Delhi District Court
State vs . Nabi Hassan And Ors. Sc No. 43/11 on 11 February, 2016
State vs. Nabi Hassan and ors. SC No. 43/11
IN THE COURT OF SH. DEEPAK GARG : SPECIAL JUDGE NDPS
PATIALA HOUSE COURTS: NEW DELHI
SC No. 43/11
ID No. 02403R0081902011
FIR No. 47/11
PS Special Cell
u/s 21/29/61/85 of NDPS Act
State Vs. 1. Nabi Hassan
S/o Sh. Ali Hassan
R/o H.No. 18/6, IV floor
Parwana Road, Govindpua, Delhi
2. Gulsher @ Sheru
S/o Sh. Ali Raja
R/o Dhanni House, Serpur Chowk,
Kacchi Colony Khajuri Khas, Delhi
3. Mohd. Alam
S/o Sh. Kamaluddin
R/o E195, Jhuggi J.J. Colony
Bawana, Delhi
4. Mohd. Jilani
S/o Mohd. Rahim
R/o E2019 Jhuggi, J.J. Colony
Bawana, Delhi
Date of Institution : 09.11.2011
Judgment reserved on : 04.12.2015
Date of pronouncement : 11.02.2016
FIR No. 47/2011 PS Special Cell Page 1 of 41
State vs. Nabi Hassan and ors. SC No. 43/11
JUDGMENT
1. The chargesheet in the present case has been filed against the aforementioned accused persons u/s 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as 'NDPS Act').
2. Briefly stated the allegations made against the accused persons that can be culled out from the contents of the chargesheet and the documents filed with the same are as follows:
(a) On 5/8/2011 at about 6:15 PM one secret informer came to the office of Special Cell NR, Rohini and informed SI Avinash that one person namely, Lalu @ Langra r/o Kanpur is supplying heroin with the help of Nabi Hassan and Gulsher @ Sheru in Delhi and nearby areas of Delhi and that Gulsher @ Sheru would be coming between 8:008:30 PM at Mojpur Chowk with huge quantity of heroin to supply the same to Nabi Hassan.
(b) SI Avinash produced the secret informer before Inspector Attar Singh who in turn telephonically informed ACP Subhash Tandon about the information received. ACP Subhash Tandon directed for the conduct of a raid.
SI Avinash lodged the information in DD No. 26 in this regard and as per the directions of the ACP, a raiding team comprising SI Avinash, ASI Rakesh, HC Rajbir, HC Suresh Kumar, HC Hawa Singh, Ct. Vikas, HC Ram Niwas and the secret informer left the office of Special Cell in govt. vehicle no. DL1CH 9796 and reached the spot at about 8:00 PM.
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State vs. Nabi Hassan and ors. SC No. 43/11 (c) On the way IO requested 3 passersby at Rohini Jail chowk, 4 passersby
at Mukarba chowk and 5 passersby at Wazirabad chowk to join the raiding team but none of them agreed to do so. On reaching the spot also, IO requested six passersby, four rickshaw walas and four shopkeepers to join the raiding team but none of them agreed to do so. IO briefed the team members and the members of the raiding team positioned themselves at strategic points and started waiting. At about 08.20 PM, one person was seen coming in motorcycle Yamaha bearing no. DL11S 2082 black colour. The said person stopped the motor cycle on the road no. 66 and started waiting for someone and he was identified as the suspect Nabi Hassan by the secret informer. After 5 minutes, one another person, carrying a pink colour polythene in his right hand, came on foot from the side of Durgapuri and stopped near motor cyclist and he was identified as the suspect Gulsher @ Sheru by the secret informer. Thereafter, both started talking with each other and after 5 minutes of talking at about 8:30 p.m. Gulsher handed over the abovesaid pink colour polythene to Nabi Hassan and at that point of time, both were surrounded by the raiding team. IO had informed the ACP regarding apprehension of abovesaid persons from the PCO.
(d) The IO introduced himself and the members of the raiding team to the said persons and apprised them about the information within his knowledge. On enquiry, the accused persons revealed their names as Nabi Hassan and Gulsher @ Sheru. Before initiating proceedings IO requested 4 passersby to join the proceedings but none of them agreed to do so. Both were then FIR No. 47/2011 PS Special Cell Page 3 of 41 State vs. Nabi Hassan and ors. SC No. 43/11 informed about their legal rights and were issued notices u/s 50 of NDPS Act and were made to understand that they have a legal right to be searched before a Magistrate or a Gazetted Officer. Both the accused refused to exercise the said rights and accused Nabi Hassan wrote his refusal in his own hand writing and refusal of accused Gulsher was written by SI Avinash on his request and dictation.
(e) Thereafter, SI Avinash conducted the search of the accused Gulsher @ Sheru but no contraband was recovered from him. Non recovery memo was prepared in this regard. Thereafter SI Avinash conducted the search of the accused Nabi Hassan and the pink colour polythene which was being held by this accused and which was handed over to him by accused Gulsher @ Sheru was opened and on opening the pink polythene, it was found containing transparent polythene having matiala colour powder which on testing with the field testing kit gave positive for heroin. The recovered substance was also weighed and its weight came out to be 500 grams.
(f) Two samples of 5 grams each were taken out from the recovered heroin and were kept in two zip locked polythene and converted into cloth pullanda and given mark A and B. The polythene containing the remaining heroin was also converted into cloth pullanda and given mark C. All the Pullandas were sealed by the IO with the seal of 'ASY'. Form FSL was prepared and the impression of the seal was then affixed on the Form FSL. Seizure Memo was also prepared. Seal after use was handed over to HC Suresh. FIR No. 47/2011 PS Special Cell Page 4 of 41
State vs. Nabi Hassan and ors. SC No. 43/11 (g) The Rukka was prepared and the same alongwith the seizure memos
and sealed property was handed over to HC Hawa Singh, who thereafter went to PS Special Cell and produced the case property before SHO, PS Special Cell and handed over the rukka to Duty Officer for registration of FIR. SHO affixed his seal on all the pullandas and documents and also put the FIR number on the carbon copy of seizure memos, FSL forms and all the pullandas with his signature and deposited the same with MHCM. Further investigation was handed over to SI Praveen Kumar who came to the spot and he was narrated the facts of the case by SI Avinash and the accused persons and the documents prepared were handed over to him. SI Praveen Kumar then inspected the site and prepared the siteplan. Thereafter, SI Praveen Kumar conducted the search of motor cycle but no contraband was recovered from motor cycle. Nil recovery memo was prepared in this regard. Motor cycle was seized. After interrogation the accused persons were then arrested.
(h) Thereafter in pursuance of disclosures statements of accused Nabi Hassan and Gulsher @ Sheru that both of them used to supply heroin to many persons including Mohd. Alam, raiding team along with Nabi Hassan reached near Hanuman Mandir, Bawana. On reaching there, IO requested 45 passersby to join the raiding team but none of them agreed to do so. Thereafter raiding party reached Jhanda chowk. At about 8:00 a.m. one person was seen coming from Bawana side and he was identified by Nabi Hassan as Mohd. Alam.
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State vs. Nabi Hassan and ors. SC No. 43/11 (i) On his apprehension, the IO introduced himself and the members of the
raiding team to the said person and apprised him about the disclosure given by accused Nabi Hassan. On enquiry, the accused revealed his name as Mohd. Alam. He was then informed about his legal rights and was issued notices u/s 50 of NDPS Act and was made to understand that he has a legal right to be searched before a Magistrate or a Gazetted Officer. The accused refused to exercise the said rights and the refusal of accused was written by SI Praveen Kumar on his request and dictation.
(j) Thereafter, SI Praveen Kumar conducted the search of the accused Mohd. Alam and the black colour polythene which was being held by this accused in his right hand was opened and it was found containing transparent polythene having matiala colour powder which on testing with the field testing kit gave positive for heroin. The recovered substance was also weighed and its weight came out to be 350 grams.
(k) Two samples of 5 grams each were taken out from the recovered heroin and were kept in two zip locked polythene and converted into cloth pullanda and given mark D and E. The polythene containing the remaining heroin was also converted into cloth pullanda and given mark F. All the Pullandas were sealed by the IO with the seal of 'PK'. Form FSL was prepared and the impression of the seal was then affixed on the Form FSL. Seizure Memo was also prepared. Seal after use was handed over to HC Raj Singh. Accused Mohd. Alam was arrested.
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State vs. Nabi Hassan and ors. SC No. 43/11 (l) Thereafter raiding team along with the accused persons went to PS
Special Cell and produced the case property before SHO, PS Special Cell. SHO affixed his seal of RSS on all the pullandas and deposited the same with MHCM. IO then also deposited the personal search articles of the accused Mohd. Alam in the Malkhana at PS Special Cell, Lodhi Colony. Special Reports u/s 57 of NDPS Act were prepared.
(m) Thereafter on 7/8/2011 in pursuance of disclosure statement of accused Nabi Hassan that he had kept heroin in his house and he can get recovered the same from his house, SI Praveen Kumar along with SI Avinash, HC Raj Singh, HC Hawa Singh, HC Ram Niwas along with accused Nabi Hassan reached the house of accused Nabi Hassan i.e. H.No. 18/6 Top Floor, Parwana Road, Govindpura, Delhi. After reaching there, SI Praveen Kumar requested 45 neighbours to join the proceedings but none agreed. Thereafter IO conducted the search of the house and during the search an iron box was found in the room situated on the top floor. On opening the box, it was found containing a transparent polythene packet having matiala colour powder which on testing with the field testing kit gave positive for heroin. The recovered substance was also weighed and its weight came out to be 300 grams.
(n) Two samples of 5 grams each were taken out from the recovered heroin and were kept in two zip locked polythene and converted into cloth pullanda and given mark G and H. The polythene containing the remaining heroin was also converted into cloth pullanda and given mark I. All the Pullandas were sealed by the IO with the seal of 'PK'. Form FSL was prepared and the FIR No. 47/2011 PS Special Cell Page 7 of 41 State vs. Nabi Hassan and ors. SC No. 43/11 impression of the seal was then affixed on the Form FSL. Seizure Memo was also prepared. Seal was obtained from HC Raj Singh and after use was again handed over to him.
(o) Thereafter raiding team along with the accused persons went to PS Special Cell and produced the case property before SHO, PS Special Cell. SHO affixed his seal of RSS on all the pullandas and deposited the same with MHCM. Special Reports u/s 57 of NDPS Act were prepared. Efforts were made to trace out the source of supply namely, Lalu @ Langra but he could not be traced.
(p) On 9/8/2011 SI Bhushan Azad had informed SI Praveen Kumar that accused Gulsher had disclosed that he had handed over 400 grams heroin to one Mohd. Jilani on 4/8/2011 and had also disclosed the address of Mohd. Jilani. In pursuance of the abovesaid disclosure statement of accused Gulsher, on 10/8/2011 SI Praveen Kumar along with ASI Prabodh, ASI Ranjeet, ASI Ashok, Ct. Vikas, Ct. Sandeep and Ct. Radha Kishan along with accused Gulsher left the office of Special Cell and reached at about 7:00 a.m. at Bawana J.J. Colony where accused Mohd. Jilani was apprehended from his house at the pointing out of accused Gulsher @ Sheru.
(q) On his apprehension, the IO introduced himself and the members of the raiding team to the said person and apprised him about the disclosure given by accused Gulsher @ Sheru. On enquiry, the accused revealed his name as Mohd. Jilani. He was then informed about his legal rights and was issued notices u/s 50 of NDPS Act and was made to understand that he has a legal FIR No. 47/2011 PS Special Cell Page 8 of 41 State vs. Nabi Hassan and ors. SC No. 43/11 right to be searched before a Magistrate or a Gazetted Officer. The accused refused to exercise the said rights and the refusal of accused was written by SI Praveen Kumar on his request and dictation.
(r) Thereafter, SI Praveen Kumar conducted the search of the accused Mohd. Jilani on which one white polythene was recovered from the right pocket of his worn pant. On opening, the white polythene was found containing transparent polythene having matiala colour powder which on testing with the field testing kit gave positive for heroin. The recovered substance was also weighed and its weight came out to be 140 grams.
(s) Two samples of 5 grams each were taken out from the recovered heroin and were kept in two zip locked polythene and converted into cloth pullanda and given mark J and K. The polythene containing the remaining heroin was also converted into cloth pullanda and given mark L. All the Pullandas were sealed by the IO with the seal of 'BKA'. Form FSL was prepared and the impression of the seal was then affixed on the Form FSL. Seizure Memo was also prepared. Seal after use was handed over to ASI Prabodh. Accused Mohd. Jilani was arrested.
(t) Thereafter raiding team along with the accused persons went to PS Special Cell and produced the case property before SHO, PS Special Cell. SHO affixed his seal of RSS on all the pullandas and deposited the same with MHCM. IO then also deposited the personal search articles of the accused Mohd. Jilani in the Malkhana at PS Special Cell, Lodhi Colony. Special Reports u/s 57 of NDPS Act were prepared.
FIR No. 47/2011 PS Special Cell Page 9 of 41
State vs. Nabi Hassan and ors. SC No. 43/11 (u) Thereafter the sample pullandas of this case were sent to FSL, Rohini.
After receiving the reports from FSL with respect to the contraband, the present chargesheet was filed.
3. On the basis of material placed on record, charges were framed by the Ld. Predecessor of this court vide order dated 07.02.2012. All the accused persons were charged for the offence u/s 29 r.w.s. 21(c) NDPS Act and accused Nabi Hassan and Gulsher @ Sheru were also separately charged for the offence u/s 21(c) NDPS Act. Accused Mohd. Alam was charged for the offence u/s 21(c) NDPS Act and accused Mohd. Jilani was charged for the offence u/s 21(b) NDPS Act. All the accused persons pleaded not guilty to the said charges and claimed trial.
4. In order to prove its case against the accused, the prosecution has examined 17 witnesses in all.
5. PW16 SI Avinash, PW3 HC Hawa Singh and PW7 HC Suresh Kumar are members of the raiding team. They have deposed on similar lines and have reiterated more or less the assertions made in the charge sheet. As per their depositions, DD No. 26, in which the secret information was reduced has been exhibited as Ex.PW16/A. The notices issued to the accused persons Gulsher @ Sheru and Nabi Hassan u/s 50 of the NDPS Act have been exhibited as Ex.PW3/A and Ex.PW3/B respectively and the refusal of accused persons have been exhibited as ExPW3/C and ExPW3/D respectively. The seizure memo prepared with respect to the recovery from the accused Nabi Hassan FIR No. 47/2011 PS Special Cell Page 10 of 41 State vs. Nabi Hassan and ors. SC No. 43/11 has been exhibited as ExPW3/E. The tehrir prepared at the spot has been exhibited as Ex.PW16/C. The non recovery memo regarding search of the motor cycle has been exhibited as ExPW7/C. Special Report u/s 57 of NDPS Act has been exhibited as ExPW16/D.
6. PW1 Duty officer ASI Mohinder Singh has interalia deposed that he was the duty officer on 06/08/2011 and that on this date he had received the rukka of the present case through HC Hawa Singh and had registered the FIR, Ex.PW1/A and had made his endorsement Ex.PW1/B thereon. This witness has proved the DDs no. 13A, 14A, 15A, 7A, 8A and 5A as ExPW1/C to ExPW1/H.
7. PW2 ASI Ranjeet Singh has deposed that on 12/08/2011 on the directions of IO, he had gone to PS Special Cell, Lodhi Colony and had taken one pullanda sealed with the seal of BKA and RSS along with FSL form from MHC(M) and had got the same deposited with FSL, Rohini, obtained receipt and handed over the same to MHC(M).
8. PW4 Sh. M.L. Sharma, Senior Scientific Officer, FSL, Rohini has proved the report prepared by him with respect to the analysis conducted by him of the samples sent to FSL. The said report has been exhibited as Ex. PW4/A and the forwarding letter (FSL form) has been exhibited as ExPW4/B.
9. PW5 SI Gyan Chand, SO to ACP, Special Cell, NR. As per the record produced by this witness, on 5/8/2011 DD no. 26 regarding secret information, on 6/8/2011 reports u/s 57 NDPS Act regarding seizure prepared FIR No. 47/2011 PS Special Cell Page 11 of 41 State vs. Nabi Hassan and ors. SC No. 43/11 by SI Avinash, report u/s 57 NDPS Act regarding arrest of accused Nabi Hassan and Gulsher @ Sheru, disclosure statement of accused Nabi Hassan, on 8/8/2011 report u/s 57 NDPS Act regarding seizure of heroin prepared by SI Praveen Kumar, disclosure statement of accused Nabi Hassan, on 10/8/2011 report u/s 57 NDPS Act regarding arrest of accused Mohd. Jilani prepared by SI Praveen Kumar, disclosure statement of Mohd. Jilani were received in the office of ACP and that the said report was put before ACP. The reports and record produced by this witness have been duly exhibited during his testimony as Ex.PW5/A to Ex.PW5/P.
10. PW8 Dr. Lingraj Sahoo, Senior Scientific Officer, FSL, Rohini has proved the report prepared by him with respect to the analysis conducted by him of the samples sent to FSL. The said report has been exhibited as Ex. PW8/A and the forwarding letter (FSL form) has been exhibited as ExPW8/B.
11. PW9 ASI M. Baxla Malkhana Incharge has inter alia deposed about the deposit of the case property/jamatalashi articles with the malkhana on various dates and has also proved the relevant entries thereof in the malkhana register.
12. PW13 Sh. Raj Singh, Clerk, State transport Department has deposed that as per records the motor cycle bearing no. DL11S 2082 was registered in the name of Ali Hassan. The copy of registration number and the vehicle particulars has been exhibited as ExPW13/A.
13. PW14 Sh. Subhash Tandon, ACP has inter alia deposed that on 5/8/2011 Insp. Attar Singh came to his office and presented DD no. 26 regarding secret FIR No. 47/2011 PS Special Cell Page 12 of 41 State vs. Nabi Hassan and ors. SC No. 43/11 information. DD No. 26 has been exhibited as ExPW5/A. This witness has corroborated the version of PW5 regarding receiving and submitting of reports u/s 57 NDPS Act, DDs and disclosure statements of accused before him and has also identified his signature on the abovesaid documents.
14. PW15 SI Praveen Kumar is the second investigating officer of the present case who has deposed that on reaching the spot he had met SI Avinash and he had produced before him the accused persons Nabi Hassan and Gulsher @ Sheru and documents prepared by him. As per this witness he had thereafter prepared the site plan Ex.PW15/A. Non recovery memo of motor cycle and seizure memo of motor cycle have been exhibited as Ex.PW7/C and Ex.PW7/B respectively. According to this witness he had arrested accused Gulsher @ Sheru and Nabi Hassan vide arrest memos, Ex.PW7/D and Ex.PW7/G and conducted personal search of accused persons vide Ex.PW7/E and Ex.PW7/H. This witness has further deposed that thereafter he had interrogated the accused persons and pursuant to disclosure made by accused Nabi Hassan and Gulsher @ Sheru, he along with PW6 HC Rajbir and PW10 ASI Raj Singh and other police officials had reached the Jhanda chowk, Bawana J.J. Colony from where accused Mohd. Alam was apprehended on the pointing of accused Nabi Hassan and recovery was effected from him. They all have deposed on similar lines and have reiterated more or less the assertions made in the charge sheet. The notice issued to the accused Mohd. Alam u/s 50 of the NDPS Act has been exhibited as Ex.PW6/A FIR No. 47/2011 PS Special Cell Page 13 of 41 State vs. Nabi Hassan and ors. SC No. 43/11 and the refusal of accused persons at point X to X1 on the notice. The seizure memo prepared with respect to the recovery from the accused Mohd. Alam has been exhibited as ExPW6/B. Arrest memo, personal search memo, body inspection memo and disclosure statement of accused Mohd. Alam have been exhibited as ExPW6/C, ExPW6/D, ExPW15/D and ExPW15/E respectively. Special Report u/s 57 of NDPS Act has been exhibited as ExPW15/F. According to this witness, thereafter in pursuant to supplementary disclosure made by accused Nabi Hassan, he along with PW16 SI Avinash, PW10 HC Raj Singh, PW3 HC Hawa Singh and other police officials and accused Nabi Hassan had reached at the house of accused Nabi Hassan at H.No. 18/6 Top floor, Parwana Road, Govindpura, Delhi from where recovery was effected. Seizure memo with respect to the recovery from the house of accused Nabi Hassan and report u/s 57 NDPS Act have been exhibited as ExPW10/B and ExPW15/G respectively.
This witness has further deposed that thereafter in pursuant to disclosure made by accused Gulsher @ Sheru, PW15 along PW2 ASI Ranjeet Singh, PW12 ASI Prabodh and PW11 HC Radha Kishan and other police officials and accused Gulsher @ Sheru had reached at the house of accused Mohd. Jilani at J.J. Colony, Bawana from where accused Mohd. Jilani was arrested on the pointing of accused Gulsher @ Sheru and recovery was effected from him. They have deposed on similar lines and have reiterated more or less the assertions made in the charge sheet. The notice issued to the FIR No. 47/2011 PS Special Cell Page 14 of 41 State vs. Nabi Hassan and ors. SC No. 43/11 accused Mohd. Jilani u/s 50 of the NDPS Act has been exhibited as Ex.PW12/C and the refusal of accused has been exhibited as ExPW11/A. The seizure memo prepared with respect to the recovery effected from the accused Mohd. Jilani has been exhibited as ExPW11/B. Arrest memo, personal search memo, body inspection memo and disclosure statement of accused Mohd. Jilani have been exhibited as ExPW11/C, ExPW11/D, ExPW15/H and ExPW11/E respectively. Special Report u/s 57 of NDPS Act has been exhibited as ExPW15/I. PW12 ASI Prabodh Kumar has further deposed that on 09/08/2011 on the directions of IO, he had gone to PS Special Cell, Lodhi Colony and had taken three pullandas sealed with the seal of ASY and RSS along with three FSL forms from MHC(M) and had got the same deposited with FSL, Rohini, obtained receipt and handed over the same to MHC(M).
15. PW17 Inspector R.S. Sehrawat has interalia deposed that in the intervening night of 5/6 August, 2011, he was posted as SHO, PS Special Cell and on that day at about 12:15 AM, HC Hawa Singh had produced before him, 3 pullandas, one FSL Form and one carbon copy of seizure memo. As per the deposition of this witness, he had put his initials and his seal 'RSS' on all the pullandas and the FSL forms and then got the said property deposited in the Malkhana. He has further deposed that on the same day at about 5:00 PM SI Praveen had produced before him, three pullandas, one FSL Form and one carbon copies of seizure memo. As per the deposition of this witness, he had put his initials and his seal 'RSS' on all the pullandas and the FSL form and had FIR No. 47/2011 PS Special Cell Page 15 of 41 State vs. Nabi Hassan and ors. SC No. 43/11 then got the said property deposited in the Malkhana. According to this witness, on 07/08/2011 at about 07:30 PM SI Praveen Kumar had produced before him, 3 sealed pullandas, one FSL Form and one carbon copy of seizure memo. As per the deposition of this witness, he had put his initials and his seal 'RSS' on all the pullandas and the FSL form and had then got the said property deposited in the Malkhana. According to this witness, on 10/08/2011 at about 02:00 PM SI Praveen Kumar had produced before him, 3 sealed pullandas, one FSL Form and one carbon copy of seizure memo. As per the deposition of this witness, he had put his initials and his seal 'RSS' on all the pullandas and the FSL form and had then got the said property deposited in the Malkhana. The DD entries made by this witness in register no. 19 have been duly exhibited during his testimony as Ex.PW1/E to Ex.PW1/H.
16. The aforesaid incriminating evidence was put to the accused persons and their statements were recorded u/s 313 Cr.PC. All the accused persons in their statements u/s 313 Cr.PC have taken a defence that they have been falsely implicated in this case and that no contraband had been recovered from their possession or at their instance at any point of time.
17. In particular accused Nabi Hassan has stated that before his arrest in the present case he used to run his own factory of readymade jeans at Mustafabad, Nehru Vihar, Delhi. On 5/8/2011 at about 12:0012:30 in the afternoon he had left his factory on his bike to go to Gandhi Nargar. When he reached near a wine shop Shastri Park, three persons signaled him to stop. When he stopped his vehicle the said persons introduced themselves as police officials of Special FIR No. 47/2011 PS Special Cell Page 16 of 41 State vs. Nabi Hassan and ors. SC No. 43/11 Cell and told him to show them the papers of his bike. He showed them the RC and the insurance papers and on their asking informed them that the bike was registered in the name of his father. They then told him that he needs to accompany them to their office. When he asked them the reason for the same they told him that they will tell him the reason once they reach the office. They then made him sit in a Omni vehicle and took him to an office and falsely implicated in this case. He categorically state that no heroin was recovered from him nor did he conspire with the coaccused persons in this case. He did not know Gulsher and Mohd. Alam, Lalu @ Langra, Mohd. Jilani at all. He came to know their names only after he was arrested in this case. During his stay in the Tihar Jail, an advocate from the Legal Cell Tihar Jail met him and when he narrated them the facts of his case, they advised him to file applications under the RTI Act to inquire about the duty of police officials/traffic policemen at Mojpur Chowk. Pursuant to the said advice he had filed applications under the RTI Act and received replies thereto. The same has been marked as mark DA colly.
18. Accused Gulsher @ Sheru in his statement u/s 313 Cr.PC has also taken the same stand that he has been falsely implicated in this case. He has stated that before his arrest in the present case he was a bullock cart puller in Nai Bazar and used to work on a daily wage basis for a person namely Makbool. On the date of his apprehension he had unloaded some goods at Gandhi Nagar along with Makbool and thereafter was returning to his residence on foot when at about 3:30 p.m. near Yamuna Vihar HC Rajbir met him. He knew HC Rajbir FIR No. 47/2011 PS Special Cell Page 17 of 41 State vs. Nabi Hassan and ors. SC No. 43/11 for the last 56 years since he had worked as a secret informer for him when HC Rajbir was posted in Narcotic Branch of PS Geeta Colony. He had given him secret information 23 times. On the said day HC Rajbir asked him whether he knew any person by the name of Sheru. Despite his telling him that he did not know any person by the said name HC Rajbir told him to accompany him on his Yamaha motor cycle. He then took him to some office in Rohini and falsely implicated in this case. He further wish to state that he was never known by the name of Sheru. He categorically state that no heroin was recovered from him nor did he conspires with the coaccused persons in this case. He did not know Nabi Hassan, Mohd. Alam, Lalu @ Langra, Mohd. Jilani at all. He came to know their names only after he was arrested in this case.
19. Accused Mohd. Alam in his statement u/s 313 Cr.PC has deposed that before his arrest in the present case he used to sell shoes and chappals in the local market near Bawana and used to reside as a tenant in the jhuggi bearing no. C285 J.J. Colony, Bawana. On 6/8/2011 at about 8:008:15 a.m. while he was in his tenanted premises, 24 persons came in civil clothes and introduced themselves as police officials and told him to accompany them. They forcibly took him along with them. He had raised hue and cry and the nearby residents had also gathered. The said police officials took him to some office in Rohini and falsely implicated in this case. He categorically state that no contraband was recovered from him nor did he conspires with the coaccused persons in this case. He did not know Nabi Hassan, Gulsher and Mohd. Jilani at all. He FIR No. 47/2011 PS Special Cell Page 18 of 41 State vs. Nabi Hassan and ors. SC No. 43/11 came to know their names only after he was arrested in this case. He has further stated that though in the charge sheet his residence has been shown as E195, J.J. Colony, Bawana, he was not residing in the said premises at the time of his apprehension. Though the said jhuggi belongs to him, due to some financial constraints he had mortgaged the same in favour of another person. He has further stated that during 'mulakat' when his daughter came to meet him she told him that after he was forcibly picked up by the police officials she had made a call at 100 number and made a complaint. While being in jail he had written an application under the RTI Act seeking details of the said call made by his daughter. The information received by him from the Police Control Room is mark DB colly.
20. Accused Mohd. Jilani in his statement u/s 313 Cr.PC has stated that before his apprehension in the present case he used to drive a three wheeler Champion which is used for transporting goods and he used to reside along with his wife and his children at E2019 Jhuggi, J.J. Colony, Bawana Delhi. On 10/8/2011 at about 5:00 a.m. in the morning while all of them were sleeping, 10 persons in civil clothes came to their house and introduced themselves as police officials. The identity of one of them was later on revealed to him as Insp. Attar Singh. The said Inspector told him that he (Mohd. Jilani) had caused an accident with his vehicle and that he has to accompany him to the police station. Despite his stating that he had not caused any such accident the said persons forcibly took him along with them to an office near Rithala and falsely implicated in the present case. He categorically state that no heroin whatsoever was recovered FIR No. 47/2011 PS Special Cell Page 19 of 41 State vs. Nabi Hassan and ors. SC No. 43/11 from his possession nor did he conspires with the coaccused persons in this case. He did not know Nabi Hassan, Gulsher and Mohd. Jilani at all. He came to know their names after he was arrested in this case.
21. In support of their defence, these accused persons have produced 2 defence witnesses.
22. DW1 SI Surender Singh has inter alia deposed that he is posted in RTI Cell, NorthEast District as SI. An application dated 20.05.2013 from Nabi Hasson S/o Ali Hassan, Barrack no.4, Ward No.8, Central Jail No.4, Tihar, New Delhi seeking information under RTI Act was received in their office on 22.05.2013 vide RTI No. 1711/13. The information sought by the applicant related to NorthEast District was sent by post accordingly vide letter no. 3472 dated 05.06.2013 at the given address. The said witness has been cross examined by the Ld. APP for the State.
23. DW2 Ms. Seema has inter alia deposed that on 05.08.2011 at about 08.00 AM, 1012 persons entered into H.No. 325, CBlock, Bawana, JJ Colony, Delhi. They put all the ladies of the house in one room and took out her husband Saidul, her brother Manirul and her brother in law Arif at gunpoint. They started shouting as to why the door was closed. Then neighbours came and opened the door of the room. Out of the said persons, 3 persons went to H.No. 223, CBlock, Bawana, JJ Colony, Delhi and took search of rooms at ground floor and then went to the first floor and took search and apprehended Mohd. Alam, her uncle (chacha). At that time Mohd. Alam was wearing only FIR No. 47/2011 PS Special Cell Page 20 of 41 State vs. Nabi Hassan and ors. SC No. 43/11 kurta and nikkar. Her brother Manirul gave Mohd. Alam lungi to wear. The said persons began to drag Mohd. Alam alongwith them by catching hold of his neck. They followed them to enquire as to who the said persons were. They were not disclosing their identity and also did not tell as to why they were carrying Mohd. Alam with themselves. Thereafter the said persons let off her husband Saidul and her brother Manirul and took Mohd. Alam and her brother in law Mohd. Arif with them. She asked the said persons as to why they were carrying Mohd. Alam with them as he was ill. They told that they are taking them for the purpose of enquiry and thereafter they would be let off. She asked them whether they were from police station however they did not tell her anything and said that she would come to know things later on. She called police on 100 number from the mobile of her brother, Guddu after the said persons left. At that time Guddu was working in Noida and had come to see them as it was holiday on account of Ramzan. She does not remember the number however tell it as she has noted it down. The number is 7503226197. Thereafter her brother in law Arif was also let off but her uncle Mohd. Alam was not let off.
24. After the conclusion of defence evidence, final arguments have been advanced by Ld. APP for the State, Sh. Sanjeev Kumar, Ld. Senior Advocate with Sh. S.K. Santoshi, Advocate for accused Nabi Hassan, Sh. R.C. Sharma, Advocate for accused Gulsher @ Sheru, Sh. Arvind Kumar, Advocate for accused Mohd. Alam and Sh. S.A. Rajput for accused Mohd. Jilani. Certain points were commonly argued by all the Ld. Counsels for the defence and some FIR No. 47/2011 PS Special Cell Page 21 of 41 State vs. Nabi Hassan and ors. SC No. 43/11 arguments were stressed by Ld. Defence counsels individually.
25. It is argued by Ld. Counsel for accused Nabi Hassan that this case revolves around one person namely Lalu @ Langra resident of Kanpur who as per the case of the prosecution was supplying heroin with the help of Nabi Hassan and Gulsher @ Sheru in Delhi and nearby areas of Delhi but the said Lalu @ Langra has not been arrested by the police in this case. It is further argued that PW15 SI Parveen Kumar deposed in his crossexamination that Special Cell has no record of the said Lalu @ Langra but when he was confronted with FIR No. 10/12 PS Special Cell he candidly accepted that his antecedents were available with Special Cell and he was arrested in the said case in the year 2012 itself. If Special Cell knew about his whereabouts, there is nothing on record why no action was taken against him and why he was not arrayed as an accused and it falsifies the entire case of the prosecution.
26. It is argued by all the Ld. Counsels for the defence that there has been violation of section 52 and 55 of the NDPS Act in the present case. This argument has been built mainly on two grounds:
(a) As per the case of the prosecution, the parcels were sealed at the spot with the seal of ASY on 05.08.2011, with the seal of PK on 06.08.2011 and 07.08.2011 and with the seal of BKA on 10.08.2011 and on all the said four occasions Sh. R.S. Sehrawat, SHO affixed his seal of RSS when the said pullandas were brought before him and he deposited the said pullandas in the malkhana. It is argued that this sequence is not supported by the documentary evidence on record. The relevant entry of the malkhana register Ex.PW9/A, FIR No. 47/2011 PS Special Cell Page 22 of 41 State vs. Nabi Hassan and ors. SC No. 43/11 Ex.PW9/C and Ex.PW9/D shows that the said parcels were not sealed with the seal of RSS when they were deposited in malkhana. Hence it is argued that the seal of RSS was put on the said pullandas after the said pullandas were deposited in malkhana and sometime prior to sending the sample to FSL and hence it clearly shows tampering in case property.
(b) As per the case of the prosecution, accused persons after their arrest were produced before Inspector R.S. Sehrawat, SHO PS Special Cell but when he was examined in court as PW17, he did not depose before the court that the accused were produced before him.
In support of this contention Ld. Counsel for accused Nabi Hassan has relied upon certain authorities:
• Gurbaksh Singh Vs. State of Haryana 2001(1) JCC (SC) 144. • Valsala Vs. State of Kerala 1993(2) Crimes 267.
• Thandi Ram Vs. State of Haryana 2000(1) SCC 318 • Rajesh Vs. State 1989(3) Crimes 638.
27. It is further argued by Ld. Counsel for accused Nabi Hassan that he was interrogated on 05.08.2011 and 06.08.2011 but admittedly he did not disclose about concealment of drugs at his residence and as such there is strong possibility that the recovery shown from his house is afterthought and highly doubtful. It is further argued that inspite of knowing that his house would be occupied by female members of his family, no female police official was part of the raiding team and this was also against the mandate of law. Further there is nothing on record to suggest that any family member of accused Nabi FIR No. 47/2011 PS Special Cell Page 23 of 41 State vs. Nabi Hassan and ors. SC No. 43/11 Hassan was interrogated and hence it can be inferred that no narcotics was recovered from the above premises.
28. It is argued by all the Ld. Counsels for defence that no member from the general public were joined in the investigation of the entire case and hence all the recoveries are doubtful. It is argued that all the places of recovery i.e Maujpur Chowk, Jhanda Chowk and the houses of accused Nabi Hassan and Mohd. Jilani are located in crowded place but inspite of the same police has preferred not to join any public witnesses which creates doubt and it becomes all the more important, in view of the lacunas and shortcomings in the case of the prosecution.
29. It is argued by Ld. Counsel for accused Gulsher @ Sheru that admittedly nothing was recovered from him and nothing was recovered at his instance and he has been falsely implicated in this case. It is further argued that during the police remand he was taken to Bareilli, UP by the team consisting of Inspector Attar Singh but the said Inspector Attar Singh has not been cited as a witness and it shows falsity of the present case.
30. It is further argued by Ld. Counsel for accused Gulsher @ Sheru that the police did not take any search warrant before the search of the building/house of accused and hence there is clear violation of section 42 of NDPS Act. It is further argued that two respectable persons of adjoining area or the concerned area were required to join the proceedings but no such effort was made by the IO and hence there is violation of section 100 of Cr.PC. FIR No. 47/2011 PS Special Cell Page 24 of 41
State vs. Nabi Hassan and ors. SC No. 43/11
31. It is further argued by Ld. counsel for accused Gulsher @ Sheru that there is violation of section 50 of NDPS Act because PW ASI M. Baxla admitted that SHO had deposited the samples in malkhana but this fact is not mentioned in the register of malkhana.
32. Ld. Counsel for accused Mohd. Alam has pointed out the contradiction in the statement of PW6 HC Rajbir Singh and PW10 ASI Raj Singh to bring home the point that their statement is not believable and the entire recovery was foisted on the accused. It is argued that as per PW6 HC Rajbir Singh accused Mohd. Alam was wearing a cream colour Kurta and a purple lungi/tehmad whereas as per PW10 he was wearing cream colour shirt and tehmad/lungi. Further PW6 HC Rajbir did not know whether there was any police post 50 yards away from Hanuman Temple and he did not know whether the driver of the government vehicle made any entry in the log book for going to the spot and coming back. PW15 SI Parveen Kumar admitted in his crossexamination that he did not know about the previous antecedent of Lalu @ Langra but when confronted, he admitted in the same breath that he was arrested in case FIR no. 19/12 PS Special Cell and they were aware of his arrest in the said case.
33. It is further argued by Ld. counsel for accused Mohd. Alam that it is clearly unbelievable why this accused, who is alleged to be involved in many NDPS cases would choose to carry heroin weighing 350 gm with him and that too on foot and hence the entire recovery was fabricated.
FIR No. 47/2011 PS Special Cell Page 25 of 41
State vs. Nabi Hassan and ors. SC No. 43/11
34. It is argued by Ld. Counsel for accused Mohd. Jilani that there was non compliance of section 50 NDPS Act because PW6 HC Rajbir Singh has indirectly admitted in his crossexamination that at the time of arresting Mohd. Alam, IO did not explain the meaning of Gazetted Officer to him because when he was asked whether the accused was explained the meaning of gazetted officer the said witness remained silent during his deposition. Further no gazetted officer was called at the spot at the time of arrest of Mohd. Jilani inspite of the fact that there was sufficient time for the investigating agency to call such officer.
35. It is further argued by Ld. Counsel for accused Mohd. Jilani that PW14 Sh. Subhash Tondon, ACP has admitted in his crossexamination that information was not received in his presence and report u/s 57 NDPS Act was also not prepared in his presence and he did not go to the spot to join the investigation and there is nothing on record to explain why he did not go to the spot to join the investigation of this case.
36. On the other hand, Ld. APP for the State has submitted that there is complete compliance of section 42 and section 50 of NDPS Act which are mandatory in nature and all the other relevant provisions of the NDPS Act have also been complied. It is further argued that all the witnesses have deposed in detail about the recovery and proceedings conducted at the spots and in totality, the prosecution has been able to prove its case beyond reasonable doubt.
37. In the present case PW16 SI Avinash had received secret information on 5/8/2011 at about 6:15 p.m. that one person namely, Lalu @ Langra who is FIR No. 47/2011 PS Special Cell Page 26 of 41 State vs. Nabi Hassan and ors. SC No. 43/11 resident of Kanpur is supplying heroin with the help of Nabi Hassan and Gulsher @ Sheru in Delhi and nearby area of Delhi and that Gulsher @ Sheru would be coming between 8:008:30 p.m. at Mojpur Chowk with huge quantity of heroin to supply the same to Nabi Hassan and he produced the secret informer before Insp. Attar singh who further informed ACP Sh. Subhash Tandon about the said information who directed for the conduct of raid. SI Avinash lodged the information in DD no. 26 which has been produced as ExPW16/A. PW14 Sh. Subhash Tandon, ACP has corroborated the same.
38. As far as recovery of contraband from the accused persons is concerned, it is relevant here to state that there are in total four recoveries. The first recovery is dated 5/8/2011 consisting of 500 grams of heroin which was handed over by Gulsher @ Sheru to Nabi Hassan at the spot. The second recovery is dated 6/8/2011 when 350 grams of heroin was recovered from accused Mohd. Alam. The third recovery is dated 7/8/2011 when 300 grams of heroin was recovered from the residential premises of accused Nabi Hassan. The fourth and the last recovery is dated 10/8/2011 when 140 grams of heroin was recovered from accused Mohd. Jilani. The members of the raiding team with respect to the said four recoveries have described the search and seizure proceedings, in detail. The case property and the samples were sealed at the spot on all the said four occasions and were taken into possession vide recovery memos ExPW3/E, ExPW6/B, ExPW10/B and ExPW11/B respectively. FIR No. 47/2011 PS Special Cell Page 27 of 41
State vs. Nabi Hassan and ors. SC No. 43/11
39. The fact that after seizure on all the said four occasions, the case property was kept in safe custody has been proved by PW17 Inspector R.S. Sehrawat who was posted as SHO PS Special Cell at the relevant time. He has proved that he put his seal of RSS on the pullandas and the FSL form when they were produced before him and he got the same deposited with malkhana alongwith carbon copy of seizure memo on all the said occasions. The DD entries made by this witness in register no.19 have been proved as Ex.PW1/E to PW1/H. His statement is corroborated by PW9 ASI M. Baxla who was working as malkhana incharge at the relevant time and he has also proved the relevant entries in the malkhana register in this regard.
40. SI Avinash had furnished report u/s 57 NDPS Act with respect to first recovery dated 05.08.2011 and the same has been proved as Ex.PW16/D. SI Parveen Kumar had furnished report u/s 57 NDPS Act with respect to the remaining three recoveries and the same have been proved as Ex.PW15/F, Ex.PW15/G and Ex.PW15/I respectively. This is also corroborated by the testimony of PW5 SI Gyan Chand, SO to ACP Special Cell.
41. The deposition of PW2 ASI Ranjeet Singh and PW12 ASI Prabodh Kumar proves that samples drawn out from the recovered substances in proper custody were deposited with FSL, Rohini for examination and they obtained receipt of the same and handed over the same to MHCM.
42. PW4 Sh. M.L. Meena, Senior Scientific Officer, FSL Rohini has proved the report prepared by him with respect to the analysis conducted by him of the samples with respect to the first, second and third recovery and the report has FIR No. 47/2011 PS Special Cell Page 28 of 41 State vs. Nabi Hassan and ors. SC No. 43/11 been exhibited as Ex.PW4/A and he has proved that the said samples contained diacetylmorphine.
43. PW8 Dr. Lingraj Sahoo, Senior Scientific Officer, FSL Rohini has proved the report prepared by him with respect to the analysis conducted by him of the sample with respect to the fourth recovery and the report has been exhibited as Ex.PW8/A and he has proved that the said sample contained diacetylmorphine.
44. The testimony of the prosecution witnesses is trustworthy and believable and nothing has emerged in their crossexamination which cast doubt on the veracity of their statement or to impeach their creditworthiness.
45. All the accused persons have taken a defence that they have been falsely implicated in this case and on the respective dates of their apprehension, they were forcibly picked up by the police officials on one or the other pretext and falsely implicated in this case. The onus was on the accused persons to prove that they were falsely implicated by the police but in my view, they have miserably failed to do so. DW2 Ms. Seema, niece of accused Mohd. Alam is an interested witness. She has admitted in her crossexamination that she did not lodge any complaint before the police or the court when her uncle Mohd. Alam was forcibly abducted by the police from their house. Though she claimed that she had called the police at 100 number and even tried making complaint at PS Narela but no evidence in this regard has been brought on record.
46. The contention of the defence regarding non arrest of accused Lalu @ Langra in this case and hence drawing adverse inference against the prosecution has FIR No. 47/2011 PS Special Cell Page 29 of 41 State vs. Nabi Hassan and ors. SC No. 43/11 no merit. Although as per the case of the prosecution Lalu @ Langra was supplying heroin with the help of Nabi Hassan and Gulsher @ Sheru in Delhi and there was recovery of contraband from them but the mere fact that the police inspite of knowing the whereabouts of said Lalu @ Langra did not think it fit to proceed against him would not be sufficient in itself to take adverse view against the whole case of the prosecution. There could be a number of considerations for the police in this regard. The court cannot ignore the recovery of contraband from the accused persons and merely because no action was taken against Lalu @ Langra, the entire case cannot become doubtful. Hence this contention has no merit.
47. Regarding non mentioning of the seal of SHO on the pullandas in the malkhana register, it is relevant here to state that PW9 ASI M. Baxla who was working as MHCM at the relevant time has frankly admitted in his cross examination that he did not note down the actual seals which were affixed on the samples deposited with him but he merely copied the contents of the seizure memo in the malkhana register. He further gave the explanation that the mentioning of the seal of SHO in the malkhana register at the time of the deposit of pullandas in the malkhana has started only w.e.f 2012. In view of the non mentioning of the seal of SHO on the samples in the relevant entry of the malkhana register some doubt is created prima facie but as stated above, it gets expelled in view of the abovesaid explanation and also in view of the deposition of Inspector R.S. Shehrawat who has been examined as PW17 who has corroborated that he had affixed his seal on all the pullandas and FSL FIR No. 47/2011 PS Special Cell Page 30 of 41 State vs. Nabi Hassan and ors. SC No. 43/11 form. At the time of their deposition in the malkhana, FSL experts i.e. PW4 Sh. M.L. Sharma and PW8 Dr. Lingraj Sahoo have also deposed that the pullandas were duly sealed with the relevant seals when the same were received there for chemical examination. The fact of non mentioning of the seal of SHO in the relevant entries of the malkhana register can only be said to be due to negligence of the said MHCM but only due to the said reason, benefit of doubt cannot be given to the accused. The rule of law is that lapses in the investigation, unless they are material and could shift the effect of the evidence produced, alone then they assume importance. If the weight of the credible evidence led, leans towards the guilt on the standard of proof required at the criminal trial i.e. beyond reasonable doubt, such lapses have to be ignored. In the teeth of the overwhelming evidence through the testimony of witnesses which have already been discussed above, unimpeachable evidence has surfaced regarding the involvement of the accused in the commission of the offence.
48. Next contention of the defence regarding non production of the accused before PW17 Sh. R.S. Shehrawat, Inspector Special Cell, it is relevant to mention that he did not depose before the court that the accused was not produced before him. In crossexamination he admitted that he did not take any part in the investigation of this case and he did not interrogate any accused cannot be construed to mean that the said witness wanted to say that the accused were never produced before him or that he did not take any part in the investigation of this case. Whatever he did in the case has been deposed by him as PW17 FIR No. 47/2011 PS Special Cell Page 31 of 41 State vs. Nabi Hassan and ors. SC No. 43/11 and other than that, he did not play any other role in the investigation of this case. This is the only meaning which can be derived when he said in his cross examination "I did not take any part in the investigation of this case". Mere fact that he did not interrogate any accused, cannot be construed to mean that the accused was not produced before him and hence this contention also has no merit. The authorities relied upon by Ld. Counsel for defence are clearly distinguishable because they are on different points.
49. Recovery of 300 gm of heroin from the house of accused Nabi Hassan cannot be disbelieved only on the ground that he was interrogated on 05.08.2011 and 06.08.2011 also but he did not disclose about the concealment of drugs at his residence. As stated above, the testimony of the recovery witnesses has been held to be reliable and on the said ground only, the said recovery cannot be said to be afterthought. Regarding the plea that there was no female police official in the raiding team, it is stated that there is no rule that when residence of any person is to be searched/raided where there is possibility of presence of ladies, lady police officer has to be included in the raiding team.
50. Regarding the plea of non joining of any member from the general public at the time of search and seizure proceedings, it is now fairly well settled that merely because independent witnesses were not joined in the investigation, it would not render the testimony of the police officials as untrustworthy. If the testimony of the police officials is found to be trustworthy, in such circumstances, it can be acted upon even in the absence of independent FIR No. 47/2011 PS Special Cell Page 32 of 41 State vs. Nabi Hassan and ors. SC No. 43/11 witnesses. It was so held by Hon'ble Supreme Court in M. Prabhulal Vs. Assistant Director of Revenue Intelligence (2003) 3JCC 1631. In the present case, the testimony of the recovery witnesses has been held to be reliable and trustworthy and in view of the same, non inclusion of public witnesses in the investigation in itself does not make the case of the prosecution doubtful. Moreover, it is noticed that members of public are reluctant to join the investigation and come forward and depose, especially in criminal trial for various reasons. In the case of State of A.P. Vs S. Rayappa & Ors. (2006) 4 SCC 512. Hon'ble Supreme Court commented upon the reason for reluctance of public persons to join as witness in criminal cases. In para No.7 of the report, it was observed as under: "On the contrary it is now almost become a fashion that the public is reluctant to appear and depose before the Court especially in criminal cases because varied reasons. Criminal cases are kept dragging for years to come and the witnesses are harassed a lot. They are being threatened, intimidating and at the top of all they subjected to lengthy cross examination."
51. Accused Gulsher @ Sheru was taken to Bareilli, Up during his police remand by the team of police officials consisting of Inspector Attar Singh but the mere fact that the said Inspector Attar Singh has not been cited as witness, it would not prove that the case of the prosecution is false. Nothing was recovered from this accused during his police remand and hence there may not have been any necessity for the investigating agency to cite him as a witness. FIR No. 47/2011 PS Special Cell Page 33 of 41
State vs. Nabi Hassan and ors. SC No. 43/11
52. The contention of Ld. Counsel for accused Gulsher @ Sheru regarding violation of section 42 NDPS Act as they did not obtain any search warrant before the search of building/house of the accused has also no merit. Search warrant or authorization is required only when any building, conveyance or enclosed place is to be searched between sunset and sunrise. No search warrant/authorization is required when such place is to be searched between sunrise to sunset. The defence has not alleged that any building /house of the accused was searched by the police between sunset and sunrise and hence no such authorization is required in the case.
53. Next argument by Ld. Counsel for accused Gulsher @ Sheru regarding violation of section 50 NDPS Act has also no merit. Section 50 NDPS Act has nothing to do with the procedure regarding deposit of sample in the malkhana. The defence cannot allege violation of section 50 NDPS Act on the basis of anything said by ASI M. Baxla, MHCM in his deposition.
54. The contradictions pointed out by Ld. Counsel for accused Mohd. Alam between the statement of PW6 HC Rajbir Singh and PW10 ASI Raj Singh are not material contradictions at all and the same do not go to the root of the matter and do not make the case of the prosecution doubtful.
55. Next argument of Ld. Counsel for accused Mohd. Alam that it is clearly unbelievable why this accused, who is alleged to be involved in many NDPS cases would choose to carry heroin weighing 350 gm with him and that too on foot has clearly no merit on the face of it.
FIR No. 47/2011 PS Special Cell Page 34 of 41
State vs. Nabi Hassan and ors. SC No. 43/11
56. The argument of Ld. Counsel for accused Mohd. Jilani regarding non compliance of section 50 NDPS Act has also no merit. The court has to go through and appreciate the testimony of all the relevant witnesses and mere fact that PW6 HC Rajbir Singh remained silent in court when he was asked whether at the time of arresting Mohd. Alam he was explained the meaning of gazetted officer is not material. Other recovery witnesses have clearly deposed that the accused was explained about his legal rights to be searched in the presence of gazetted officer or a magistrate. When the accused refused to avail the said offer, there was no question of calling any Gazetted Officer or a Magistrate at the spot by the investigating agency.
57. Next argument of Ld. Counsel for accused Mohd. Jilani regarding non joining of the investigation by ACP Sh. Subhash Tondon has also no merit because when the accused had refused to avail the said offer to be searched in the presence of Gazetted Officer or a Magistrate, it was not mandatory for him to go to the spot. Regarding other aspects, he has already deposed as a witness.
58. In view of the discussion made above, prosecution has been able to prove beyond reasonable doubt the recoveries of contraband from respective accused persons. It is proved that on 05.08.2011 accused Gulsher @ Sheru handed over a packet to Nabi Hassan which was found containing 500 gm of heroin and hence both the said accused are convicted for the offence u/s 21(c) NDPS Act with respect to said recovery. It is further proved that on 07.08.2011 heroin weighing 300 gm was recovered from the residential premises of accused Nabi Hassan and hence he is further convicted for the offence u/s 21(c) NDPS Act FIR No. 47/2011 PS Special Cell Page 35 of 41 State vs. Nabi Hassan and ors. SC No. 43/11 with respect to the said recovery.
59. It is further proved that on 06.08.2011 accused Mohd. Alam was found in possession of 350 gm of heroin and hence he is convicted for the offence u/s 21(c) of the NDPS Act with respect to the said recovery.
60. It is further proved that on 10.08.2011 accused Mohd. Jilani was found in possession of 140 gm of heroin and hence he is convicted for the offence u/s 21(b) of the NDPS Act with respect to the said recovery.
61. The accused persons have also been charged u/s 29 NDPS Act r/w section 21(c) NDPS Act for having entered into a criminal conspiracy for trafficking in heroin and recovery of the said contraband from each of them in pursuance to the said conspiracy. In my view prosecution has failed to prove the said charge. Mohd. Alam was arrested on the basis of disclosure statement of Nabi Hassan and thereafter Mohd. Jilani was arrested on the basis of disclosure statement of Gulsher @ Sheru and recovery of contraband was also effected from them but in my view, that in itself is not sufficient to prove that all the said accused had entered into criminal conspiracy for trafficking in heroin or that the accused were possessing the contraband of which recoveries were effected from them, in pursuance to any conspiracy between them. No call detail records of the accused have been filed to show that they knew each other or that they were in regular touch with each other. Except the apprehension of accused Nabi Hassan and Gulsher @ Sheru at the spot and thereafter arrest of accused Mohd. Alam and Mohd. Jilani on the basis of disclosure statement of coaccused Nabi Hassan and Gulsher @ Sheru and the recovery of respective FIR No. 47/2011 PS Special Cell Page 36 of 41 State vs. Nabi Hassan and ors. SC No. 43/11 contraband from them there is no other material to infer criminal conspiracy between them and hence prosecution has miserably failed to prove the said charge under section 29 NDPS Act and hence the accused are acquitted for the said charge.
62. Bond u/s 437A Cr.PC has already been furnished on behalf of all the accused persons.
63. Let the accused be heard on the point of sentence separately.
Announced in open Court
on this 11th day of February, 2015 (Deepak Garg)
Special Judge NDPS : New Delhi
Patiala House : New Delhi
FIR No. 47/2011 PS Special Cell Page 37 of 41
State vs. Nabi Hassan and ors. SC No. 43/11
IN THE COURT OF SH. DEEPAK GARG : SPECIAL JUDGE NDPS
PATIALA HOUSE COURTS : NEW DELHI
FIR No. 47/11
PS Special Cell
State Vs. Nabi Hassan & Ors.
ORDER ON SENTENCE
Present: Sh. R.K. Bhati, Ld. SPP for the State.
All the four convicts from JC.
Defence counsels Sh. S.K. Santoshi, Sh. S.A. Rajput, Sh. R.C. Sharma and Sh. Arvind Kumar (Legal Aid Counsel).
Vide judgment dated 11.02.2016, accused Nabi Hassan was convicted u/s 21(c) NDPS Act in respect of both the recoveries dated 05.08.2011 and 07.08.2011, accused Gulsher @ Sheru was convicted u/s 21(c) NDPS Act with respect to recovery dated 05.08.2011, accused Mohd. Alam, was convicted u/s 21(c) NDPS Act with respect to recovery dated 06.08.2011 and accused Mohd. Jilani was convicted u/s 21(b) NDPS Act with respect to recovery dated 10.08.2011.
The case is today fixed for arguments on sentence to be imposed upon the convicts.
Ld. APP for the State has mainly contended that the offences under the NDPS Act are very serious in nature and the convicts in the present case should be imposed the maximum punishment and that they should not be shown any leniency in view of the gravity of the offence.
On behalf of convict Nabi Hassan, it is stated by Ld. Counsel Sh. FIR No. 47/2011 PS Special Cell Page 38 of 41
State vs. Nabi Hassan and ors. SC No. 43/11 S.K. Santoshi that he is around 30 years of age and has his wife and a son aged four years who are completely dependent upon him. It is further stated that he has three unmarried sisters and old aged father to look after and hence lenient view may be taken by the court.
Ld. Defence counsel Sh. Arvind Kumar for convict Mohd. Alam has submitted that this convict is around 62 years of age and has two daughters of marriageable age and has five children in total. It is further submitted that he is the sole bread earner of the family and hence lenient view be taken and minimum sentence be awarded to him.
Ld. Counsel Sh. R.C. Sharma for convict Gulsher @ Sheru has submitted that he is aged about 45 years and has wife and four children who are completely dependent upon him.
Ld. Counsel Sh. S.A. Rajpoot for convict Mohd. Zilani has submitted that he is aged about 40 years and has five children in total who are completely dependent upon him.
All the Ld. Counsels for the convicts have stated that none of them have any previous criminal antecedents. They have relied upon the authority of Hon'ble High Court of Delhi titled as Megh Raj & Ors. Vs. CBI 2007(1) JCC (Narcotics) 36 in support of their contention that minimum sentence be imposed on the convicts.
Sentencing is an important task in the matters of crime. One of the prime objectives of the criminal law is the imposition of appropriate, adequate, FIR No. 47/2011 PS Special Cell Page 39 of 41 State vs. Nabi Hassan and ors. SC No. 43/11 just and proportionate sentence commensurate with the nature and gravity of crime and the manner in which crime is done. There is no straight jacket formula for sentencing an accused on proof of crime. The courts have evolved certain principles: twin objective of the sentencing policy is deterrence and correction. What sentence would meet the ends of justice depends on the facts and circumstances of each case and the court must keep in mind the gravity of the crime, motive for the crime, nature of the offence and all other attendant circumstances.
In the case of State of Karnataka Vs. Krishnappa 2000 (4) SCC 75, Hon'ble Supreme Court has held with reference to sentencing by courts as under:
18. Protection of society and deterring the criminal is the avowed object of law and that is required to be achieved by imposing an appropriate sentence. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence.
Considering the facts that none of the accused has any previous criminal antecedent and the fact that all of them have their families who are dependent upon them for their livelihood, this court is of the opinion that minimum sentence be imposed on the convicts. In the above facts and circumstances, the convicts are sentenced as under:
FIR No. 47/2011 PS Special Cell Page 40 of 41
State vs. Nabi Hassan and ors. SC No. 43/11 Name of the Offence Sentence convict
U/s 21(c) NDPS Act RI for 10 years and fine of Rs.1 lac. In for the recovery default SI for 6 months.
Nabi Hassan dated 05.08.2011 U/s 21(c) NDPS Act RI for 10 years and fine of Rs.1 lac. In for the recovery default SI for 6 months.
dated 07.08.2011
Gulsher @ U/s 21(c) NDPS Act RI for 10 years and fine of Rs.1 lac. In
Sheru default SI for 6 months.
Mohd. Alam U/s 21(c) NDPS Act RI for 10 years and fine of Rs.1 lac. In
default SI for 6 months.
Mohd. Zilani U/s 21(b) NDPS Act RI for 5 years and fine of Rs. 20,000/.
In default SI for 1 month.
All the sentences shall run concurrently. Fine not paid. Benefit of section 428 Cr.PC is given to the convicts and the imprisonment already undergone by them shall be set of against the substantive period of sentence awarded to them.
Copy of the judgment and the sentence be given to the convicts free of cost. Copy of the order be sent to Jail Superintendent for compliance.
File be consigned to record room.
Announced in the open court
on this 15th day of February, 2016 (Deepak Garg)
Special Judge NDPS : New Delhi
Patiala House : New Delhi
FIR No. 47/2011 PS Special Cell Page 41 of 41