PW4 ASI Vinod Kumar, the 1 st IO and PW7 SI Sanjay, the 2nd IO regarding production of reports prepared by them under Section 57 NDPS Act regarding seizure of 200 grams of heroin from accused Mohd. Alam and regarding arrest of the accused before him on 23.11.2017 on which there is no crossexamination of the witness.
80. In order to prove that the information regarding seizure of the contraband from the possession of the accused and arrest of the accused was made to the ACP concerned within the prescribed time, the prosecution has examined PW1 ASI Dinesh Kumar, who was posted as Reader to ACP Narcotics Sh. Sanjeev Kumar Tyagi. He has brought on record the aforesaid two reports under Section 57 of the NDPS Act as Ex.PW1/C and Ex.PW1/E duly signed by PW2 ACP Sanjeev Tyagi. This witness deposed that on 23.11.2017, a report under Section 57 NDPS Act (Ex.PW1/C) regarding seizure of 200 grams heroin from the possession of accused Mohd. Alam SC No. 34/2018 Page 42 of 54 State vs. Mohd. Alam Judgment dt 26.03.2024 prepared by SI Vinod Kumar and another report under Section 57 NDPS Act (Ex.PW1/E) regarding arrest of the accused prepared by ASI ASI Sanjay were received in the office through dak and he made entries in this regard in the register at Serial Nos 2011 and 2012 respectively. He further deposed that both the reports were produced before ACP on the same day who signed both the reports after going through the same. He has placed on record the copy of the relevant entries as Ex.PW1/D and PW1/F.
81. Crossexamination of this witness has already been discussed herein above which was centred around non mentioning of time of receiving of the documents in their office including the reports under Section 57 of the NDPS Act. Perusal of both the reports Ex.PW1/C and Ex.PW1/E shows that the same have been produced and signed by the ACP on the same day of its receipt and within the prescribed time and hence if no time is mentioned in the register of receipt of these reports, it does not affect the case of the prosecution that both the reports were duly produced before the ACP concerned within prescribed time.
82. In view of the above discussions, the prosecution has successfully proved on record that two reports under Section 57 of the NDPS Act, one prepared by SI Vinod Kumar, the 1st IO regarding seizure of the contraband from the possession of the accused Ex.PW1/C and another prepared by ASI Sanjay, regarding arrest of the accused SC No. 34/2018 Page 43 of 54 State vs. Mohd. Alam Judgment dt 26.03.2024 Ex.PW1/E were produced before PW2 Inspector Rajnikant who forwarded the same to ACP Sanjeev Tyagi who signed the same within the prescribed time and hence mandatory provision under Section 57 of the NDPS Act has been duly complied with in the instant case.
DISCUSSIONS ON THE POINT OF NON JOINING OF THE PUBLIC WITNESSES
83. During course of arguments, Ld. Defence Counsel submitted that the prosecution case is highly doubtful as no public witness has been joined during the entire investigation and the prosecution case solely rests on the testimonies of police witnesses who are not reliable and creditworthy being interested witnesses.
84. Admittedly, in the present case no public or independent witness has been joined during course of the investigation, however it is clear from the testimonies of the prosecution witnesses that PW4 SI Vinod Kumar, the 1st IO made efforts to join public witnesses, but none agreed.
85. In this regard, all the members of the raiding team, namely, PW4 SI Vinod Kumar, the 1st IO, PW6 ASI Mohd. Ismail and PW9 HC Samrat Singh have deposed on the similar lines that prior to reaching the spot, they stopped at Shanti Van red light and Karkari Mor and asked 45 passers by at Shanti Van Red light and 56 passersby SC No. 34/2018 Page 44 of 54 State vs. Mohd. Alam Judgment dt 26.03.2024 at Karkar Mor to join the raiding party after disclosing secret information to them but none agreed and went away showing their genuine concern and due to paucity of time, no notice was served upon them.
86. The testimony of PW9 HC Samrat Singh has remained unchallenged as the accused did not cross examine the witness at all despite opportunity given to him. During crossexamination of other two recovery witnesses also, nothing material came out to shake their aforesaid deposition regarding joining of public witnesses.
87. Though during crossexamination of PW4 SI Vinod Kumar was suggested that paan bidi shops are situated near the spot or that there was heavy public movement at the spot which he denied. He stated that bus adda is more than 100 meter from the spot and buses were not preset at the spot. He further stated that there was no police picket at the spot. He denied the suggestion that buses were there at the spot and public persons were also present in heavy number.
88. The aforesaid crossexamination of the witness makes it clear that the Ld. Defence Counsel has tried to extract from the witness that the spot was a busy place and availability of huge public persons over there but could not succeed. The witness denied the spot to be a busy place and heavy movement of the public persons over there.
89. Thus, it is clear that despite sincere efforts made by SC No. 34/2018 Page 45 of 54 State vs. Mohd. Alam Judgment dt 26.03.2024 the IO, public persons did not agree to join the raiding party for investigation. Once it has come on record that public witness could not be joined despite efforts were made, then non joining of independent witness is not fatal to the prosecution case. In this regard, this court is supported by the case law i.e. Ajmer Singh vs. State of Haryana reported as 2010 (2) SCR 785. The relevant para reads as under: It is true that a charge under the Act is serious and carries onerous consequences. The minimum sentence prescribed under the Act is imprisonment of 10 years and fine. In this situation, it is normally expected that there should be independent evidence to support the case of the prosecution. However, it is not an inviolable rule. Therefore, in the peculiar circumstances of this case, we are satisfied that it would be travesty of justice, if the appellant is acquitted merely because no independent witness has been produced. We cannot forget that it may not be possible to find independent witness at all places, at all times. The obligation to take public witnesses is not absolute. If after making efforts which the court considered in the circumstances of the case reasonable, the police officer is not able to get public witnesses to associate with the raid or arrest of the culprit, the arrest and the recovery made would not be necessarily vitiated. The court will have to appreciate the relevant evidence and will have to determine whether the evidence of the police officer was believable after taking due care and caution in evaluating their evidence.
90. It is well settled law that the evidence of police official cannot be doubted unless previous enmity between the accused and the police officials is shown. In Sunil SC No. 34/2018 Page 46 of 54 State vs. Mohd. Alam Judgment dt 26.03.2024 Tomar vs. State of Punjab, Criminal Appeal no. 1690 1691 of 2012 decided on 19.10.12, it was held : 'In a case of this nature, it is better if prosecution examines atleast one independent witness to corroborate its case. However, in the absence of any animosity between the accused and official witnesses, there is nothing wrong in relying upon their testimonies and accepting the documents placed for basing conviction. After taking into account the entire material relied upon by the prosecution, there is no animosity established on the part of the official witnesses by the accused in defence and we also did not find any infirmity in the prosecution case.
91. Furthermore, the police officials are considered to be equally competent and reliable witnesses and their testimony can be relied upon even without corroboration by an independent witness if same is cogent and reliable. In Rohtas vs. State of Haryana, JT 2013(8) SC 181, Hon'ble Supreme Court held that : 'Where all the witnesses are from police department, their depositions must be subject to strict scrutiny. However, the evidence of police officials cannot be discarded merely on the ground that they belong to the police force and either interested in investigating or the prosecuting agency'.
92. Further, it is also not uncommon that these days people are generally reluctant to become part of investigation. In this regard, the Hon'ble High Court in the case of Bheru Lal vs, State while observing that recovery SC No. 34/2018 Page 47 of 54 State vs. Mohd. Alam Judgment dt 26.03.2024 cannot be doubted for the reason of non joining of public witness held as under:
19. Dealing with a similar contention in 'Ram Swaroop v. State (Govt. NCT) of Delhi', 2013(7) SCALE 407, where the alleged seizure took place at a crowded place yet no independent witness could be associated with the seizure, the Apex Court inter alia observed as under:
"7. ....We may note here with profit there is no absolute rule that police officers cannot be cited as witnesses and their depositions should be treated with suspect. In this context we may refer with profit to the dictum in State of U.P. v. Anil Singh, 1988 Supp SCC 686, wherein this Court took note of the fact that generally the public at large are reluctant to come forward to depose before the court and, therefore, the prosecution case cannot be doubted for nonexamining the independent witnesses."
93. Thus, in view of the settled legal position, the testimony of the police officials examined in the instant case cannot be seen with suspicion merely for the reason of non joining of independent witness as firstly it is clear that sufficient efforts were made by the PW4 SI Vinod Kumar to join investigation. Furthermore, the testimonies of the police officials do not suffer from any material contradiction. Moreover, no animosity between the accused and the police officials has been pointed out. Therefore, even otherwise there is no reason to disbelieve the testimonies of police officials regarding non joining of public witnesses and the prosecution case cannot be SC No. 34/2018 Page 48 of 54 State vs. Mohd. Alam Judgment dt 26.03.2024 doubted for nonexamining the independent witnesses.
94. The Ld. Defence Counsel has also vehemently assailed the sampling done by the 1 st IO PW4 SI Vinod Kumar during course of the arguments. He contended that sampling was done in violation of Section 52 A (2) of the NDPS Act and the 1st IO should have drawn the samples before the Magistrate and for non compliance of the said mandatory provision, the entire prosecution case against the accused stands vitiated and on this count only, the accused is liable to be acquitted.
95. It is a matter of record that samples of the contraband recovered from the possession of the accused were drawn by SI Vinod Kumar, the 1st IO at the spot. Now, it has to be seen as to whether the act of drawing samples by the 1st IO without taking recourse to the provisions of subsection 2 of Section 52A of the NDPS Act has rendered the entire prosecution against the accused vitiated as argued by the Ld. Defence Counsel.
96. In Simaranjit Singh vs. State of Punjab, Criminal Appeal No. 1443 of 2023 decided on 09.05.2023, similar issue was raised by the Ld. Counsel for the appellant that the prosecution is vitiated as the work of drawing sample was done by PW7 without taking recourse to subsection 2 of Section 52A of the NDPS Act.
97. The Hon'ble Apex Court while referring to paragraphs 15 to 17 of its decision in Union of India vs. SC No. 34/2018 Page 49 of 54 State vs. Mohd. Alam Judgment dt 26.03.2024 Mohanlal & Anr., (2016) 3 SCC 379 observed as under: "9. Hence, the act of PW7 of drawing samples from all the packets at the time of seizure is not in conformity with the law laid down by this Court in the case of Mohanlal. This creates a serious doubt about the prosecution's case that substance recovered was a contraband".
98. With these observations, the Hon'ble Apex Court held that the the case of the prosecution is not free from suspicion and the same has not been established beyond a reasonable doubt; accordingly set aside the impugned judgments and quashed the conviction and sentence of the appellant in that case.
99. In Yusuf @ Asif vs. State, Criminal Appeal No. 3191 of 2023 decided on 13.10.2023, a case was registered in the year 2000 on the basis of information received by the Intelligence Officer of Narcotics Control Bureau. As per the information, a vehicle was intercepted on 28.03.2000 and four persons present in the vehicle were found in possession of commercial quantity i.e. 20 kilogram of heroin. After trial, all the said four persons were held guilty under the provisions of NDPS Act and they were sentenced to rigorous imprisonment for 10 years and to pay fine of Rs. 1 lakh each, in default to undergo further imprisonment of one year. The said conviction was confirmed by the Hon'ble High Court by dismissing the appeal preferred by all the four convicts holding that there SC No. 34/2018 Page 50 of 54 State vs. Mohd. Alam Judgment dt 26.03.2024 was no error in the findings of the Trial Court. Aggrieved by his conviction and sentence, one of the convicts has preferred an appeal before the Hon'ble Apex Court.
100. The Hon'ble Supreme Court taking note of provisions of Section 52A(2), (3) and (4) of the NDPS Act, held as under:
12. A simple reading of the aforesaid provisions, as also stated earlier, reveals that when any contraband/narcotic substance is seized and forwarded to the police or to the officer so mentioned under Section 53, the officer so referred to in sub section (1) shall prepare its inventory with details and description of the seized substance like quality, quantity, mode of packing, numbering and identifying marks and then make an application to any Magistrate for the purposes of certifying its correctness and for allowing to draw representative samples of such substances in the presence of the Magistrate and to certify the correctness of the list of samples so drawn.
13. Notwithstanding the defence set up from the side of the respondent in the instant case, no evidence has been brought on record to the effect that the procedure prescribed under subsections (2), (3) and (4) of Section 52A of the NDPS Act was followed while making the seizure and drawing sample such as preparing the inventory and getting it certified by the Magistrate. No evidence has also been brought on record that the samples were drawn in the presence of the Magistrate and the list of the samples so drawn were certified by the Magistrate. The mere fact that the samples were drawn in the presence of a gazetted officer is not sufficient compliance of the mandate of subsection (2) of Section 52A of the NDPS Act.
SC No. 34/2018 Page 51 of 54State vs. Mohd. Alam Judgment dt 26.03.2024
14. It is an admitted position on record that the samples from the seized substance were drawn by the police in the presence of the gazetted officer and not in the presence of the Magistrate. There is no material on record to prove that the Magistrate had certified the inventory of the substance seized or of the list of samples so drawn.
15. In Mohanlal's case, the apex court while dealing with Section 52A of the NDPS Act clearly laid down that it is manifest from the said provision that upon seizure of the contraband, it has to be forwarded either to the officerin charge of the nearest police station or to the officer empowered under Section 53 who is obliged to prepare an inventory of the seized contraband and then to make an application to the Magistrate for the purposes of getting its correctness certified. It has been further laid down that the samples drawn in the presence of the Magistrate and the list thereof on being certified alone would constitute primary evidence for the purposes of the trial.
16. In the absence of any material on record to establish that the samples of the seized contraband were drawn in the presence of the Magistrate and that the inventory of the seized contraband was duly certified by the Magistrate, it is apparent that the said seized contraband and the samples drawn therefrom would not be a valid piece of primary evidence in the trial. Once there is no primary evidence available, the trial as a whole stands vitiated.
101. In view of proposition of law laid down by the Hon'ble Apex Court in the aforesaid judgments, it is clear that if samples of the seized contraband are not drawn in the presence of the Magistrate and the inventory of the seized contraband is not duly certified by the Magistrate as SC No. 34/2018 Page 52 of 54 State vs. Mohd. Alam Judgment dt 26.03.2024 required under Section 52A (2) of the NDPS Act, the whole trial against the accused stands vitiated.
102. In the instant case, it has come on record from the testimonies of recovery witnesses that PW4 SI Vinod Kumar, the 1st IO after seizure of contraband, drew samples on the spot. He after seizure of the contraband did not send it to the officer as required under Section 53 of the Act nor inventory of the seized contraband was prepared by the Officer as mentioned in sub section (1) of Section 52A nor the samples were drawn in the presence of the Magistrate nor the samples so drawn at the spot have been certified by the Magistrate to be correct. It is, thus, evident that the IO did not follow the procedure as laid down under Section 52A(2) of the NDPS Act while drawing the samples and there is violation of said mandatory provision. Hence, the accused is liable to be acquitted on this ground alone as has been done by the Hon'ble Apex Court in the judgments cited supra.
103. Accordingly, accused Mohd. Alam is acquitted of the offence punishable under Section 21 of the NDPS Act. Bail bonds furnished by him under Section 439 Cr.P.C. stands cancelled and his surety is discharged. The bail bonds furnished by him today under Section 437A Cr.P.C in the sum of Rs.25,000/ are accepted, which shall remain in force for a period of six months.
SC No. 34/2018 Page 53 of 54State vs. Mohd. Alam Judgment dt 26.03.2024
104. File be consigned to Record Room after necessary compliance.
Digitally signed BALWANT by BALWANT RAI BANSAL RAI Date: BANSAL 2024.03.27 Announced in the open Court 16:06:54 +0530 th on 26 March, 2024 (Balwant Rai Bansal) Special Judge (NDPS Act), Shahdara Karkardooma Courts, Delhi SC No. 34/2018 Page 54 of 54 State vs. Mohd. Alam Judgment dt 26.03.2024