Delhi District Court
Fir No. 148/2013 State vs . Bhaskar Rao Etc. Page No.1 Of 57 on 10 July, 2020
IN THE COURT OF SH. AJAY GUPTA,
SPECIAL JUDGE (NDPS)
KARKARDOOMA COURTS, DELHI
S.C.No. 1207/2016
FIR No.148/2013
U/s 20/25/29 NDPS Act
PS Crime Branch
State
Versus
(1) Bhaskar Rao
S/o Sh.Satyanarayan
Village & P.O. Ramavarappadu
PS Patamata, Vijayawada City
District Krishana (A.P.)
(2) T.Kumar
S/o Sh. Tangvel
Village Sathaputhur
PS Thiyagadurugm
District Villuputam (AP)
...........Accused Persons
Date of Institution: 17.01.2014
Reserved for Judgment on : 30.06.2020.
Judgment pronounced on: 10.07.2020
JUDGMENT
1. The prosecution case in brief is that on 30.08.2013 at about 11.45 p.m., a secret informer came to Narcotics Cell, Shakarpur and gave information to SI Satyawan that Nagraj r/o FIR No. 148/2013 State Vs. Bhaskar Rao etc. Page No.1 of 57 Tamilnadu and Prashant Kole r/o Bankura, West Bengal used to bring ganja in trucks from Andhra Pradesh and store in a godown in Gazipur Dairy Farm and they both supply the same in wholesale and that truck driver Bhaskar Rao, one Tamilian T. Kumar help them in this business. It was also informed that driver Bhaskar Rao and T. Kumar would come in between 1.15 a.m to 1.45 a.m in gali no.5 near Dharamkanta, Gazipur Dairy Farm, Delhi in Eicher Canter bearing No. AP 16 TB 6956 after loading ganja in huge quantity from Raja Mandi, Andhra Pradesh and Nagraj and Prashant Kole would meet them at Dharamkanta and then they will keep the ganja in some godown and if raided, they can be caught with ganja. SI Satyawan got himself satisfied with the information and produced the secret informer before Sh. Vivek Pathak, Inspector Narcotics in his office at about 12.05 a.m. Inspector made enquiries from the informer. After enquiries, SHO informed the ACP, N&CP about the secret information through telephone. SI Satyawan got recorded the information in DD no.34, in compliance of section 42 of NDPS Act and produced the same before Insp. Vivek Pathak. Inspector Vivek Pathak directed SI Satyawan to conduct the raid. It is further the case of the prosecution that SI Satyawan formed a raiding party consisting of HC Satbir, HC Bharat Singh, Ct. Sohan Pal and Ct. Omprakash and they were apprised of the secret information. Investigation Officer, SI Satyawan alongwith secret informer and other members of raiding party, after taking IO bag, field testing kit and spring weighing scale left the PS vide DD no.35 in vehicle no. FIR No. 148/2013 State Vs. Bhaskar Rao etc. Page No.2 of 57 DL1CM 4228 being driven by HC Abdul Hakim and reached at the spot at about 1.15 a.m. The vehicle was parked near Dharamkanta. The members of the raiding team took their position at the spot at about 1.20 a.m. IO/SI Satyawan took the position alongwith secret informer at the corner of the street and other staff was deputed with the radius of 10 meters and waited for the canter. It is further the case of the prosecution that at about 1.25 a.m, one Eicher Canter no.AP 16TB 6956 came from the side of Gazipur flyover and it was parked at the corner of Gali no.5. From both the doors/gates of canter one person got down from each side. The secret informer identified the person who got down from driver seat as Bhaskar Rao and the person who got down from another gate/door as T. Kumar and after identification, the secret informer left the spot. Both the said person stood behind the truck and started talking. In the meantime, one person came from the side of Gazipur Shamshan ghat side and after seeing the truck in the gali, stood at the corner towards flyover/subway of Dharamkanta. The secret informer identified him as Prashant Kole Bengali. The said person talked for about 23 minutes on mobile and thereafter, he went to both the persons standing near the truck. They all talked and started waiting for someone. They waited for about 5 minutes and suddenly started going in the gali with fast steps. IO/SI Satyawan alongwith raiding team followed them and then both the persons, who came in the truck started running in the gali but they were apprehended at the distance of about 50 meters but the third person succeeded to run FIR No. 148/2013 State Vs. Bhaskar Rao etc. Page No.3 of 57 away by taking the benefit of darkness. Both the accused were brought to the canter truck. Introduction of raiding party was given to them. The government vehicle was called at the spot. On enquiry, the name of the person who got down from the driver seat was revealed as Bhaskar Rao and the name of the person who got down from the other side of the canter truck was revealed as T. Kumar. Both the accused were apprised about the secret information and their legal rights. A notice u/s 50 NDPS Act was prepared and copies of the same were served upon both the accused. The accused persons being illiterate were read over the notice and they were also told about the meaning of Gazetted Officer. After understanding about the legal rights, accused persons refused to avail the same. The refusal of the accused persons were recorded on the notices u/s 50 NDPS Act and accused persons signed the same. Investigating Officer requested 45 rickshaw pullers to join the investigation after telling them about the case but they left away without telling their names and addresses. At the time of leaving the PS, SI Satyawan requested 45 passersby and as well as rickshawpullars to join the raiding party but none joined. It is further the case of the prosecution that due to bad weather and since there was no light arrangement, at about 2.30 a.m., both the accused alongwith Eicher Canter truck were brought behind the premises of PS Shakarpur. The personal search of accused Bhaskar Rao and T. Kumar were conducted but no contraband was recovered from them. Thereafter, the vehicle canter truck bearing no. AP 16TB 6956 was searched. The vehicle FIR No. 148/2013 State Vs. Bhaskar Rao etc. Page No.4 of 57 was found covered with tirpal which was removed. Weighty kattas were found inside the truck. All the kattas were brought down and kept outside the vehicle. On counting, total 130 kattas were found. On checking, 85 kattas were found containing lemons and 45 kattas were found containing churi (fodder for animals). Below the said kattas, one yellow colour polythene layer was found. The said yellow colour polythene was removed. Below the said polythene, 75 boras were found which were also brought down. Each bora was checked after untying the sutli and in the big polythene of blue colour, nine small polythene thellys(polythenes) were found. On checking the said nine thellys, green leafy vegetative material with seeds was found which was smelt and it was found to be ganja. All the nine blue colour polythenes were weighed separately on spring weighing scale and each was found to be 21 Kgs and total 1575 Kgs ganja was recovered. The recovered boras were given Mark as A1 to A25, B1 to B25 and C1 to C25. From Mark A1 to A25, some ganja was taken randomly from one thely out of nine and two samples of total 250 grams sample each were prepared after keeping them in a transparent thellys. Pullandas were prepared and given Mark AX and AY. Similarly, samples were drawn from mark B1 to B25 and C1 to C25 and pullandas of samples were prepared which were given Mark BX and BY and CX and CY. The remaining contraband was kept in the same kattas and converted into pullandas and given mark A1 to A25, B1 to B25 and C1 to C25. Form FSL was filled up. All the 81 pullandas were sealed with the seal of 7A FIR No. 148/2013 State Vs. Bhaskar Rao etc. Page No.5 of 57 PS NB DELHI and same seal was also affixed on FSL form and seal after use was handed over to HC Satbir. All the pullandas were seized. Thereafter, IO prepared the rukka and handed over the same to Ct. Sohan Pal alongwith case property, FSL form and carbon copy of seizure memo with directions to hand over the rukka to duty officer and case property to SHO. Ct. Sohan Pal handed over the rukka to duty officer who registered the FIR and handed over the case property alongwith FSL form and carbon copy of seizure memo to SHO. SHO conducted the proceedings u/s 55 NDPS Act and got deposited the case property in the malkhana through MHCM. Further investigation was entrusted to ASI Rajveer who reached at the spot and prepared the site plan at the instance of SI Satyawan. Both the accused were arrested. Personal search of the accused persons was conducted and their disclosure statements were recorded. Accused T Kumar disclosed the name of source of supply of ganja as Shanker and the names of helping hand as Nagraj and Prashant Kole@ Bengali. Accused T Kumar pointed out the godown bearing no.C33, Gali no.5 Gazipur and disclosed that he alongwith his associates Bhaskar Rao, Nagraj and Prashant Kole used to keep the ganja in the said godown whenever received the same. Pointing out memo was prepared. ASI Rajveer Singh seized the truck bearing no. AP 16TB 6956 alongwith documents. The truck was got deposited in the malkhana. Both the accused were brought to PS and produced before the SHO/Insp. Vivek Pathak who got satisfied about the arrest of both the accused. ASI Rajbir prepared the report FIR No. 148/2013 State Vs. Bhaskar Rao etc. Page No.6 of 57 u/s 57 NDPS Act regarding arrest of accused persons and sent the same to SHO who forwarded the same to senior officer. During investigation address mentioned on the bilty was searched which was found to be wrong. Accused persons were produced before the Court and accused T Kumar was taken on one day Police custody remand and accused Bhaskar Rao was taken on 9 days police custody remand. Accused T Kumar disclosed in his supplementary disclosure statement that his associate Nagraj used to talk to him on his recovered mobile no. 8940745278 from mobile no. 9159871042 and 9677489776 for the deal of ganja and he also had another mobile no. 8098388044. Accused T Kumar pointed out the house no.107 block no.29 as same belongs to Nagraj but he could not be traced. Accused T Kumar was remanded to JC. The lemons and fodder were sold after taking permission from the Court. Further investigation was entrusted to SI Satyawan. In the supplementary disclosure statement, accused Bhaskar Rao disclosed the name of source of supply as Ghantashrinu besides Shankar who used to talk for the deal of ganja. The analysis of CDRs of mobiles recovered from accused T Kumar was made and it was found that on the intervening night of 30/31.08.2013, he had come via Ballabhgarh, Mohan Cooperative, Kalindi Colony and then reached at Gazipur and on analysis of CDRs of Bhaskar Rao it was found that he reached Gazipur on 30/31.08.2013 through Maharashtra, Madhya Pradesh, Faridabad (Haryana). The papers of the truck were found to be genuine on verification and the name of the owner was FIR No. 148/2013 State Vs. Bhaskar Rao etc. Page No.7 of 57 revealed as Vijaykumar Rao who is the son of accused Bhaskar Rao. Enquiry was made from him and he stated that he does not know anything about the job of ganja supply. Accused Bhaskar Rao pointed out the house of Ghantashreenu. He was searched but could not be traced. Copy of the notice was pasted at his house. On the basis of ownership of mobile of Shanker his address was revealed but it was found to be wrong. Thereafter, accused Bhaskar Rao was produced before the court. The sample ganja Mark AX, BX and CX alongwith FSL form were sent to FSL on 05.09.2013 vide RC no.294/21 through HC Mahesh Kumar. The godown owner Dilshad and Sunder Singh to whom the godown was given on rent, were joined in the investigation and statement of Dilshad was recorded. Statement of witness Sunder Singh was also recorded u/s 164 Cr.P.C. Ghanta Sreenu, an associate of accused persons was got declared a Proclaimed Offender. Result of FSL was received and after completion of investigation, chargesheet was filed.
2. Cognizance of the offence was taken. Copies of documents were supplied to accused persons. Charge u/s 29 NDPS Act was framed against both the accused. Accused Bhaskar Rao was charged u/s 20(b)(ii)(C) of NDPS Act and 25 NDPS Act and on 31.01.2020 charge u/s 20(b) (ii)(C) NDPS Act was also framed against accused T Kumar. Accused Bhaskar Rao also absconded during trial and hence, he was declared a P.O and thus, additional charge u/s 174A IPC has also been framed against him. Both the FIR No. 148/2013 State Vs. Bhaskar Rao etc. Page No.8 of 57 accused persons pleaded not guilty.
3. In order to prove its case, prosecution examined 17 witnesses. PW1 is HC Sushil Kumar. He is the FIR recorder. He received rukka through Ct. Sohan Pal and recorded FIR Ex.PW1/A. He made endorsement on rukka Ex.PW1/B.
4. PW2 is Ct. Sohan Pal. PW3 is HC Satyabir Singh.
PW16 is Insp. Satyawan. They are the witnesses of arrest and recovery. Their testimonies are more or less the same as stated in para '1' of the Judgment and therefore, are not being repeated for the sake of brevity.
5. PW4 is HC Jag Narayan. He is the MHCM. He deposed that on 31.08.2013, Insp. Padam Singh Rana called him with register no.19. Inspector produced six cloth pullandas mark AX, AY, BX, BY, CX and CY and 75 plastic kattas Mark A1 to A25, B1 to B25 and C1 to C25 sealed with the seal of 7APS NB DELHI and PSR with carbon copy of seizure memo and he deposited the same in the Malkhana vide entry no. 1884 Ex.PW4/A and SHO also recorded DD no.21. He also deposed that at about 8.15 p.m., ASI Rajbir deposited one Eicher Canter no. AP16TB 6956 alongwith key and personal search articles of accused vide entry no.1885 Ex.PW4/B. On 03.09.2013, ASI Rajbir Singh deposited amount of Rs.5050/ in the court. On 05.09.2013, he FIR No. 148/2013 State Vs. Bhaskar Rao etc. Page No.9 of 57 handed over the sealed parcels mark AX, BX and CX for deposit in the FSL vide RC no.294/21 Ex.PW4/C and copy of acknowledgment is Ex.PW4/D.
6. PW5 is ASI Mahesh Kumar. On 05.09.2013, he took the samples Mark AX, BX and CX to FSL Rohini and deposited the same there vide RC no.294/21, copy of RC is Ex.PW4/C and acknowledgment is Ex.PW4/D.
7. PW6 is Dilshad. He is the owner of godown situated in gali no.5 bearing no. C33. He let out the godown to Sunder Singh through dealer Baljeet Singh on rent of Rs.7000/ p.m. There was no rent agreement executed in this regard. .
8. PW7 is Surender Kumar. He is the Nodal Officer from Bharti Airtel. He brought the record of mobile no. 9677489776 i.e. CAF Ex.PW7/A alongwith ID, CDRs Ex.PW7/B, location chart Ex.PW7/C and certificate u/s 65B IE Act Ex.PW7/D. The said phone was registered in the name of Velmurugan.
9. PW8 is Israr Babu, He is the Nodal officer from Vodafone. He has produced the record of mobile no. 89440745278 which is in the name of Pandurangan. The CAF is Ex.PW8/A, CDRs Ex.PW8/B and certificate u/s 65B of IE Act is Ex.PW8/C. He has also produced the record of Mobile no. 8098388044 which is in the FIR No. 148/2013 State Vs. Bhaskar Rao etc. Page No.10 of 57 name of Subrayan , CAF is Ex.PW8/D, CDRs are Ex.PW8/E and certificate u/s 65B of IE Act is Ex.PW8/F. He also produced the records of mobile no. 9159871042 which is in the name of Suresh, the CAF is Ex.PW8/G, CDRs are Ex.PW8/H and certificate u/s 65B IE Act is Ex.PW8/J.
10. PW9 is Sh. Gajender Singh Nagar. He is the then Ld. MM. Ld. MM recorded the statement of witness Sunder Singh u/s 164 Cr.P.C. The statement is Ex.PW9/C. Entire proceedings are Ex.PW9/E (colly.)
11. PW10 is Insp. Padam Singh Rana. He deposed that Ct. Sohan Pal produced 81 sealed parcels out of which 75 boras were white cloth bags which were given Mark A1 to A25, B1 to B25 and C1 to C25 and six parcels were marked AX, AY, BX, BY and CX, CY. All the parcels were sealed with the seal of 7APS NB DELHI. FSL form and carbon copy of seizure memo were also produced. FSL form was bearing the same seal impression. PW10 put his seal of PSR on the said parcels and FSL form. He got the FIR number from duty officer and put the same on the parcels and documents. He called HC Jag Narain with register no.19 and handed over the said parcels and documents to him. MHCM deposited the said case property in the malkhana. PW10 lodged DD no.21.
FIR No. 148/2013 State Vs. Bhaskar Rao etc. Page No.11 of 57
12. PW11 is SI Rajveer Singh. He is the second IO. He reached at the spot where IO/SI Satyawan handed over the custody of accused persons to him alongwith 85 boras of lemons and 45 boras of cattle feed. He interrogated and arrested accused Bhaskar Rao vide arrest memo Ex.PW3/C and conducted his personal search. In the personal search of accused one carbon copy of notice u/s 50 NPDS Act alongwith Rs.1500/ in cash and one Nokia mobile of red colour was recovered. His personal search memo is Ex.PW11/B. The disclosure statement of accused is Ex.PW3/D. Accused T. Kumar was arrested vide memo Ex.PW3/E and his personal search was conducted. In the personal search of accused, one carbon copy of notice u/s 50 NDPS Act, Rs.700/ in cash, his driving licence and his samsung mobile were recovered. His personal search is Ex.PW11/C. The disclosure statement of accused is Ex.PW3/F. He deputed Ct. Om Prakash to look after said boras. Thereafter,he alongwith staff reached at the spot i.e. Gazipur and he prepared the site plan at the instance of SI Satyawan which is Ex.PW11/D. Accused T Kumar pointed out the godown in the closed gali and stated that the same was used for storing the ganja, Pointing out memo is Ex.PW3/G. Thereafter, they went to the crime branch. He prepared the seizure memo Ex.PW2/H of truck no. AP 16 TB 6956 alongwith documents. The copy of dharamkanta slip is Mark PW1/1, the bilty in the name of SK Saleem is Mark PW11/2, two carbon copies of way bill are Ex.PW11/3 (colly.), one blank way bill FIR No. 148/2013 State Vs. Bhaskar Rao etc. Page No.12 of 57 is Mark PW11/4. He deposited the case property in the malkhana. He produced both the accused before Insp. Vivek Pathak who found the arrest of accused persons justified. Wife of accused Bhaskar Rao and brother in law of accused T Kumar were informed about their arrest. The copy of DD no.61 is Ex.PW11/E. He prepared special report u/s 57 NDPS Act Ex.PW11/F. On 02.09.2013, PW10 interrogated accused T Kumar and recorded his supplementary disclosure statement Ex.PW11/G. Accused T Kumar pointed out the place of incident vide pointing out memo Ex.PW11/H. He further deposed that on 03.09.2013, SI Satyawan, sold the lemons and cattle feed for a sum of Rs.5050/and deposited the amount in malkhana, copy of receipt is Ex.PW11/J (Ex.PW11/K). He identified the carbon copy of the notices u/s 50 NDPS Act recovered in the personal search of accused Bhaskar Rao and T Kumar as Ex.PW3/B and Ex.PW11/X.
13. PW12 is HC Om Prakash. He is the Reader to ACP, N&CP. He received DD no.34 which he entered at sr.no.2165 Ex.PW12/B and copy of DD is Ex.PW12/A. He further deposed that on 02.09.2013, report u/s 57 NDPS Act regarding seizure of ganja was received which was entered by him at sr.no.2177 Ex.PW12/D and report is Ex.PWPW12/C. He also received report u/s 57 NDPS Act regarding arrest of accused which was diaried by him at sr.no. 2178 Ex.PW12/F and report is Ex.PW12/E. FIR No. 148/2013 State Vs. Bhaskar Rao etc. Page No.13 of 57
14. PW13 is Abdul Sattar. He produced the record of vehicle no.AP 16TB 6956. the said vehicle was originally registered in the name of Vijay Kumar Elluri. On 26.09.2017 truck was transferred in the name of Venkata Sambasiva Rao Vanguru, copy of Form 24 is Ex.PW13/A, copy of permit is Ex.PW13/A1, copy of national permit is Ex.PW13/A2, FC history is Ex.PW13/A3, certified copy of the permit is Ex.PW13/C, certified copy of B register is Ex.PW13/C1.
15. PW14 is Ajeet Singh, Alternate Nodal OfficerIdea. He produced the record of mobile no.9603948434. The copy of CAF is Ex.PW14/A, CDRs Ex.PW14/B and certificate u/s 65B IE Act is Ex.PW14/C.
16. PW15 is Insp.Vivek Pathak. He deposed about the secret information received by SI Satyawan. He deposed the secret informer was produced before him and he interrogated him and got satisfied with the information. He informed ACP Zile Singh telephonically at his residence who ordered for taking necessary action. He deposed that SI Satyawan recorded DD no.34 Ex.PW12/A(carbon copy Ex.PW15/A) which was submitted to him and he forwarded the same to ACP. Thereafter, SI Satyawan prepared a raiding party and left for the spot. At about 2.30 p.m., he was informed by the duty officer regarding registration of this case. He further deposed that at about 10.15 p.m., ASI Rajbir alongwith FIR No. 148/2013 State Vs. Bhaskar Rao etc. Page No.14 of 57 accused Bhaskar Rao and T Kumar came to his office and he interrogated the accused persons and got satisfied with their arrest. On 01.09.2013, SI Satyawan submitted special report u/s 57 NDPS Act regarding seizure of the ganja which he forwarded to ACP. The report is Ex.PW12/C. He also deposed that ASI Rajbir also submitted report u/s 57 NDPS Act regarding the arrest of accused persons which was forwarded by him to ACP. The report is Ex.PW12/E. Copy of report is Ex.PW11/F and copy of report regarding seizure is Ex.PW15/B.
17. PW17 is Vijay Kumar Elluri. He is the son of accused Bhaskar Rao. He is the registered owner of Eicher Canter no AP 16 TB 6956. The vehicle was released to him on superdari and he received the same vide memo Ex.PW17/A, superdginama is Ex.PW17/B and relevant documents are Ex.PW17/C(colly.). The photographs of the vehicles are Ex.PW17/D1 to Ex.PW17/D5.
18. Statement of accused persons were recorded u/s 313 Cr.P.C wherein both the accused have stated that they are innocent. They have not committed any offence. They have been falsely implicated in this case. Nothing was recovered from their possession or at their instance. No disclosure statement was made by them to the police. All the documents were prepared in the office of Crime Branch and their signatures were taken there forcibly. Accused persons did not lead any defence evidence.
FIR No. 148/2013 State Vs. Bhaskar Rao etc. Page No.15 of 57
19. Arguments have been heard from the Ld. Addl. PP as also from the Ld.Counsel for accused. Ld. Addl.PP has argued that the recovery witnesses examined by the prosecution have proved the recovery of 1575 Kgs of ganja from the vehicle of accused persons. All the relevant provisions of NDPS Act have been duly complied with. The witnesses have supported the prosecution case. FSL result confirms that the recovered substance was ganja. It is therefore, argued that the prosecution has been able to prove its case against the accused persons.
20. Ld. Counsels for both the accused have jointly submitted that there has not been due compliance of Section 42 and 50 NDPS Act and thus, the entire proceedings are vitiated. Ld. Counsel has further argued that there has been delay in sending the exhibits to FSL. It is further argued that it is very surprising that the weight of all the bags was equal which is not possible.. It is also submitted that first IO conducted the investigation after registration of FIR and that is not permissible. Ld. Counsel submitted that the place of apprehension is Gazipur but the proceedings were conducted behind Shakarpur Police station. It has also been argued that only 6 samples were drawn from 75 bags and that the procedure adopted by the IO is against the laid down law in the case of Basant Rai Vs. State and Joseph Vs. State of Kerala. It is requested that the accused persons may be acquitted.
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21. PW2 Ct.Sohan Pal, PW3 Satyabir and PW16 Insp. Satyawan are the three witnesses of recovery on which the prosecution case mainly rests. PW16 IO/Insp. Satyawan deposed that on 30.08.2013, at about 11.40 pm, one secret informer came and informed him that one Nagraj r/o Vilturam, Tamil Nadu and one Prashant Kohle, r/o Banpura, West Bengal are involved in the wholesale business of supplying of ganja in Delhi and Bhaskar Rao (driver) and T. Kumar also used to help them in this illegal business. The secret informer had also informed him that Bhaskar and T. Kumar would come on that day at Gali No.5 near Dharamkanta, Gazipur, Dairy Farm in Canter bearing no.AP16TB6956 between 01.15 am to 01.45 am and the said truck was loaded with huge quantity of ganja and he further informed that Nagraj and Prashant would also meet Bhaskar and T. Kumar there and ganja would be kept in some godown there and that all of them could be apprehended along with ganja, if raided. After satisfying himself, he produced the secret informer before Inspector Vivek Pathak who also interrogated the secret informer and after satisfying himself, he passed the said information to Sh. Zile Singh, ACP who had directed to conduct raid immediately. Inspector Vivek Pathak directed him to constitute a raiding party. Thereafter, PW16 lodged DD no.34 Ex.PW12/A and placed the same before Inspector Vivek Pathak who forwarded the same to ACP concerned. Thereafter, he prepared the raiding party consisting of himself, HC Bharat Singh, HC Satbir, Ct. Sohan Pal, Ct. Om Prakash, and left the spot along FIR No. 148/2013 State Vs. Bhaskar Rao etc. Page No.17 of 57 with the secret informer and driver HC Abdul Hakim in official Gypsy DL 1CM 4228. He collected IO bag, field testing kit, electronic weighing scale and spring weighing scale and lodged DD no.35 Ex.PW16/A and left the office of Narcotic Cell and reached near Gali no. 5, Gazipur, Dairy Farm via Pushta Road, Akshardhaam Mandir, NH24. On the way, he requested 45 rickshaw pullers to join the raiding party at Pushta Road and near Akshardhaam Mandir but all of them refused to join the raiding team and went away without telling their names and addresses. He briefed the raiding team members at the spot and directed them to take their position. The driver of the official Gypsy was directed to park the Gypsy near Dharamkanta. He further deposed that at about 01.25 am, one canter bearing no.AP16TB6956 came from Gazipur flyover side and it was parked at the corner of Gali no.5. Two persons, one from each gate, got down from front side of the said vehicle and the secret informer identified the person who got down from the driver seat as Bhaskar Rao and other person as T. Kumar. Both the persons started talking in a low voice after reaching on the back side of the canter. In the meantime, one person wearing white Tshirt came from Gazipur Shamshan Ghaat side and after seeing the canter, he started talking to someone on mobile phone after reaching at the corner of the Dharamkanta side. The secret informer pointed out the said persons as Prashant Kole. The said person talked for about 23 minutes on mobile phone and then went up to those two persons and started talking with them and waited for FIR No. 148/2013 State Vs. Bhaskar Rao etc. Page No.18 of 57 someone. On suspicion, he alongwith the staff/raiding team members chased them and thereafter, two persons were apprehended with the help of the raiding team members after a chase of about 50 meters in the gali and thereafter, they both were interrogated by him and their names were known as Bhaskar Rao and T. Kumar. The 3 rd offender whose name was disclosed as Prashant Kole ran away from the spot taking benefit of darkness. He further deposed that he informed the accused persons regarding the secret information and told them that as per the information they might be in possession of illegal ganja and in this regard their search is to be conducted and it was their legal right that their search can be taken in the presence of Gazetted Officer or Magistrate and that arrangement for the same can be made and that they can also take search of the raiding team members and govt. gypsy prior to their search, if they so desire but they refused for the same. He further deposed that he prepared two notices u/s 50 NDPS Act along with carbon copy and carbon copy of notice which was given to accused T. Kumar is Ex.PW2/C. Reply of accused as told by him was written and the same is Ex.PW2/D. The carbon copy of notice u/s 50 NDPS Act served upon accused Bhaskar Rao is Ex.PW2/A and reply to the notice is Ex.PW2/B. PW16 again requested 45 rickshaw pullers to join the proceedings but none agreed and left the spot without disclosing their names and addresses. He further deposed that due to bad weather, drizzling and darkness, he alongwith raiding team, both the accused, the canter/vehicle loaded came to PS Shakarpur, Narcotics FIR No. 148/2013 State Vs. Bhaskar Rao etc. Page No.19 of 57 Cell. The canter/vehicle was parked in the back side of the premises of the PS Shakarpur, Delhi. Thereafter, he took the cursory search of accused Bhaskar Rao but no drug or psychotropic substance was recovered from his search. There was an almond color tripal on the vehicle tied with a rope. He removed the tripal after untying it from the said vehicle/canter. The back side (dalla) of the vehicle was opened and he found 130 gunny bags there. All the said 130 gunny bags were taken off from the said vehicle out of which 85 gunny bags were containing lemon and 45 gunny bags were containing animal feed (churi). Under these bags, there was one more tripal of yellow color polythene. On removing the same, 75 more gunny bags were found in the vehicle. They were also taken off from the said vehicle. The mouth of all bags was tied with rope/sutli. All the 75 gunny bags were checked after removing the rope/sutli and in each of the gunny bags, there was a blue color polythene which further found containing nine small polythene/packets of blue and yellow colour containing inside the blue color polythene. On checking the said packets, each packet was found containing green leaves, branches, flowering tops alongwith seeds and on smelling the same was found to be ganja. He further deposed that each gunny bag was found to be of 21 kg each and total weight of the 75 gunny bags along with ganja was found to be 1575 kgs The first 25 gunny bags were marked as A1 to A25, next 25 gunny bags were marked as B1 to B25 and the remaining 25 gunny bags as C1 to C25. From the gunny bags A1 to A25, he had taken some portion of ganja from FIR No. 148/2013 State Vs. Bhaskar Rao etc. Page No.20 of 57 each of the nine packets from each bag and thereafter, he had drawn two samples of 250 grams each which were marked as AX and AY. Similarly, samples were taken from gunny bags B1 to B25 and C1 to C25 which were given mark BX and BY and CX and CY. The remaining ganja in each gunny bag along with blue polythene and nine packets were kept in a separate white colour plastic bag and thereafter these bags were marked as A1 to A25 and similarly, B1 and B25 and C1 and C25. He had prepared FSL form. The samples were kept in transparent polythenes and were converted into pullandas with the help of white clothes. Each samples i.e. 6 and parcels containing remaining ganja (75 boras) were sealed with seal of '7APS NB, DELHI'. FSL form was affixed with the same seal and seal after use was handed over to HC Satbir. He further deposed that all the 75 bags/pullandas containing remaining ganja along with all the six sample parcels and FSL form were taken into possession vide seizure memo Ex.PW2/G. Thereafter, he prepared the rukka Ex.PW16/B and handed over the rukka to Ct. Sohan Pal along with all the parcels, form FSL and carbon copy of seizure memo and directed him to produce the rukka to duty officer for the registration of the case and the parcels and documents to the SHO. Ct. Sohan Pal had left in Govt. vehicle and got registered the case and handed over the case property to SHO. Further investigation was conducted by ASI Rajveer and PW16 handed over the custody of accused persons and documents to him. ASI Rajveer arrested accused Bhaskar Rao vide memo already Ex.PW3/C and conducted his FIR No. 148/2013 State Vs. Bhaskar Rao etc. Page No.21 of 57 personal search vide memo Ex.PW11/B. From the personal search of accused Bhaskar Rao, one carbon copy of notice u/s 50 NDPS Act was recovered along with Rs.1500/ cash and one mobile phone bearing no.09603948434. His disclosure statement was also recorded which is Ex.PW3/D. He further deposed that he arrested accused T.Kumar vide memo Ex.PW3/E and conducted his personal search vide memo Ex.PW11/C. From the personal search of accused T. Kumar one carbon copy of notice u/s 50 NDPS Act was recovered along with Rs.700/ cash, DL and one mobile phone bearing no.08940745278. His disclosure statement was also recorded which is Ex.PW3/F. He along with ASI Rajveer and both accused again went to the spot in the Govt. vehicle where ASI Rajveer prepared the site plan at his instance. The site plan is Ex.PW11/D. Accused T. Kumar pointed out the godown where the contraband was to be kept vide memo already Ex.PW3/G. ASI Rajveer seized the canter no. AP16 TB 6956 along with documents vide seizure memo Ex.PW2/H. The case property was deposited in the Malkhana and he produced both the accused before the Inspector Vivek Pathak. On 01.09.2013, he prepared the report u/s 57 NDPS Act and the same was placed before Inspector Vivek Pathak, who forwarded the same to ACP concerned. The said report is Ex.PW12/C. Both accused persons were produced before the Court concerned and accused Bhaskar Rao was taken on PC remand for 9 days and accused T. Kumar was taken on one day PC remand. During PC remand, accused T Kumar disclosed the fact regarding FIR No. 148/2013 State Vs. Bhaskar Rao etc. Page No.22 of 57 the mobile phone used by him and by Naagraj. ASI Rajveer had recorded his supplementary disclosure statement which is Ex.PW11/G. On 02.09.2013, accused T. Kumar had pointed out one abandoned house as the same belongs to Naagraj vide pointing out memo Ex.PW11/H. PW16 again conducted the investigation and on 03.09.2013, he had analyzed the CDRs of the mobiles number which were recovered in the personal search of the accused persons. The analysis regarding mobile phone of accused Bhaskar Rao was recorded by him and the same is Ex.PW16/C. The said analysis is also accompanied with the location chart which reflects the position of the said mobile from Andhra Pradesh to Delhi during relevant time. The copy of frequency chart of mobile of accused Bhaskar Rao containing three pages is Mark A colly. and copy of CDR along with location chart of the mobile phone of accused Bhaskar Rao containing 20 pages are Mark B colly. The analysis regarding mobile phone of accused T. Kumar was recorded by him and the same is Ex.PW16/D. The said analysis is also accompanied with the location chart which reflects the position of the said mobile from Palwal, Haryana to spot during relevant time. The copy of frequency chart of mobile of accused T. Kumar containing one page is Mark C and copy of CAF of mobile no.8940745278 used by accused T. Kumar is Mark D. The copy of CDRs of the said mobile along with location chart containing 14 pages are Mark E colly. PW16 recorded disclosure statement of accused Bhaskar Rao on 03.09.2013 in which he has disclosed name of two persons namely Ghanta Shrenu FIR No. 148/2013 State Vs. Bhaskar Rao etc. Page No.23 of 57 and Shankar who had loaded the contraband at District Rajamundri Andhra Pradesh. The supplementary disclosure statement of accused Bhaskar Rao is Ex.PW16/D. During PC remand, on 05.09.2013, the documents regarding the seized vehicle were verified from Vijayawara Authority and registered owner of the vehicle was also examined. Accused Bhaskar Rao had pointed out a place in forest in Rajamundri District in the jurisdiction of PS Korukandam, Andhra Pradesh where he had loaded the ganja, the pointing out memo was prepared in this regard. He received the FSL result Ex.PW16/F. Accused Ghanta Shrenu was declared P.O. Efforts were also made in Distt. Villupuram in Tamil Nadu to trace accused Naagraj and investigation was also conducted in the village of T Kumar regarding the address mentioned on the subscription form of mobile of T. Kumar. During the course of investigation, on 08.10.2013, statement one PW Sunder Singh was got recorded u/s 164 Cr.P.C and he had obtained the copy of the statement u/s 164 Cr.P.C vide his application already Ex.PW9/F. PW2 Ct. Sohan Pal and PW3 HC Satyabir have also deposed on similar lines as per the version of PW16 Insp. Satyawan.
22. Ld. Counsel has argued that there is no compliance of of Section 42 of NPDS Act in this case. It was incumbent upon the IO to obtain search warrants but he failed to do so. Even IO is ignorant about requirement for obtaining the search warrants. Secret information was not seen by the ACP in writing and DD entry FIR No. 148/2013 State Vs. Bhaskar Rao etc. Page No.24 of 57 cannot be treated as search warrants. There was sufficient time to obtain the search warrants and even otherwise, reason to believe could have been recorded after the vehicle was stopped.
23. The mandatory nature of the above requirement of law regarding recording of "Grounds of Belief" was explained by Hon'ble Supreme Court in Karnail Singh Vs. State of Haryana VI (2009) 8 SCC 539 which is as under: "In conclusion, what is to be noticed is Abdul Rashid did not require literal compliance with the requirements of Section 42(1) and 42(2) nor did Sajan Abraham hold that the requirements of Section 42(1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as follows:
(a) The officer on receiving the information (of the nature referred to in Subsection (1) of Section 42) from any person had to record it in writing in the concerned Register and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of Clauses (a) to (d) of Section 42(1).
(b) But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or FIR No. 148/2013 State Vs. Bhaskar Rao etc. Page No.25 of 57 otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.
(c) In other words, the compliance with the requirements of Sections 42(1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is after the search, entry and seizure. The question is one of urgency and expediency.
(d) While total noncompliance of requirements of Subsections (1) and (2) of Section 42 is FIR No. 148/2013 State Vs. Bhaskar Rao etc. Page No.26 of 57 impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance of Section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or nonsending a copy of such information to the official superior forthwith, may not be treated as violation of Section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of Section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of Section 42 of the Act. Whether there is adequate or substantial compliance with Section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to Section 42 by Act 9 of 2001."
FIR No. 148/2013 State Vs. Bhaskar Rao etc. Page No.27 of 57
24. PW16 Inspector Satyawan, has stated that on 30.08.2013, at about 11.40 p.m, a secret informer came to him and informed that one Nagraj r/o Vilturam, Tamil Nadu and one Prashant Kole r/o Banpura, West Bengal were involved in the wholesale business of supplying of ganja in Delhi and Bhaskar Rao (driver) and T. Kumar also used to help them in this illegal business. The secret informer had also informed him that Bhaskar Rao and T. Kumar would come on that day in gali no.5 near Dharamkanta, Gazipur Dairy Farm in Canter bearing no. AP16TB 6956 in between 1.15 a.m to 1.45 a.m and the said truck is loaded with huge quantity of ganja and he further informed that Nagraj and Prashant would also meet Bhaskar Rao and T. Kumar there and ganja would be kept in some godown there and all of them could be apprehended,if raided. He further deposed that he produced the secret informer before Insp. Vivek Pathak who also interrogated him and satisfied himself with the information and conveyed the same to ACP Zile Singh telephonically at his residence who instructed to conduct raid. He further deposed that he reduced the information into writing vide DD no.34 Ex.PW12/A and the same was produced before Insp. Vivek Pathak, who forwarded the same to ACP concerned. In cross examination, PW16 has stated that the secret information was not noted down by him prior to production of secret informer before Insp. Vivek Pathak and secret information was noted down only in DD no.34. He did not make any effort to FIR No. 148/2013 State Vs. Bhaskar Rao etc. Page No.28 of 57 obtain the search warrant before leaving the office of Narcotic Cell. He had no discussion with ACP Zile Singh, after receipt of the information. He cannot say if the search warrant is required for the search of a building, conveyance or enclosed place on prior information after sun set or before sunrise. He voluntarily deposed that in this particular case, prompt and immediate action was required and they did not want to give opportunity to the defaulter. He is not aware that if search warrant cannot be obtained reason to believe is to be sent to the immediate superior officer within 72 hours. He volunteered that in this case, the reason to conduct immediate raid was mentioned in the information lodged vide DD no.34 that "samay rehte raid ki jaye to pakre jaa sakte hai". He had reproduced the information received by him by virtue of DD no.34 in his tehrir Ex.PW16/B. He admitted that he has not recorded any other reason for not obtaining the search warrant for conducting the search of Eicher canter. The contention of the Ld. Counsel is that no search warrant was obtained. In the present, IO/PW16 Insp. Satyawan recorded DD no.34 qua secret information. The information was received at about 11.45 p.m which was recorded at about 12.15 a.m. and the accused persons were to come at the spot in between 1.15 a.m to 1.45 a.m with heavy quantity of ganja in a truck at Gazipur. The distance between Crime branch Shakarpur and Gazipur is about 810 Kms. The ganja was brought in the truck and it was to be stored in a godown. DD no.34 finds mention that "yadi samay rehte raid ki jaye to uprokt vyaktiyo ko ganje se bhari gadi ke FIR No. 148/2013 State Vs. Bhaskar Rao etc. Page No.29 of 57 saath pakra ja sakta hai". The time gap between receipt of secret information and the time for the accused to reach at Gazipur was very short and there was every possibility of fleeing of the accused persons if the IO would have spent the time for obtaining the search warrants. Ld. Counsel submits that the secret information was only seen by the ACP and no direction was given to conduct raid. PW12 HC Om Prakash, Reader to ACP stated in cross examination that ACP concerned only made endorsement as "seen" and did not give any direction in his presence to any police official to take necessary action. PW12 has only stated that ACP has not given direction to conduct raid in his presence. He has not stated that ACP has not given directions to conduct raid at all. PW 15 Insp. Vivek Pathak clearly stated that he interrogated the secret informer and got himself satisfied from the information given by him and thereafter, he informed ACP Zile Singh telephonically at his residence who ordered for taking necessary action in this respect. Thus, it is clear that order to take action was not given in the presence of PW12. PW15 further stated that DD no.34 was lodged by SI Satyawan which was forwarded to him and he forwarded the same to ACP. The said DD was received by PW12 in the office of ACP which was seen by ACP Sh. Zile Singh. Perusal of the evidence on record reveals that the raid was conducted on the directions of ACP Sh Zile Singh. Thus, it is clear that the secret information was recorded and copy thereof was sent to the senior police officers. Recording of DD no.34 and sending the copy thereof to the senior police officer is the FIR No. 148/2013 State Vs. Bhaskar Rao etc. Page No.30 of 57 sufficient compliance of Section 42 of NDPS Act. It is clear from the facts and circumstances of present case that after receipt of secret information no sufficient time was available with PW16 IO/Insp. Satyawan to obtain the search warrants/record the reasons to believe. Thus, he was right to conduct the raid first. The submissions of Ld. Counsel in this respect is therefore, without any merit.
25. Though, no arguments have been made with regard to compliance of section 50, but I have perused the file as it is now well settled that compliance of Section 50 of NDPS Act is mandatory in nature and thus, there exists an obligation to comply with the provisions and noncompliance thereof would entail an order of acquittal in a proceeding under NDPS Act. Section 50 categorically lays down that if the search is to be conducted by an Officer duly authorized under Section 42 and the search is to be conducted under the provisions of Section 41, 42 & 43, the concerned officer does owe a duty to intimate the person to be searched that if the latter so requires, he would be taken to the nearest Gazetted Officer/Magistrate for the purpose of having the search conducted in their presence. But in the event of a situation otherwise, question of compliance with the safeguards and described under Section 50 of the Act would not arise. Coming to the facts of the present case, all the three recovery witnesses i.e. PW2, PW3 and PW16 have stated that accused persons were informed about their FIR No. 148/2013 State Vs. Bhaskar Rao etc. Page No.31 of 57 legal rights to be search in the presence of Gazetted Officer/Magistrate and carbon copy of the notice u/s 50 NDPS Act was served upon both the accused. Accused were also offered the search of the raiding party and official vehicle prior to giving their search. Both the accused refused for the offers made to them and their replies were written on the notices. The notices given to accused T Kumar is Ex.PW2/C, his reply is Ex.PW2/D and notice given to accused Bhaskar Rao is Ex.PW2/A and his reply is Ex.PW2/B. In cross examination, PW16 has stated that the notice u/s 50 NDPS Act was prepared by him. He did not make any effort to arrange any Gazetted Officer or Magistrate at the spot or to produce the accused persons before them. The notice u/s 50 NDPS Act was signed by witnesses HC Satbir and Ct. Sohanpal. No suggestion has been put to PW16 during cross examination that he has not prepared or served the notice u/s 50 NDPS Act upon the accused persons. Both the notices Ex.PW2/A and Ex.PW2/C bears the signatures of both the accused. They also appended their signatures below the notices and replies. The notices bears the signatures of witnesses namely HC Satbir and Ct. Sohan Pal. The oral evidence is in conformity with the documentary evidence. The carbon copies of the notices recovered in the personal search of both the accused have been produced and the same are Ex.PW3/A and Ex.PW3/B. It is clear from the notices that accused persons were informed that there was an information that they will bring ganja in Canter no. AP16TB 6956 and that the search of the vehicle was to FIR No. 148/2013 State Vs. Bhaskar Rao etc. Page No.32 of 57 be conducted. The notices further specify that accused persons have a legal right that if they so want, their search can be taken in the presence of Gazetted Officer or Magistrate or that arrangement for the same can be made. The notices further specify that accused have the legal right to take search of the raiding party and the police vehicle before their search. The contents of the notices are self explanatory. There is absolutely no contradiction in the evidence of the prosecution witnesses regarding service of notice u/s 50 NDPS Act or the information conveyed to the accused. No suggestion/question has been put to PW16 that notices were not served upon the accused persons. PW16 has stated that accused told that they are unable to read and write hence, the contents of notices were read over to them and thereafter, they told that they do not want to be searched before Gazetted officer or Magistrate and that the reply to the notice was written by PW16. The reply of the notices specify that accused persons have been read over and explained the notices. They have been explained the meaning of Gazetted Officer/Magistrate and after understanding the same, they chose not to get themselves searched before Gazetted Officer/Magistrate and also declined the offer of search of the members of the raiding party. They offered IO to take their search. Notice was served in Hindi and reply was also recorded in Hindi with signatures of accused underneath the reply. Hon'ble High court in the recent Judgment titled Innocent Uzoma vs. State, Crl.A FIR No. 148/2013 State Vs. Bhaskar Rao etc. Page No.33 of 57 139/2017 and CrI.M.(Bail) NO.140/2018, Judgment delivered on 14.01.2020 reiterated the law laid down by Hon'ble Supreme Court in Vijaysinh Chanduba Jadeja case regarding applicability of Section 50 NDPS Act that an option is to be given to the accused for carrying out his search before Gazetted Officer/Magistrate. Furthermore, in the present case, the recovery has been effected from the truck and not from the person of the accused persons. Thus, under these circumstances, the compliance of Section 50 NDPS Act qua the search of vehicle was not required. Reliance in this respect has been placed on State of Punjab Vs. Baljinder Singh & Anrs. (criminal Appeal nos. 156566 of 2019) (@ Out of SLP (Crl.) Nos. 56595660/2019) wherein Hon'ble Supreme Court has mentioned in para 16 that "as regards applicability of the requirements u/s 50 of the Act are concerned, it is well settled that the mandate of section 50 of the Act is confined to "personal search"
and not to search of a vehicle or a container or premises. In the present case, since the recovery was from the Canter/truck, compliance of Section 50 NDPS Act was not required to be complied with.
26. As far as compliance of Section 55 of NDPS Act is concerned, PW16 SI Satyawan stated that he prepared the rukka Ex.PW16/B and handed over the same to Ct. Sohan Pal for handing it over to Duty Officer for the registration of FIR. He also handed FIR No. 148/2013 State Vs. Bhaskar Rao etc. Page No.34 of 57 over the FSL form and copy of seizure memo to Ct.Sohan Pal with directions to hand over the rukka to duty officer. The case property was kept in the canter and it was driven to PS by HC Bharat Singh. PW2 Ct. Sohan Pal has deposed about handing over of the rukka, FSL form and seizure memo and that case property was taken in the canter. He handed over the case property to PW10 Insp. Padam Singh Rana. PW10 Insp. Padam Singh Rana received the said parcels duly sealed with the seal of 7APS NB Delhi and he put his seal of PSR on the said parcels as well as form FSL. He deposited the parcels in malkhana. The case property was deposited with PW4 HC Jagnarayan in the malkhana vide entry no.1884. He has specifically stated that the parcels were sealed with the seal of 7APS NB DELHI and PSR. He deposed that the exhibits were sent to FSL through HC Mahesh Kumar on 05.09.2013. The prosecution has examined HC Mahesh Kumar as PW5 who took the exhibits to FSL vide RC no.294/21. The statements of both the PWs (PW4 and PW5) revealed that they have specifically stated in their examinationinchief that the exhibits were not tampered and seals were intact till the same remained in their possession. Further, no suggestion has been put either to PW4 or to PW5 by the Ld.Counsel that the case property was tampered with, till it remained in their possession. PW10 Insp. Padam Singh Rana has received the parcels alongwith samples, FSL form and carbon copy of seizure memo. He put his seal of PSR and then deposited the same with PW4. The samples were received at FSL with both the seals. Thus, there is FIR No. 148/2013 State Vs. Bhaskar Rao etc. Page No.35 of 57 sufficient compliance of Section 55 of NDPS Act in this case.
27. PW16 stated that on 01.09.2013,he prepared the report u/s 57 NDPs Act and the same was put up before Insp. Vivek Pathak who forwarded the same to the ACP. The said report is Ex.PW12/C. PW11 SI Rajveer stated that on 01.09.2013, he prepared special report u/s 57 NPDS Act regarding arrest of accused persons and submitted the same to Insp. Vivek Pathak who forwarded the same to ACP. The said report is Ex.PW11/A. PW15 Insp. Vivek Pathak stated that he received the reports u/s 57 NDPS Act prepared by SI Satyawan and ASI Rajever and forwarded the same to ACP. PW12 HC Om Prakash is the reader posted in the office of ACP at the relevant time. He received the said reports u/s 57 NDPS Act, made entry in diary register at sr.no.2165 and placed the same before ACP who had seen the same and signed on it. I have perused the reports.
Ex.PW12/C is the report regarding seizure of 1575 Kgs Ganja prepared by SI Satyawan and Ex.PW12/E is the report regarding arrest of the accused persons prepared by ASI Rajveer. Both the reports have been seen and signed by ACP on 02.09.2013. In the present case, PW12 was working in the office of ACP and he received the said reports and produced before the ACP after making necessary entries in diary register. He is the witness who received the reports and deposed accordingly. Ld. Counsel stated that ACP has not been examined. In my view there was no need for the examination of ACP when his reader has been examined and FIR No. 148/2013 State Vs. Bhaskar Rao etc. Page No.36 of 57 specifically when reader (PW12) has stated in examinationinchief that he identifies the signature of Sh Zile Singh, ACP as he had signed in his presence. He identified the signature of ACP at point 'A' on both the reports. Thus, it is crystal clear that the reports u/s 57 NDPS Act were sent to the office of ACP and the same were received and seen by ACP. There is no delay in submission of the same. Thus, there is sufficient compliance of Section 57 of NDPS Act in this case.
28. Recovery has been assailed by the Ld. Counsel on the ground that no public witness was associated by the police at the time of arrest of accused and seizure of ganja. The present case solely based on the testimony of official witnesses. The court has to presume that official acts are performed in due course of law. It will not be correct approach to suspect the integrity of police officials. Their testimonies have to be appreciated like any other witness. However, it is rule of caution that Court should scrutinize the testimony of police officials with utmost care and caution to assure itself of its credibility. In case Law Munshi & Ors Vs. State 20(1981) DLT(SN) 26 it has been observed by the Hon'ble High Court that public generally hesitate to associate with police therefore, the police has to take help of person known to them or the complainant. In case Natho Singh Vs. State, AIR 1973 SC 2763 it has been held by the Hon'ble Supreme Court that evidence of police FIR No. 148/2013 State Vs. Bhaskar Rao etc. Page No.37 of 57 officials cannot be discredited in the absence of the hostility to the accused. In case State Vs. M.M.Methew, AIR 1978 SC (1571) it was held that evidence of police officials cannot be branded as highly interested only on the ground that they are interested in the success of their case. In Appa Bhai Vs. State of Gujarat AIR 1988 SC 696 it has been held that civilized people are generally insensitive when a crime is committed in their presence. They keep themselves away from the court unless it is inevitable and they try to avoid to involve themselves. In Ajmer Singh Vs. State of Haryana 2010 (2) SCR 785, the Hon'ble Supreme Court held that it is not always possible to find independent witnesses at all the places at all the times. The obligation to join public witness is not absolute. If the police officer is unable to join any public witness after genuine efforts, the recovery made by the police officer would not be vitiated. The Hon'ble Supreme Court held that in such circumstances, the Court will have to appreciate the relevant evidence to determine whether the evidence of a police officer is believable so as to place implicit reliance thereon. In the present case, after receipt of secret information at about 11.45 p.m, raiding party was constituted and raid was conducted and accused persons were apprehended at about 1.25 a.m with vehicle no. AP 16TB 6956. The place of raid is Gazipur Dairy Farm. PW16 has stated that on the way to Gazipur, he requested 45 rickshaw pullers to join the raiding party at Pushta Road, near Akshardham Mandir but all of FIR No. 148/2013 State Vs. Bhaskar Rao etc. Page No.38 of 57 them refused and went away without telling their names and addresses. At the time of serving the notice u/s 50 NDPS Act, he again requested 45 rickshaws pullers to join the proceedings but none agreed. In cross examination PW16 stated that there was no shop at the spot and only godowns were there. He has not asked any person from the godowns to join the investigation. PW2 Ct.Sohanpal stated in cross examination that spot is surrounded by the residential houses and shops. He does not know if there is Transco BSES Office. The accused persons were apprehended at about 1.25 a.m. PW16 as also witnesses PW2 and PW3 who were with PW16 have corroborated the statements of each other regarding the efforts made by PW16 to join the public witnesses. PW16 has clearly tendered the explanation regarding non joining of public witnesses that they left away without telling their names and addresses. The accused were apprehended at about 1.25 a.m. It is night time. In the instant case, there is no cogent and valid reasons to discard/suspect the testimony of the police officials who neither had prior acquaintance with the accused nor animosity with them. Accused persons had no acquaintance with any of the members of the raiding team. Both the accused persons are residents of out of Delhi. The accused persons did not give reasonable and plausible explanation about their presence on that day at the spot. Keeping in view the general reluctance on the part of the public persons to join the police investigation, it cannot be said that there was any avoidance or evasion on the part of first IO in joining independent FIR No. 148/2013 State Vs. Bhaskar Rao etc. Page No.39 of 57 witnesses. It is clear that sufficient efforts were made by the IO to join the public witnesses. No ulterior motive has been assigned to the police officials for falsely implicating the accused persons. Therefore, nonjoining of the independent public witnesses, in the factual matrix of the case, is not a circumstance to raise suspicion about the proceedings conducted by the police officials.
29. Ld. Counsel argued that there is delay in sending the samples to FSL. In the instant case, recovery was effected on 30.08.2013. PW5 ASI Mahesh stated that he took the case property to FSL on 05.09.2013 and deposited the same there. Thus, there is delay in depositing the parcels in the FSL. In the case of Ajmer Singh Vs. State of Haryana 2010 (2) SCR 785, the Hon'ble Supreme Court upheld the order of Hon'ble Delhi High Court on the issue of ignoring the delay being of 15 days and held that the statements of witnesses and the report of FSL show that sample was received in a sealed cover and there was no tampering of the sample. Similarly, in the cases of Ramesh Kumar Rajput @ Khan Vs. State of NCT of Delhi MANU/DE/0786/08 and Bilal Ahmad Vs. State 2011 III AD (Crl.) (DHC) 293, the delay of 13 days and 59 days respectively was ignored.
30. Thus, in view of the settled law, the ratio which can be drawn is that to safeguard the sample/case property from possible FIR No. 148/2013 State Vs. Bhaskar Rao etc. Page No.40 of 57 tampering, the sample should be sent to FSL at the earliest, preferably in 72 hours, however, if there is delay, onus is on the prosecution to show that there was no tampering with the case property and the sample. If the prosecution satisfies that there was no tampering, the delay is to be ignored, however, in the event of doubt, benefit has to be given to the accused.
31. In the present case, the recovered case property was sealed by PW16 with the seal of 7A PS NB Delhi and same seal was fixed on FSL form. He sent PW2 Ct. Sohanpal to Narcotic Cell for registration of FIR and case property was sent in canter driven by HC Bharat Singh. Ld. Counsel submitted that HC Bharat Singh has not been cited as witness in this case. It is an admitted fact that he is the driver of the vehicle. PW2 Ct. Sohan Pal is the main witness who took the samples and case property to Malkhana and he has been cited as witness and examined in this case. The case property was taken to PS under his supervision. Thus, the submission of Ld. Counsel that Ct.Bharat Singh has not been made as witness in this case has no merit. PW16 further stated that he prepared rukka and handed over to Ct. Sohan Pal alongwith rukka and case property was kept in the Canter (truck) with directions to hand over the same to SHO. PW10 Insp. PS Rana received the same through Ct. Sohanpal and put his seal of PSR on the parcels and FSL form. He also put FIR number on the parcels and documents and then deposited the same in malkhana. PW4 HC Jagnarayan is the then FIR No. 148/2013 State Vs. Bhaskar Rao etc. Page No.41 of 57 MHCM. He stated that SHO Insp. PS Rana deposited the case property (81 pullandas) of the present case in the malkhana duly sealed with the seal of 7A PS NB Delhi and PSR alongwith FSL form and copy of seizure memo. He further deposed that on 05.09.2013 pullandas Mark AX, BX and CX were sent to FSL through HC Mahesh Kumar vide RC no. 294/21 Ex.PW4/C. The FSL result Ex.PW16/F shows that the parcels were received in the FSL duly sealed with both the seals. Entry in malkhana register Ex.PW4/A shows that the parcels were having seals of 7APS NB Delhi and PSR at the time of deposit, FSL form was also deposited alongwith carbon copy of seizure memo in the Malkhana and entry also shows that FSL form was sent to FSL alongwith sample pullandas. Similarly, RC no.294/21 show that FSL form was sent alongwith sealed pullandas and receipts further show that FSL form was also received at FSL Rohini. Thus, the samples reached from malkhana to PS duly intact and there was no tampering at all.
32. As discussed above, the prosecution has been able to show link from the spot till arrival at FSL. The seals remained intact till the deposit of sample in Malkhana. Thus, there is no possibility of tampering of the sample. The delay pointed out by the Ld. Counsel therefore, cannot be read against the prosecution.
33. Ld. Counsel has stated that the rukka was prepared by Ct. Sohan Pal while other documents were prepared by the IO and FIR No. 148/2013 State Vs. Bhaskar Rao etc. Page No.42 of 57 that there is no explanation in this respect. He relied upon Judgment State Vs. Ramesh, 2013(2) Delhi JCC 66. PW16 IO Insp. Satyawan stated that he prepared the rukka by giving dictation to Ct. Sohanpal . The rest of the writing work was done by Insp. Satyawan at the spot. In cross examination, PW16 has also stated that the rukka was prepared by Ct. Sohanpal on his dictation as his writing was good. Perusal of the documents on record reveals that rukka is in different handwriting than other documents. In the evidence, there is sufficient explanation for writing of rukka through Ct. Sohanpal because his handwriting is fair and legible. Writing rukka by Ct. Sohanpal through dictation of PW16 does not go against the prosecution. The case law cited by the Ld. Defence counsel is distinguishable and thus, with due respect, not applicable to the present facts and circumstances of the case.
34. Ld. Counsel has also stated that log book of government vehicle has not been produced in this case and it creates doubt in the case of the prosecution. Nonproduction of log book of the government vehicle before the court is not mandatory and the case of the prosecution cannot be doubted for the same.
35. On evaluation of the testimonies of the prosecution witnesses i.e. PW2, PW3 and PW16 it is revealed that they have corroborated the statements of each other that on checking the vehicle no. AP 16TB 6956, 130 gunny bags were taken down from FIR No. 148/2013 State Vs. Bhaskar Rao etc. Page No.43 of 57 the vehicle out of which 85 gunny bags were containing lemon and 45 gunny bags were containing animal feed and under these bags, there was one more tripal of Yellow colour polythene and on removal of the same, 75 more gunny bags were found. After removing the sulti of said bags, there was a blue colour polythene which further found containing nine small polythenes/packets of blue and Yellow colour containing inside the blue colour polythene and on checking the said packets, each packet was found containing green leaves, branches, flowering tops alongwith seeds and on smelling the same was found to be ganja. On weighing, each bag was found of 21 Kgs each and total weight was found to be 1575 Kgs. Thus, total 1575 Kgs ganja was recovered from the vehicle driven by accused Bhaskar Rao in which accused T Kumar was also present. From the statements of PW2 Ct. Sohanpal, PW3 HC Satbir and PW16 Insp. Satyawan, it stood established that they remained consistent and confident in their deposition and no material infirmity or discrepancy has emerged in their testimonies. No contradiction favouring the defence of accused has surfaced from the cross examination of these witnesses. Thus, there is no reason to doubt the credibility and reliability of these witnesses. Record reveals that due procedure was followed by the Investigating Officer. PW5 ASI Mahesh deposited the sample parcel at FSL Rohini. The prosecution has also proved the arrest memo and personal search memo of accused persons by the testimony of PW11 ASI Rajveer, 2nd IO.
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36. In view of the aforesaid discussions, it stands proved that proceedings were conducted meticulously and in compliance of the provisions of the NDPS Act. Accused persons have taken the plea in their statements u/s 313 Cr.P.C that they have been falsely implicated in this case. They have no concern with the canter (truck). They have no concern with the Mobile phones. No contraband was recovered. However, they have not led any evidence in their defence to prove their innocence. They have also failed to give any reason for their false implication. Both the accused are the residents of Andhra Pradesh. They have failed to give any reason as to why they had come to Delhi on that day. They were apprehended in Delhi. It is not there case that they were brought by the police from Andhra Pradesh. Yet another question which needs answer is whether the samples were properly drawn by IO in this case?
37. As per the prosecution case, ganja contained in 75 gunny bags was recovered from vehicle No.AP 16TB 6956 being driven by accused Bhaskar Rao. PW17 Vijay Kumar Elluri stated that accused Bhaskar Rao is his father and that Eicher Canter no.AP16TB 6956 is registered in his name and that he got the same released on superdari. Thus, accused Bhaskar Rao was driving the vehicle of his son on the date of incident but he has taken false plea in his statement u/s 313 Cr.PC that he has no concern with the canter. Accused T Kumar was present in the vehicle at that time. FIR No. 148/2013 State Vs. Bhaskar Rao etc. Page No.45 of 57 The weight of each bag was found to be 21 Kgs each and thus, the total weight of recovered ganja was 1575 Kgs. PW16 Insp. Satyawan stated that first 25 gunny bags were marked A1 to A25, next 25 gunny bags were marked as B1 to B25 and next 25 gunny bags were marked C1 to C25. He further deposed that from gunny bags Mark A1 to A25, he had taken some portion of ganja from each of the nine packets from each bag and thereafter he had drawn two samples of 250 grams each which were given Mark AX and AY. Similarly, he had drawn 22 samples of 250 grams each from Mark B1 to B25 and C1 and C25 and given them Mark BX and BY, CX and CY. He kept the remaining ganja in each gunny bag alongwith blue polythene and nine packets were kept in separate white colour plastic bag, the same were already marked A1 to A25, B1 to B25 and C1 to C25. He converted the samples and remaining case property into parcels and sealed with the seal of 7APS NB Delhi. As per FSL result Ex.PW16/F, sample Mark AX was found to be 258.15 grams and Mark BX was found to be 267.91 grams, Mark CX was found to be 258.52 grams. Rest of the samples Mark AY, BY and CY have not been sent to FSL, however, the same were produced before the Court alongwith other 75 bags (Ex.P4 colly.). FSL result confirmed that Exhibit 'AX', 'BX' and 'CX' found to have contained 'ganja' (cannabis). In the case of Gaunter Edwin Kircher Vs. State of Goa, 1993 (3) SCC 145, Hon'ble Superme Court held as under: FIR No. 148/2013 State Vs. Bhaskar Rao etc. Page No.46 of 57 "If it is not practicable to send the entire quantity then sufficient quantity by way of samples from each of the packets of pieces recovered should be sent for chemical examination."
38. In the abovereferred case, where the accused were found in possession of 12 grams of charas in two pieces (5&7 grams), the Investigating Officer had sent the contraband weighing 5 grams for chemical examination. The same was found to be charas. In such situation, Hon'ble Apex Court held that the other piece could not be inferred to be charas. Accordingly, the accused was sentenced only for possession of 5 grams of charas.
39. In the case of Basant Rai Vs. State Criminal Appeal No. 909/2005, decided by the Hon'ble High Court of Delhi, the facts were that pursuant to the secret information, appellant was caught allegedly carrying 3.5 Kgs of charas in a green colour polythene bag which contained 8 smaller polythene bags having black colour substance. Two samples of 25 grams each were made after breaking charas from each of the 8 slabs. The samples were sent to FSL and it was found to be charas. The Hon'ble High Court held as under:
26. Though the settled law is that if it is not practicable to send the entire quantity then sufficient quantity by way of samples from each of the packets of pieces recovered should be sent for chemical examination. Otherwise, result thereon, FIR No. 148/2013 State Vs. Bhaskar Rao etc. Page No.47 of 57 may be doubted.
27. For example, if the 08 packets were allegedly recovered from the appellant and only two packets were having contraband substance and rest 6 packets did not have any contraband; though all may be of the same colour, when we mix the substances of all 8 packets into one or two; then definitely, the result would be of the total quantity and not of the two pieces. Therefore, the process adopted by the prosecution creates suspicion. In such a situation, as per settled law, the benefit thereof should go in favour of the accused. It does not matter the quantity. Proper procedure has to be followed, without that the results would be negative."
40. In the case of Javed A. Bhatt Vs. Union of Inida, 2007 Cri LJ 3145, decided by the Hon'ble High Court of Mumbai, it has been held as under: "In the case at hand, the prosecution did not send all the pieces either in the form of cigars or Hats for analysis but the prosecution remained satisfied only by sending some of such pieces weighing about 50 grams and therefore, applying the principle laid down by the Apex Court it has to be concluded that what the accused was found with, was only 50 grams of charas/hasis and not the entire quantity of 380 grams as contended by the prosecution and that is the inference which has got to be drawn, as drawn by the Apex Court, upon the failure of the prosecution to send all the cigars or flats found with the accused."
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41. In the matter of Joseph Vs. State of Kerala, CRA No. 755/2001 (decided on 28.01.2002), it has been observed in para no.11 that 'in the matter of preparing the sample also there has been serious violation.......... In the nature of the case, it was incumbent upon the empowered officer who makes the search and seizure to weigh the contents of the packet allegedly held by each of the accused separately and to prepare samples from each set. In the circumstances, I find that the preparation of the samples and weighment of the ganja was also done in an improper and illegal manner'.
42. PW16 stated that from the gunny bag Mark A1 to A25, he had taken some portion of ganja from each of the nine packets from each bag and thereafter he had drawn two samples of 250 grams each which were Marked as Mark AX and AY, Similarly, he had taken samples from Mark B1 to B25 and C1 to C25 and given them Mark BX, BY and CX, CY. PW16 has deposed differently to what he mentioned in the seizure memo and what is mentioned in the chargesheet, perhaps realizing his omission that he did not do the sampling in the a requisite manner. Chargesheet finds mention that the samples of ganja were drawn randomly only from one thelly out of nine thelly/packets lying in bag. Thus, in the present case also, samples were drawn after taking some parts of ganja only from one of nine small polythenes/packets of blue colour plastic FIR No. 148/2013 State Vs. Bhaskar Rao etc. Page No.49 of 57 kattas and the entire material which were given Mark AX, AY, BX, BY and CX, CY. Therefore, from the process adopted by the Investigating Officer (PW16), it is clear that he had not taken the samples from all the nine packets lying in 75 bags as he stated in his examinationinchief that he had taken some portion of ganja from each of the nine packets from each bag and thereafter, he had drawn two samples while in the chargesheet, it is mentioned that he took some ganja randomly from one thellys/small polythenes) out of nine, kept in a bag and in the seizure memo Ex.PW2/G also, it is mentioned that out of nine small thellys lying in bora, he took sample of 250 grams from one thelly randomly. Further, as per the laid down guidelines, Investigating Officer was to prepare separate samples from each packet to draw inference about the material contained in each thelly(polythene). In the instant case, IO was to draw 75x9x2 = 1350 samples but he failed to follow the guidelines in this respect and thus, the samples drawn in the present case cannot be said the representative samples of the entire quantity. Therefore, under the circumstances, it cannot be said that all the recovered kattas (75x9=675) were of ganja as it is equally possible that some may be of ganja and the other may be of some other substance. Furthermore, IO has neither given any identification to the polythene(s) from which ganja was taken for samples nor their respective weight has been mentioned. Thus, the samples drawn in the present case cannot be connected with any particular packet. In such a situation, benefit thereof goes to the accused with regard to FIR No. 148/2013 State Vs. Bhaskar Rao etc. Page No.50 of 57 the quantity of recovered ganja.
43. As per IO, samples drawn were 250 grams each. Total weight of sample 'AX' mentioned in FSL result Ex.PW16/F is 235.10 grams (without polythene). The weight of sample 'BX' is 248.7 grams (without polythene) and weight of sample of 'CX' is 234.86 grams (without polythene). The difference in weight could be because of measurement on normal scale and digital scale. Samples Mark 'AX', 'BX' and 'CX' were sent to FSL and other samples Mark 'AY', 'BY' and 'CY' were produced before the Court. Thus, considering the weight of samples AX, BX and CX as 235.10 grams, 248.7 grams and 234.86 grams, it can therefore, be said that 718.66 grams ganja was received at FSL. Since FSL result confirms that samples received by it was of ganja, but in the absence of evidence to prove that the entire 1575 Kgs., material recovered from accused persons was ganja, accused persons cannot be held guilty for the possession of 1575 Kgs. of ganja as from the sampling process drawn by the IO, it cannot be said that the samples drawn by the IO are the true representative samples of the entire quantity of 1575 Kgs ganja. However, prosecution has proved that 718.66 grams of ganja received at FSL, was recovered from the accused persons. Accused T. Kumar has not taken any specific plea that he was not present in the vehicle with accused Bhaskar Rao or that he was not aware that ganja was not loaded in the vehicle. Thus, it can be inferred that accused T. Kumar was aware about ganja being FIR No. 148/2013 State Vs. Bhaskar Rao etc. Page No.51 of 57 taken in the vehicle.
44. Charge has also been framed against both the accused in this case u/s 29 NDPS Act besides u/s 20(ii)(C) of NDPS Act and accused Bhaskar Rao has been separately charged u/s 174A IPC. It is the case of the prosecution that PW16 received secret information that Bhaskar Rao and T. Kumar would come in gali no.5 near Dharamkanta, Gazipur, in canter bearing no. AP16TB 6956 between 1.15 a.m to 1.45 a.m and the said truck is loaded with huge quantity of ganja and that Nagraj and Prashant would also meet them there and ganja would be kept in a godown. Raiding party was constituted and both the accused were apprehended. Ganja in 75 bags was recovered from the vehicle driven by accused Bhaskar Rao. Section 29 NDPS Act contemplatesPunishment for abetment and criminal conspiracy. In the present case, both the accused persons were apprehended together in the vehicle. The contraband was also in the vehicle. Conspiracy is hatched in dark. Thus, direct evidence is seldom forthcoming, however, the offence can be proved by the acts, deeds or things done by the coconspirators, thus, question would arise as to what nature of the acts, deeds and things would constitute conspiracy.
45. To bring home the charge of abetment and criminal conspiracy in terms of Sec.29 of NDPS Act., it is necessary to establish that there was an agreement between the parties for doing FIR No. 148/2013 State Vs. Bhaskar Rao etc. Page No.52 of 57 an unlawful Act. It is difficult to establish conspiracy by direct evidence. It is true that it is difficult to support the charge of conspiracy with direct evidence in every case. Considering the facts of the case, it is clear that both the accused came in the truck. They got down from the truck and identified by the secret informer. The truck in question was found loaded with ganja. One another person came at the spot and talked to both the accused persons. Both the accused were apprehended in the gali while they were going with fast steps. Both the accused are residents of Andhra Pradesh. They have failed to explain as to why they were present in Delhi on 30.08.2013. Thus, it is clear that both the accused have conspired together to commit the offence of this case as they have failed to show any reason about their presence in Delhi with the truck on 30.08.2013.
46. As far as charge u/s 25 NDPS Act.against accused Bhaskar Rao is concerned, this Court is of the view that the prosecution has failed to prove the offence under this provision. The truck in question was registered in the name of Vijay Kumar Elluri. Section 25 NDPS Act contemplates Punishment for allowing premises, etc to be used for commission of an offence - whoever, being the owner or occupier or having the control or use of any house, room, enclosure, space, place, animal or conveyance knowingly permits it to be used for the commission of by any other person of an offence punishable under any provision of this Act, FIR No. 148/2013 State Vs. Bhaskar Rao etc. Page No.53 of 57 shall be punishable with the punishment provided for that offence. In the present case, prosecution has examined PW13 Abdul Sattar who produced the record of vehicle no. AP 16TB 6956. As per record, the vehicle was registered in the name of Vijay Kumar Elluri. He further deposed that on 26.09.2017, truck was transferred in the name of Venkata Sambasiva Rao Vanguru, the relevant record is Ex.PW13/A1 to Ex.PW13/C1. PW17 Vijay Kumar Elluri is the son of accused Bhaskar Rao. He is the registered owner of the truck. However, he has not been arrayed as an accused in this case. There is no evidence that he had given his truck for the purpose of carrying ganja. Accused Bhaskar Rao in the statement of accused recorded u/s 313 Cr.P.C has stated that it is matter of record that his son was the owner of the said truck. The same vehicle was found loaded with ganja and being driven by accused Bhaskar Rao. Accused T. Kumar was accompanying accused Bhaskar Rao in the truck. Thus, it is crystal clear that vehicle in question was being used for carrying ganja by accused Bhaskar Rao himself and that he did not permit any other person to use the vehicle of his son for the commission of an offence. Therefore, charge u/s 25 NDPS Act could not be established by the prosecution against accused Bhaskar Rao.
47. As far as the charge 174A IPC is concerned, it is revealed that on 21.02.2015 accused Bhaskar Rao was granted interim bail on the ground of death of his father but thereafter, he stopped appearing before the Court. On 09.04.2015, NBWs were FIR No. 148/2013 State Vs. Bhaskar Rao etc. Page No.54 of 57 issued against him and thereafter on 15.05.2015, process u/s 82 Cr.P.C was issued. HC Mohd. Ismail executed the process u/s 82 Cr.P.C and he was examined before the Court as CW1. He deposed that on 28.05.2015, he went to execute the process u/s 82 Cr.P.C against accused Bhaskar Rao s/o Satyanarain r/o VPO Ramavarappadu PS Patamata, Vijaywada City, district Krishna (A.P) but the accused could not be traced at the aforesaid address. Statement of two persons namely, Sh. Veera Babu s/o Ram babu and Sh. Ram Babu s/o Radha Krishna Murti were also recorded. He pasted copies of the process at the gate of Ramavaram Padu, Govt. School at fish Market at Sai Baba Mandir Ramavaram Padu and at Venkamma Temple, Ramvaram Main Road. Copy of the process was also pasted at the notice board of the Court. His report is Ex.CW1/A. As per statement of CW1, he has recorded the statements of two persons of the locality namely, Veera Babu and Ram Babu with regard to his visit in the locality and none availability of accused. He also pasted the copies of the process at the gate of Ramavaram Padu, Govt. School and at Venkamma Temple as well as on the notice board of the Court. As per report Ex.CW1/A, munadi was done in loud voice and thereafter the notice was pasted at the Govt.school. CW1 also reported that no clue was found regarding accused as well as his movable/immovable property. After satisfying about the execution of process, Ld. Predecessor declared the accused as proclaimed offender on 16.10.2015. On 01.04.2019, SI Arun Sindhu appeared before the FIR No. 148/2013 State Vs. Bhaskar Rao etc. Page No.55 of 57 Court and moved an application for issuance of production warrants against accused Bhaskar Rao stating that he is lodged in jail in the case bearing CA No. 187/18 U/s 8C/20B(IIC)/28/29 NDPS Act PS NCB Hyderabad and lodged in Central Jail Rajahmundry, Andhra Pradesh. Accordingly, production warrants were issued and on 08.04.2019, accused was produced before the Court and he was taken into custody in this case. Thereafter, charge u/s 174A IPC was framed against him on 25.04.2019. Statement of CW1 Mohd. Ismail qua the execution of proceedings u/s 82 Cr.P.C is available on file. The process u/s 82 Cr.P.C has been executed upon accused as per law. Thus, accused Bhaskar Rao is held guilty u/s 174A IPC and convicted thereunder.
48. In view of the abovesaid discussions, accused Bhaskar Rao is acquitted u/s 25 NDPS Act. However, since FSL result confirms that 718.66 grams sample received by it was of ganja, but in the absence of evidence to prove that the entire recovery of 1575 Kgs from accused persons was ganja, accused persons cannot be held guilty for the possession of intermediate or commercial quantity of ganja. Thus, both the accused Bhaskar Rao and T. Kumar are held guilty under Section 20 (b) (ii) (A) of NDPS Act and section 29 NDPS Act. Accused Bhaskar Rao is separately held guilty u/s 174A IPC. Both the accused persons are convicted accordingly.
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49. In the present case, accused Ghanta Shreenu has been declared P.O. Thus, the case file be preserved with liberty to the prosecution to revive the same as and when accused Ghanta Shreenu surrenders/arrested.
50. Both the convicts are in JC. Copy of the Judgment be sent to both the convicts via email through Jail Superintendent concerned with directions to serve the copies of the Judgment upon the accused persons. A copy of the Judgment be also served upon the Ld. Counsels for the convicts through mail.
Announced in the open court on 10.07.2020 (AJAY GUPTA) Special Judge (NDPS) KKD COURTS, DELHI.
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