Delhi District Court
State vs Imran on 6 March, 2024
IN THE COURT OF SPECIAL JUDGE (NDPS),
SHAHDARA, KARKARDOOMA COURTS, DELHI
STATE VS. IMRAN
Session Case No. : 272/2017
CNR No. : DLSH010054212017
FIR No. : 494/2016
U/s : 21 of the NDPS Act, 1985
PS : Welcome
In the matter of :
State
Versus
Imran
S/o Inaam
R/o F530, Janta Colony,
Welcome, Delhi
Permanent resident of Village Dallupura,
District Muzaffar Nagar, Uttar Pradesh.
.......... Accused
Date of institution : 01.12.2017
Date when judgment reserved : 09.02.2024
Date of Judgment : 06.03.2024
JUDGMENT:
1. This is a case in which accused Imran has faced trial for commission of offence punishable under Section 21 of SC No. 272/2017 Page 1 of 45 State vs. Imran Judgment dt. 06.03.2024 the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short "the NDPS Act") on the allegation that he was found in possession of contraband i.e. heroin without any permit or licence in contravention of provisions of the NDPS Act.
2. The case of the prosecution as borne out from the chargesheet is as under: 2.1. On 14.12.2016, ASI Rajender Singh was on duty at PS Welcome and at about 8.45 pm, a secret informer came to the police station and informed him that one person, namely, Imran who deals in smack was roaming opposite Tent wala school, near kuda khatta, 66 foota road, New Jafrabad with smack in his possession and if raided, he could be apprehended along with the contraband.
2.2. ASI Rajender Singh having been satisfied himself with the information reduced the secret information vide daily diary no. 16A at 9.20 pm and produced the copy of the DD before the SHO for proceedings under Section 42 of the NDPS Act. He also produced the secret informer before the SHO who made enquiry from the secret informer and after satisfying himself with the information communicated the same to the ACP concerned telephonically and directed ASI Rajender Singh to conduct a raid.
2.3. ASI Rajender Singh constituted a raiding party comprising himself, HC Inder Singh and Ct. Deepak and SC No. 272/2017 Page 2 of 45 State vs. Imran Judgment dt. 06.03.2024 collected IO kit, field testing kit and electronic weighing machine and, thereafter, the raiding party left the police station at around 9.50 pm for the spot vide DD no. 18A. and at that time HC Inder Singh and Ct. Deepak were in civil dress.
2.4. The raiding party reached at the spot i.e. opposite Tentwala School, 66 foota road, New Jafrabad at around 10.00 pm where ASI Rajender Singh asked 45 passersby to join the raiding party after disclosing the secret information to them, but none agreed and went away showing their genuine concern without disclosing their names and addresses.
2.5. Thereafter, ASI Rajender Singh along with the secret informer took position by the side of wall adjacent to nala and the other members of the raiding party stood opposite side by the side of wall of kooda khatta. At around 10.50 pm, the secret informer on seeing a person who was coming from the side of Jafrabad pulliya identified him as the person who was having smack. On this, the said person was apprehended by ASI Rajender Singh with the help of other members of the raiding team. During interrogation, the name of the said person was revealed as Imran, son of late Inaam, resident of D463, Gali No. 19, Eidgah Road, Janta Colony, Delhi (the accused). ASI Rajender Singh again requested 45 passers by to join the investigation after disclosing secret SC No. 272/2017 Page 3 of 45 State vs. Imran Judgment dt. 06.03.2024 information to them, but none agreed and went away showing their genuine concern.
2.6. ASI Rajender Singh introduced himself and other members of the raiding party to the accused and also informed him that the raiding party was having secret information that he was having smack in his possession to be supplied to someone and hence his personal search was required to be conducted.
2.7. The accused was also apprised about his legal right to be searched in presence of a Gazetted Officer or a Magistrate and he was also offered to take search of the raiding party. In this regard, notice under Section 50 of the NDPS Act was also given to the accused but he refused to avail his said legal rights and his reply was written by ASI Rajender Singh on the carbon copy of the notice which was read over and explained to the accused and, thereafter, he put his signature on the same in Hindi.
2.8. HC Inder Singh conducted cursory search of the accused and one momi polythene was recovered from right pocket of his wearing pants containing some light brownish powder and on checking the same in the field testing kit it was found to be 'smack'.
2.9. SI Rajender Singh weighed the entire recovered contraband along with the polythene bag on electronic machine and it was found 8.300 grams, out of which two samples of 3 grams each were taken out and the same were SC No. 272/2017 Page 4 of 45 State vs. Imran Judgment dt. 06.03.2024 kept in two transparent polythene bags which were tied with the rubber bands and converted into two pullandas with the help of cloth and the said pullandas were marked as S1 and S2. The remaining smack of 2.300 grams alongwith the polythene was also converted into a cloth pullanda and the said pullanda was marked as S3 and all the pullandas were sealed with the seal of 'RS'.
2.10. ASI Rajender Singh also filled up the FSL form at the spot and affixed his seal on the same. All the sealed pullandas along with FSL form were taken into police possession. ASI Rajender Singh, thereafter, prepared tehrir and handed over the same to HC Inder Singh along with all the sealed pullandas, FSL Form and copy of seizure memo with a direction to hand over the tehrir to the Duty Officer for registration of case and other articles to the SHO for the proceedings under Section 55 of the NDPS Act.
2.11. After registration of the FIR, the investigation was marked to ASI Dharamvir who along with HC Inder Singh reached at the spot where ASI Rajender Singh handed over the documents related to the present case and custody of the accused to ASI Dharamvir.
2.12. ASI Dharamvir prepared the site plan at the instance of ASI Rajender Singh and relieved the latter after recording his statement. Thereafter, ASI Dharamvir interrogated the accused, recorded his disclosure statement SC No. 272/2017 Page 5 of 45 State vs. Imran Judgment dt. 06.03.2024 and arrested him. He also conducted personal search of the accused during which original notice under Section 50 of the NDPS Act and Rs. 110/ in cash were recovered which were taken into police possession.
2.13. The accused was produced before the Court and was remanded to judicial custody. ASI Dharamvir recorded the statement of witnesses and sent the exhibits to FSL Rohini. Thereafter, he went for training and the further investigation was marked to ASI Khurshid Ali who after collecting the FSL result prepared the chargesheet against the accused and filed in the Court. As per FSL result, exhibit S1 was found containing 'Diacetylmorphine', '6 monoacetylmrphine' & 'Acetaminophen'.
3. After compliance of section 207 Cr.P.C., charge under Section 21 of the NDPS Act was framed against the accused on 26.04.2018 to which he pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution has examined 09 witnesses.
5. It is pertinent to mention here that after examination of three witnesses as PW1, PW2 and PW3, the witness numbers have been mentioned as PW8, PW9, PW10, PW11, PW12 and PW13 skipping the numbers PW4, PW5, PW6 & PW7 due to inadvertent mistake.
6. PW1 is Ct. Raj Singh, who on the instructions of SC No. 272/2017 Page 6 of 45 State vs. Imran Judgment dt. 06.03.2024 the IO/ASI Dharamvir collected one sealed pullanda along with relevant documents from the malkhana on 21.12.2016 and got deposited the same at FSL, Rohini vide road certificate no. 182/21/16 dated 06.10.2017. He after depositing the sample at FSL Rohini handed over the acknowledgment of case acceptance to the MHC(M).
7. PW2 is ASI Rajender Singh, the first Investigating Officer (IO) of the case. He is the In Charge of the raiding party which apprehended the accused and recovered the contraband from him. This witness more or less deposed as per the averments made in the chargesheet. Thus, the detailed account of his testimony is not being repeated here for the sake of brevity and shall be discussed at the later and appropriate stage of the judgment. During evidence of this witness, the entire case property which includes the contraband recovered from the accused as well as the sample which was received back from the FSL was brought on record. The documents as well as case property which were brought on record by this witness are mentioned as under alongwith their identification marks: i. Original DD No. 16A dated 14.12.2016 as Ex.PW2/A ii. Original DD no. 18A dated 14.12.2016 as Ex.PW2/B iii. Carbon copy of notice under Section 50 of the NDPS Act served upon the accused as Ex.PW2/C iv. Seizure memo of contraband as Ex.PW2/D v. Tehrir prepared by him as Ex. PW2/E SC No. 272/2017 Page 7 of 45 State vs. Imran Judgment dt. 06.03.2024 vi. Sample pullanda Mark S1 which was sent to FSL and produced by MHC(M) with the seal of FSL as PW2/Article1 (Colly) vii. Two cloth pullandas Mark S2 and S3 produced by MHC(M) with the seals of the IO and the SHO as PW2/Article2 (Colly) & PW2/Article3 (Colly) viii. Original notice under Section 50 of the NDPS Act served upon the accused which was recovered from the personal search of the accused and brought by MHC(M) as Ex. PW2/F.
8. PW3 is ASI Khurshid Ali, the 3 rd IO of the case.
He deposed that on 15.05.2016, he was marked the investigation of the case and the case file was handed over to him by the MHC(R). He further deposed that on 14.06.2016, MHC(M) handed over him the FSL result in the present case which he placed on the file after going through the same. After that, he completed the investigation and prepared the chargesheet on 15.06.216 and later on filed in the Court.
9. PW8 is ASI Ravinder Singh, who was the Duty Officer at PS Welcome on 15.12.2016 and his duty hours were from 12 night to 8.00 am. He registered the FIR in the present case on the basis of tehrir through computer, computerized copy of which is Ex.PW8/A and endorsement made by him on the tehrir is Ex.PW8/B. He deposed that after registration of FIR, he handed over the computerized copy of FIR along with original tehrir to HC Inder Singh to be handed over the same to ASI SC No. 272/2017 Page 8 of 45 State vs. Imran Judgment dt. 06.03.2024 Dharamvir to whom the investigation of the case was marked by the SHO. He made relevant entries in the DD register vide DD nos. 3 and 5 after receiving the rukka and at the time of registration of FIR and after completion of entire process. Copies of the relevant pages of the DD register showing the said entires are Ex.PW8/C and Ex. PW8/D.
10. PW9 Sh. Jitendra Kumar is the Senior Scientific Officer (Chemistry) who was posted at Forensic Science Laboratory (FSL), Rohini on 21.12.2016 and to whom sealed parcel/exhibit S1 was marked for chemical examination. He chemically examined the exhibit and prepared his detailed report which is Ex. PW9/A bearing his signatures on both the pages.
11. PW10 is ASI Jamshed Ali, the then MHC(M) at PS Welcome, Delhi. He deposed that on 14.12.2016, inspector Prashant Kumar, SHO, PS Welcome called him in his office along with register no. 19 and deposited sealed pullandas in the malkhana. He made entry in this regard in register no. 19 at serial no. 2927. He produced copy of the relevant page of the register showing the said entry as Ex. PW10/A. He further deposed that on the same day, IO ASI Dharamvir deposited with him personal search articles of accused Imaran. He made entry to the said effect in the register no. 19 in continuation of Serial no. 2927. The witness further deposed that on 21.12.2016, SC No. 272/2017 Page 9 of 45 State vs. Imran Judgment dt. 06.03.2024 one sealed pullanda Mark S1 was sent to FSL, Rohini along with FSL form and other documents through Ct. Raj Singh vide road certificate no. 18221/16, copy of which is Ex. PW10/B and he made entry to the said effect which is from point B to B on Ex.PW10/A; and after depositing the same, Ct. Raj Singh handed over him the receipt of the acknowledgment, copy of which is Ex. PW10/C. He further deposed that on 22.05.2017, one sealed envelope along with FSL result was received by him through Ct. Ashok which he deposited in the malkhana and he made entry to the said effect from point C to C at Serial No.2927. He handed over the FSL result to IO ASI Khursheed.
12. PW11 ASI Inder Singh (the then Head Constable) is one of the members of the raiding party. He deposed on the similar lines as deposed by PW2 ASI Rajender Singh, the 1st IO of the case in his chief examination.
13. PW12 is Inspector Prashant, the then SHO, PS Welcome. He deposed that on 14.12.2016, at around 9.30 pm, ASI Rajender produced a secret informer in his office who informed that one person, namely, Imran would come opposite Tentwala school near garbage disposal site, 66 foota road, new Jafrabad who was carrying contraband i.e. smack for sale. He gave the said information to ACP concerned telephonically and directed ASI Rajender to SC No. 272/2017 Page 10 of 45 State vs. Imran Judgment dt. 06.03.2024 take action as per law. Thereafter, he made a DD entry 17A which is Ex. PW12/A. He further deposed that in the midnight of 15.12.2016, HC Inder Singh came to his office and handed over him 3 sealed pullandas sealed with the seal of 'RS' having marks S1, S2 & S3 along with FSL form having seal of 'RS' and seizure memo of smack. He affixed his counter seal on the said pullandas with his seal of 'PK' and obtained FIR number of the case and then called MHC(M) along with register no. 19 in his office. He handed over the case property and the other documents to MHC(M) and signed at the relevant entry in register no.
19. He also lodged DD entry no. 4A in this regard which is Ex.PW12/B. He further deposed that on the next day i.e. 15.12.2016, the accused was produced before him by ASI Dharamvir and compliance of Section 57 of the NDPS Act was done.
14. PW13 is SI Dharamvir, the 2nd IO of the case who carried out the investigation in the present case after registration of FIR. He deposed that in the intervening night of 14/15.12.2016, HC Inder Singh handed over original rukka and copy of FIR to him. He, thereafter, along with HC Inder went to the spot i.e. opposite Tentwala school near garbage disposal site, 66 foota road, new Jafrabad where ASI Rajender and Ct. Deepak met him. ASI Rajender handed over him the accused and the documents pertaining to this case. He prepared the site SC No. 272/2017 Page 11 of 45 State vs. Imran Judgment dt. 06.03.2024 plan Ex.PW13/A at the instance of ASI Rajender. He arrested accused Imran vide arrest memo Ex.PW13/B, conducted personal search of the accused vide memo Ex.PW13/C and recorded disclosure statement of the accused which is Ex. PW13/D. During personal search of the accused, original notice under Section 50 of the NDPS Act and Rs. 100/ were recovered from his possession. The witness further deposed that they came back to the PS along with the accused where recovered case property from the possession of the accused were deposited in the malkhana and on the same day the accused was remanded to judicial custody after his medical examination. He further deposed that on 21.12.2016, the exhibits were sent to FSL Rohini through Ct. Raj and he recorded his statement and, thereafter, he went for training after handing over the case file to MHCR.
15. After closing of the prosecution evidence, statement of the accused under Section 313 Cr.P.C. was recorded wherein he pleaded his innocence and claimed that he has been falsely implicated in the present case. The accused opted not to lead evidence in his defence.
16. I have heard the Ld. Additional Public Prosecutor and the Ld. Counsel for the accused and perused the record.
17. During course of the arguments, Ld. Addl. Public Prosecutor submitted that the raiding team members i.e. SC No. 272/2017 Page 12 of 45 State vs. Imran Judgment dt. 06.03.2024 PW2 ASI Rajender Singh (the 1st IO) and PW11 ASI Inder Singh as well the 2nd IO i.e. PW13 SI Dharamvir have fully supported the prosecution case regarding recovery of contraband from the possession of the accused and his arrest in the present case. She further submitted that necessary compliance of Sections 42, 50, 55 and 57 of the NDPS Act was properly made and the same has been duly proved with the evidence of prosecution witnesses. She further submitted that the prosecution has been able to prove its case against the accused beyond reasonable doubt through the testimonies of the prosecution witnesses. Thus, she prayed that the accused may be convicted for the offence he is charged with.
18. Per contra, Ld. Counsel for the accused submitted that the accused has been falsely implicated in the present case and the contraband allegedly recovered from the possession of the accused was planted upon him by the police. He further submitted that no public witness has been joined during the entire investigation despite their availability at the spot which is a public place and the entire case rests solely on the testimony of police officials which makes the story of the prosecution doubtful. He further submitted that notice under Section 50 of the NDPS Act allegedly served upon the accused was defective being not served upon the accused at the spot. He contended that the signatures of the accused were taken SC No. 272/2017 Page 13 of 45 State vs. Imran Judgment dt. 06.03.2024 on some blank papers which were later on manipulated by the police and all the proceedings were conducted while sitting in the police station. Ld. Defence Counsel further submitted that there was no compliance of Section 52A of the NDPS Act as the samples were not drawn in the presence of Magistrate. He further submitted that the case property was tampered by the IO. He contended that the prosecution has failed to prove its case against the accused beyond reasonable doubt and hence the accused is liable to be acquitted.
DISCUSSION ON THE POINT OF COMPLIANCE OF SECTION 42 OF THE NDPS ACT
19. As per settled provision of Section 42 of the NDPS Act, the concerned police officer, to whom the secret information was received, is required to inform his immediate senior officer immediately about the secret information and send the information so reduced into writing within 72 hours of its receipt.
20. In regard to the compliance of Section 42 NDPS Act, the prosecution has examined 02 witnesses, namely, PW2 ASI Rajender Singh, the 1st IO of the case and PW 12 Inspector Prashant.
21. In this regard, PW2 ASI Rajender Singh deposed that on 14.12.2016, he was posted and on duty at PS Welcome and at about 8.45 pm, a secret informer came to his office and informed that one person, namely, Imran SC No. 272/2017 Page 14 of 45 State vs. Imran Judgment dt. 06.03.2024 who deals in smack was roaming opposite Tent wala school, near kuda khatta, 66 foota road, New Jafrabad with smack in his possession and if raided, he could be apprehended along with the contraband. Having been satisfied himself with the information, he reduced the secret information in writing vide daily diary no. 16A at 9.20 pm which is Ex.PW2/A and produced the copy of the DD before the SHO for proceedings under Section 42 of the NDPS Act. He also produced the secret informer before the SHO who made enquiries from the secret informer and after satisfying himself with the information communicated the same to the ACP concerned telephonically who directed to take legal action as per law.
22. In his crossexamination, PW2 ASI Rajender Singh stated that secret informer had not informed him regarding accused prior to present information. He admitted that secret informer knew the accused prior to the incident. He denied the suggestion that there was enmity between the secret informer and the accused. He could not tell as to for how long the secret informer and the accused were known to each other.
23. The aforesaid crossexamination of the witness shows that nothing could be extracted from the testimony of the witness to assail his version about receipt of the secret information and passing on the information to his immediate senior officer within prescribed time.
SC No. 272/2017 Page 15 of 45State vs. Imran Judgment dt. 06.03.2024
24. The testimony of PW2 ASI Rajender Singh has been duly supported by PW12 Inspector Prashant who deposed that on 14.12.2016, he was posted as SHO PS Welcome and on that day, at around 9.30 pm, ASI Rajender produced a secret informer in his office who informed that one person, namely, Imran would come opposite Tentwala school near garbage disposal site, 66 foota road, new Jafrabad who was carrying contraband i.e. smack for sale. He further deposed that he gave the said information to ACP concerned telephonically and directed ASI Rajender to take action as per law. Thereafter, he made a DD entry 17A which is Ex. PW12/A.
25. In his crossexamination, this witness categorically stated that he had personally examined the secret informer produced by ASI Rajender. He further stated that the information with regard to illegal contraband was provided by the secret informer for the first time. He further stated that the secret informer remained present in his office for about ten minutes only. He further stated that he was not the part of the raiding team and had not visited the spot. He was suggested that no DD entry regarding the intimation of secret information was given to him which he denied.
26. As such, the testimony of this witness that he was intimated about the secret information immediately after its receipt could not be impeached by the Ld. Defence SC No. 272/2017 Page 16 of 45 State vs. Imran Judgment dt. 06.03.2024 Counsel. His testimony that he informed the ACP concerned telephonically about the secret information on the same day has also remained unshaken.
27. From the testimonies of above two witnesses, it is established on record that a secret information about the movement of accused was received by PW2 ASI Rajender Singh at PS Welcome on 14.12.2016 at about 8.45 pm. He reduced the said information in writing vide DD no. 16A Ex.PW2/A at 9.20 pm and immediately produced the secret informer to his immediate senior officer i.e. PW12 Inspector Prashant, the then SHO, PS Welcome who also reduced the said secret information in writing vide Ex. PW12/A at about 9.40 pm and conveyed the information to his immediate officer i.e. the ACP concerned telephonically on the same day in compliance of Section 42 (2) of the NDPS Act. It is, thus, held that compliance of Section 42 NDPS Act has been properly made in the present case.
DISCUSSION ON THE POINT OF RECOVERY OF CONTRABAND
28. As per prosecution case, on 14.12.2016, a secret information was received by ASI Rajender Singh when he was present at PS Welcome whereupon he with permission of his superiors constituted a raiding team comprising of SC No. 272/2017 Page 17 of 45 State vs. Imran Judgment dt. 06.03.2024 himself, HC Inder Singh and Ct. Deepak. The raid was conducted at the place of information and the accused was apprehended from whose possession 8.3 grams of heroin was effected.
29. In order to prove its case, the prosecution has examined two recovery witnesses, namely, PW2 ASI Rajender Singh and PW11 ASI Inder Singh (the then Head Constable). Both the recovery witnesses have spelled out in detail the manner in which the accused was apprehended and recovery of contraband was effected from him.
30. PW2 ASI Rajender Singh, who is the 1 st IO and In charge of the raiding team, deposed that he constituted a raiding party along with HC Inder Singh, Ct. Deepak and the secret informer and collected IO kit, field testing kit and electronic weighing machine from the malkhana and, they all left for the spot from the police station vide DD no. 18A Ex.PW2/B. He was in uniform and the other members of raiding party were in civil dress. They reached at the spot at 10.00 pm where he asked 45 passersby to join the investigation after disclosing the secret information to them, but none agreed. He, thereafter, briefed the raiding party and they all took their position at different places. He along with the secret informer took position by the side of wall adjacent to nala and the other members of the raiding party stood opposite side near SC No. 272/2017 Page 18 of 45 State vs. Imran Judgment dt. 06.03.2024 kooda khatta. He further deposed that at about 10.15 pm, he saw one person coming from the side of Jafrabad pulliya and the secret informer pointed out towards him and identified him as Imran who deals in smack and, thereafter, the informer left the spot. He further deposed that he along with members of the raiding party apprehended the accused. He introduced himself and other members of the raiding party to the accused and also informed him (the accused) that the raiding party was having secret information that he was having smack in his possession to be supplied to someone and hence his personal search was required to be conducted. He also served a notice under Section 50 of the NDPS Act to the accused which he prepared in duplicate. He further deposed that HC Inder Singh conducted cursory search of the accused during which one transparent polythene bag mouth of which was tied with rubber band containing some brownish powder was recovered from right pocket of his wearing pants and on checking in the field testing kit it was found to be 'heroin'. He weighed the recovered contraband along with polythene and it was found 8 grams 300 mg.
31. The aforesaid testimony of PW2 Asi Rajender Singh, the 1st IO has been duly corroborated by PW11 ASI Inder Singh (the then Constable) who has deposed on the similar lines as deposed by PW2 ASI Rajender Singh SC No. 272/2017 Page 19 of 45 State vs. Imran Judgment dt. 06.03.2024 and very well supported his version regarding recovery of the contraband from the possession of the accused.
32. In the crossexamination of both the above witnesses, nothing material could be brought on record by the Ld. Defence Counsel to disbelieve their version.
33. PW2 ASI Rajender Singh categorically stated in his crossexamination that they reached at the spot at 10.00 pm on foot. He was suggested that all members of the raiding party were in uniform which he denied. He volunteered that he was in uniform. He categorically stated that the accused was wearing pant of Saleti colour and brown shirt. He further stated that the weighing machine and testing kit were already with him in the IO bag. He further stated that field testing kit was got issued from the Malkhana. He had not done any receiving of the filed testing kit, which was issued from the Malkhana. He did not know whether any register is maintained in the Malkhana regarding issuance of filed testing kit. He did not remember the expiry date or the manufacturing date of filed testing kit. He also did not remember how many rows and columns were there in the in the filed testing kit. He stated that the field testing kit was of fire built. He further stated that after testing the contraband, the colour of contraband changed to pink.
34. The witness further stated that maximum capacity of weighing machine was 1 kg. He further stated that SC No. 272/2017 Page 20 of 45 State vs. Imran Judgment dt. 06.03.2024 electronic weighing machine is kept in the malkhana. He had got it issued from the malkhana on that day. He had not made any receiving regarding issuance of electronic withing machine from the malkhana. He was not aware whether any register is maintained in the malkhana regarding electronic weighing machine. He did not remember whether the electronic weighing machine was certified by the weight and measurement department or not, which was used by him. He denied the suggestion that no weighing machine was got issued from the malkhana and that is why no document regarding the same is on the file.
35. From the aforesaid crossexamination of the witness, it is evident that his most of the crossexamination revolved around entry being not made by him regarding issuance of filed testing kit and the electronic weighing machine from the malkhana. It appears that Ld. Defence Counsel wanted to convey that since the IO i.e. PW2 ASI Rajender Singh had not made any entry showing issuance of filed testing kit and the electronic weighing machine from the malkhana, it is not established on record that no such items were got issued by him. However, PW2 ASI Rajender Singh categorically deposed in his examination inchief itself that he collected IO kit, field testing kit and electronic weighing machine from malkhana and left for the spot vide DD No. 18A. He produced the original DD SC No. 272/2017 Page 21 of 45 State vs. Imran Judgment dt. 06.03.2024 No. 18A which is Ex. PW2/B which proves the aforesaid deposition of the witness. Therefore, it cannot be said that no entry was made regarding issuance of field testing kit and the electronic weighing machine by the 1st IO/PW2 ASI Rajender Singh. Even if no separate entry was made by the IO in this regard, it does not make any dent to the prosecution case as it was nowhere case of the accused that the field testing kit was not functioning properly or the electronic weighing machine could not weigh the recovered contraband. The witness disclosed the maximum capacity of the electronic weighing machine and the result of the substance recovered from the possession of the accused after checking it on the field testing kit.
36. It is, thus, evident that the testimony of this witness regarding apprehension of the accused from the place of information and recovery of contraband from the possession of the accused could not be shaken by the Ld. Defence Counsel.
37. Similarly, there is nothing material in the cross examination of PW11 ASI Inder Singh, the another recovery witness on this aspect. He admitted that IO did not note down the name and address of the public witnesses who were asked to join the investigation. He further admitted that in the site plan there is no specific marking with regard to the point where the raiding team SC No. 272/2017 Page 22 of 45 State vs. Imran Judgment dt. 06.03.2024 members had taken position. He further admitted that IO did not prepare videography or photograph of the recovery proceedings. He admitted that place of recovery is a crowded area. He categorically stated that they remained at the spot for about three hours. He denied the suggestion that he did not visit the spot or that all the writing work was done in the police station.
38. It is true that in this case, videography or photography of the proceedings has not been done, but only on that account the accused cannot be acquitted. It is clear from the testimony of above recovery witnesses that they very well withstood the test of cross examination and no material contradiction has surfaced in their cross examination to doubt their version regarding the recovery proceedings.
39. The accused though in his statement recorded under Section 313 Cr.P.C. claimed innocence and false implication in the present case. However, the accused has not mentioned any reason whatsoever for his false implication. The accused neither claimed animosity nor acquaintance with the police officials, hence there was no ground or reason for the police to falsely implicate him in the present case. Furthermore, till date the accused has not raised any protest against his alleged false implication which shows that he has taken this plea for the sake of plea and there is no substance in it.
SC No. 272/2017 Page 23 of 45State vs. Imran Judgment dt. 06.03.2024
40. The accused has also given a vague suggestion to PW2 ASI Rajender Singh that the proceedings were conducted in police station in connivance with secret informer to falsely implicate him as there was enmity between him and the secret informer. However, the said suggestion was denied by the witness. Except the above vague and bald suggestion, nothing has been brought on record by the accused to suggest that he was having any enmity with the secret informer and that was the reason for his false implication by the police officials.
41. On the other hand, the raiding team members i.e. PW2 ASI Rajender Singh and PW11 ASI Inder Singh have disclosed all the material facts pertaining the time when they arrived at the place of information, the time when the accused arrived there, where they took their positions, the manner in which they apprehended the accused, the colour of the pants of the accused which he was wearing at that time and from which pocket of the pants, the contraband was recovered from the possession of the accused. They have deposed on the similar lines and very well supported the version of each other and their testimonies could not be shaken by the Ld. Defence Counsel during their crossexamination as noted herein above.
42. In view of these discussions, it is held that prosecution has successfully proved that the accused was SC No. 272/2017 Page 24 of 45 State vs. Imran Judgment dt. 06.03.2024 apprehended from the place of information i.e. opposite Tent wala school, near kuda khatta, 66 foota road, New Jafrabad and that 8.300 grams heroin was recovered from the right pocket of the wearing pants of the accused.
DISCUSSION ON THE POINT OF COMPLIANCE OF SECTION 50 OF NDPS ACT
43. The legal position in respect to the Section 50 NDPS Act has been laid down by Hon'ble Supreme Court in the case titled as State vs Baldev Singh reported as 1999 AIR (SC) 2378 that the compliance of the provisions of section 50 NDPS Act is mandatory. It is also held in this case that the compliance of this provision is not necessary where recovery was effected without prior information and where it was the case of a chance recovery. The relevant para of this judgment reads as under:
11. On its plain reading, Section 50 would come into play only in the case of a search of a person as distinguished from search of any premises etc. However, if the empowered officer, without any prior information as contemplated by Section 42 of the Act makes a search or causes arrest of person during the normal course of investigation into an offence or suspected offence and on completion of that search, a contraband under the Narcotic Drugs And Psychotropic Substances Act is also recovered, the requirements of Section 50 of the Act are not attracted.
SC No. 272/2017 Page 25 of 45State vs. Imran Judgment dt. 06.03.2024
44. In the case titled as State of Punjab vs. Balbir Singh reported as 1994(3) SCC 299, same view has been taken by Hon'ble Supreme Court. The relevant para reads as under:
27. The questions considered above arise frequently before the trial courts. Therefore, we find it necessary to set out our conclusions which are as follows :
1) If a police officer without any prior information as contemplated under the provisions of the Narcotic Drugs And Psychotropic Substances Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offence as provided under the provisions of Cr P.C. and when such search is completed at that stage Section 50 of the Narcotic Drugs and Psychotropic Substances Act would not be attracted and the question of complying with the requirements thereunder would not arise. If during such search or arrest there is a chance recovery of any narcotic drug or Psychotropic substance then the police officer, who is not empowered, should inform the empowered officer who should thereafter proceed in accordance with the provisions of the Narcotic Drugs And Psychotropic Substances Act. If he happens to be an empowered officer also, then from that stage onwards. he should carry out the investigation in accordance with the other provisions of the Narcotic Drugs And Psychotropic Substances Act.
45. As per prosecution case, after apprehension of the accused, he was served with the mandatory notice under SC No. 272/2017 Page 26 of 45 State vs. Imran Judgment dt. 06.03.2024 Section 50 of the NDPS Act and only after his refusal to avail his legal rights, his search was carried out. However, in his statement recorded under Section 313 Cr.P.C. has denied to have been served with any such notice and claimed that at the time of his arrest, his signatures were taken by the police on some blank papers.
46. In view of the said claim of the accused, it is to be seen whether or not compliance of Section 50 of the NDPS Act was properly made before search of the accused.
47. In this regard, PW2 ASI Rajender Singh, the 1st IO of the case and the InCharge of the raiding team deposed that after apprehension of the accused, he introduced himself and other members of the raiding party to the accused and also informed him (the accused) that the raiding party had secret information that he was having smack in his possession to be supplied to someone and hence his personal search was required to be conducted. He offered the accused to search the raiding party prior to his search. He apprised the accused about his legal rights to be searched in presence of a Gazetted Officer or a Magistrate and for that purpose they could be called at the spot or he could be produced before either of them . He further deposed that he served a notice under Section 50 of the NDPs Act to the accused which he prepared in duplicate vide carbon process. He further deposed that the accused refused to take the search of raiding party or to be SC No. 272/2017 Page 27 of 45 State vs. Imran Judgment dt. 06.03.2024 produced before Gazetted Officer or Magistrate or call either of them at the spot and the reply of the accused was written by him on the carbon copy of the notice as the accused was illiterate and, thereafter, HC Inder took cursory search of the accused. He identified the carbon copy of notice as Ex. PW2/C upon which he wrote the reply of the accused from point X to X1.
48. In his crossexamination, PW2 ASI Rajender Singh categorically stated that notice under Section 50 NDPS Act was given to the accused in presence of members of raiding party. He had not taken signatures of members of raiding party on the above notice. He further categorically stated that the contents of the notice were read over and explained to the accused.
49. The aforesaid crossexamination of PW2 ASI Rajender Singh clearly shows that the Ld. Defence Counsel could not impeach his testimony regarding preparation of notice under Section 50 of the NDPS Act by him in duplicate and service of the original notice upon the accused before his search.
50. The aforesaid testimony of PW2 ASI Rajender Singh has been corroborated by PW11 ASI Inder Singh who was one of the members of the raiding party who deposed on the similar lines as deposed by PW2 ASI Rajender Singh regarding service of notice under Section 50 NDPS Act upon the accused.
SC No. 272/2017 Page 28 of 45State vs. Imran Judgment dt. 06.03.2024
51. There is nothing material in the crossexamination of PW11 ASI Inder Singh to disbelieve his version. Only a single suggestion was put to him in this regard that no original notice under Section 50 of the NDPS Act was recovered from the possession of the accused which he denied.
52. The Ld. Defence Counsel though during course of the arguments has vehemently argued that the service of notice under Section 50 of the NDPS Act upon the accused is defective as the said notice was not served upon the accused at the spot. He further argued that signatures of the accused were taken on some blank papers which were later on manipulated by the police in order to falsely implicate the accused in the present case.
53. However, I do not find any merit in the contention of Ld. Defence Counsel. As stated earlier, the accused has not been able to show any reason for his false implication by the police as he neither claimed any animosity or any acquaintance with the police. Therefore, this plea of the accused that his signatures were obtained on some blank papers by the police is not believable and cannot be accepted.
54. In view of the testimonies of above recovery witnesses, namely, PW2 ASI Rajender Singh and PW11 ASI Inder Singh, the prosecution has successfully proved on record that the accused was properly served with the SC No. 272/2017 Page 29 of 45 State vs. Imran Judgment dt. 06.03.2024 notice under Section 50 of the NDPS Act before his search and there was no violation of the said mandatory provision.
DISCUSSION ON THE POINT OF SEIZURE OF CONTRABAND, PROCEEDINGS REGARDING DRAWING OF SAMPLE AND COMPLIANCE OF SECTION 55 OF THE NDPS ACT
55. As per the prosecution case, PW2 ASI Rajender Singh, the 1st IO of the case after getting the recovery effected from the possession of the accused, seized the same and drew samples. He deposed that the brownish material recovered from the right pocket of wearing pants of the accused on checking on the field testing kit was found positive for heroin. He weighed the entire recovered powder along with polythene and it was found to be 8.3 grams. He further deposed that he drew two samples of 3 grams each and kept them in separate two transparent polythenes, which were converted into two cloth parcels and these samples were given Mark S1 & S2. He also converted the remaining contraband into cloth parcel and sealed all the parcels with the seal of 'RS'. He also filled up the FSL form at the spot and seized all the sealed parcels vide seizure memo Ex.PW2/B and handed over the seal to Ct. Deepak. He, thereafter, prepared tehrir Ex.PW2/E and handed over the same to HC Inder along with three sealed parcels, carbon copy of seizure memo and FSL form with direction to hand over rukka to Duty SC No. 272/2017 Page 30 of 45 State vs. Imran Judgment dt. 06.03.2024 officer and the remaining things to the SHO.
56. The aforesaid testimony of PW2 ASI Rajender Singh, 1st IO has been duly corroborated by PW11 ASI Inder Singh (the then Head Constable) who is witness to the seizure of contraband by the 1st IO from the possession of the accused and its sampling. He has deposed on the similar lines as deposed by PW2 ASI Rajender Singh and very well supported his version regarding seizure of the contraband from the possession of the accused, its sampling and sealing.
57. In the crossexamination of the above recovery witnesses including the 1st IO, nothing material could be brought on record by the Ld. Defence Counsel to disbelieve their version regarding seizure of 8.3 grams of heroin recovered from the possession of the accused, its sealing and sampling done by PW2 ASI Rajender Singh on the spot.
58. It has come from the testimonies of above recovery witnesses that IO ASI Rajender Singh after seizure of the contraband from the possession of the accused sealed the same and sent the case property to the SHO through PW 11 ASI Inder Singh (the then Head Constable).
59. In this regard, PW12 Inspector Prashant, the then SHO PS welcome deposed that in the midnight of 15.12.2016, HC Inder Singh came to his office and SC No. 272/2017 Page 31 of 45 State vs. Imran Judgment dt. 06.03.2024 handed over him 3 sealed pullandas sealed with the seal of 'RS' having marks S1, S2 & S3 along with FSL form having seal of 'RS' and seizure memo of smack. He affixed his counter seal on the said pullandas with his seal of 'PK' and obtained FIR number of the case and then called MHC(M) along with register no. 19 in his office. He handed over the case property and the other documents to MHC(M) and signed at the relevant entry in register no.
19. He also lodged DD entry no. 4A in this regard which is Ex.PW12/B.
60. In his crossexamination, PW12 Inspector Prashant categorically stated that the FSL pullandas were produced before him at around 12 midnight. He was suggested that no sealed pullandas were produced before him by ASI Rajender and the same were in tampered condition which he denied.
61. The aforesaid testimony of PW12 Inspector Prashant, the then SHO, PS Welcome regarding deposit of case property in the malkhana has been corroborated by PW10 ASI Jamshed Ali, the then MHC(M) who deposed that on 14.12.2016, inspector Prashant Kumar, SHO, PS Welcome called him in his office along with register no. 19 who handed over him 3 sealed pullandas sealed with seal of 'PK' and 'RS' along with FSL form and carbon copy of seizure memo to be deposited in the malkhana. He made entry in this regard in register no. 19 at serial no.
SC No. 272/2017 Page 32 of 45State vs. Imran Judgment dt. 06.03.2024 2927. He produced copy of the relevant page of the register showing the said entry as Ex. PW10/A.
62. The Ld. Defence Counsel chose not to cross examine this witness and, as such, testimony of this witness regarding deposit of case property in sealed condition by PW12 Inspector Prashant, the then SHO, PS Welcome in the malkhana has gone unrebutted and uncontroverted.
63. The Ld. Defence Counsel during course of the arguments though has argued that case property was tampered by the IO, however I do not find any substance in this argument.
64. In the instant case, it is clear from the prosecution evidence brought on record by the prosecution that after recovery of contraband, the sample pullandas Mark S1 & S2 were sealed by PW2 ASI Rajender Singh, the 1 st IO with seal of 'RS' and, thereafter, he handed over the sealed pullandas along with FSL form and carbon copy of the FSL form to PW11 ASI Inder Singh to be handed over to the SHO. PW11 ASI Inder Singh went to PS and handed over the case property along with other articles to PW12 Inspector Prashant, the SHO who also put his seal 'PK' on the pullandas and deposited the same with PW10 Jamshed Ali, the then MHC(M) on 14.12.2016 itself.
65. PW1 Ct. Raj Singh who got deposited the SC No. 272/2017 Page 33 of 45 State vs. Imran Judgment dt. 06.03.2024 samples/exhibits at FSL Rohini for chemical examination also deposed that he collected sealed pullandas sealed with the seals of 'RS' and 'PK' from the malkhana and deposited the same at FSL Rohini. He also deposed that till the pullandas were in his possession, the seal remained intact and no tampering was done.
66. This witness was not crossexamined at all and his aforesaid testimony has gone unrebutted and unchallenged.
67. It is further clear from the FSL Report Ex. PW9/A that exhibits were received by PW9 Sh. Jitendra Kumar, the Senior Scientific Officer (Chemistry) at FSL, Rohini, Delhi for chemical analysis in sealed condition sealed with above said two seals 'RS' and 'PK' which were found to be intact on which there is no crossexamination of the witness.
68. It is, thus, clear that immediately after sealing the sample, without wasting any time, the sample pullandas were deposited in the malkhana and the same were no more in possession of the IO. Further, the exhibits in the sealed condition were collected and deposited at FSL Rohini. Hence, question of tampering of samples by the IO does not arise.
69. In view of the above discussions, it is apparent that after recovery of contraband, the sampling was done on SC No. 272/2017 Page 34 of 45 State vs. Imran Judgment dt. 06.03.2024 the spot and the 1st IO PW2 ASI Rajender Singh after sealing the samples and the case property did not retain the seal with him and handed over the same to Ct. Deepak. It is further evident that immediately after seizure, the pullandas of the contraband, samples and FSL form were sent to Inspector Prashant, the then SHO who also put his seal on the pullandas of case properties and immediately deposited the case property in the Malkhana. Hence, it stands proved that compliance of Section 55 of the NDPS Act has been made in the instant case.
DISCUSSIONS ON THE POINT OF NON JOINING OF THE PUBLIC WITNESSES
70. During course of arguments, Ld. Defence Counsel submitted that the prosecution case is highly doubtful as no public witness has been joined during the entire investigation and the prosecution case solely rests on the testimonies of police witnesses who are not reliable and creditworthy being interested witnesses.
71. Admittedly, in the present case no public or independent witness has been joined during course of the investigation, however it is clear from the testimonies of the prosecution witnesses that PW2 ASI Rajender Singh, the 1st IO made sincere efforts to join public witnesses, but none agreed.
72. In this regard, PW2 ASI Rajender Singh deposed SC No. 272/2017 Page 35 of 45 State vs. Imran Judgment dt. 06.03.2024 that they reached at the spot at 10.00 pm and he asked 45 passersby to join the investigation after disclosing the secret information to them but none agreed and went away shoeing their genuine concern. After apprehension of the accused, the IO again asked 45 passersby to join the investigation after disclosing the secret information to them but none agreed and went away shoeing their genuine concern.
73. The witness was not crossexamined on this aspect and his this part of his testimony has gone unchallenged.
74. Thus, once it has come on record that public witness could not be joined despite efforts were made then non joining of independent witness is not fatal to the prosecution case. In this regard, this court is supported by the case law i.e. Ajmer Singh vs. State of Haryana reported as 2010 (2) SCR 785. The relevant para reads as under: It is true that a charge under the Act is serious and carries onerous consequences. The minimum sentence prescribed under the Act is imprisonment of 10 years and fine. In this situation, it is normally expected that there should be independent evidence to support the case of the prosecution. However, it is not an inviolable rule. Therefore, in the peculiar circumstances of this case, we are satisfied that it would be travesty of justice, if the appellant is acquitted merely because no independent witness SC No. 272/2017 Page 36 of 45 State vs. Imran Judgment dt. 06.03.2024 has been produced. We cannot forget that it may not be possible to find independent witness at all places, at all times. The obligation to take public witnesses is not absolute. If after making efforts which the court considered in the circumstances of the case reasonable, the police officer is not able to get public witnesses to associate with the raid or arrest of the culprit, the arrest and the recovery made would not be necessarily vitiated. The court will have to appreciate the relevant evidence and will have to determine whether the evidence of the police officer was believable after taking due care and caution in evaluating their evidence.
75. It is well settled law that the evidence of police official cannot be doubted unless previous enmity between the accused and the police officials is shown. In Sunil Tomar vs. State of Punjab, Criminal Appeal no. 1690 1691 of 2012 decided on 19.10.12, it was held : 'In a case of this nature, it is better if prosecution examines atleast one independent witness to corroborate its case. However, in the absence of any animosity between the accused and official witnesses, there is nothing wrong in relying upon their testimonies and accepting the documents placed for basing conviction. After taking into account the entire material relied upon by the prosecution, there is no animosity established on the part of the official witnesses by the accused in defence SC No. 272/2017 Page 37 of 45 State vs. Imran Judgment dt. 06.03.2024 and we also did not find any infirmity in the prosecution case.
76. Furthermore, the police officials are considered to be equally competent and reliable witnesses and their testimony can be relied upon even without corroboration by an independent witness if same is cogent and reliable. In Rohtas vs. State of Haryana, JT 2013(8) SC 181, Hon'ble Supreme Court held that : 'Where all the witnesses are from police department, their depositions must be subject to strict scrutiny.
However, the evidence of police officials cannot be discarded merely on the ground that they belong to the police force and either interested in investigating or the prosecuting agency'.
77. Further, it is also not uncommon that these days people are generally reluctant to become part of investigation. In this regard, the Hon'ble High Court in the case of Bheru Lal vs, State while observing that recovery cannot be doubted for the reason of non joining of public witness held as under:
19. Dealing with a similar contention in 'Ram Swaroop v. State (Govt. NCT) of Delhi', 2013(7) SCALE 407, where the alleged seizure took place at a crowded place yet no independent witness could be associated with the seizure, the Apex Court inter alia SC No. 272/2017 Page 38 of 45 State vs. Imran Judgment dt. 06.03.2024 observed as under:
"7. ....We may note here with profit there is no absolute rule that police officers cannot be cited as witnesses and their depositions should be treated with suspect. In this context we may refer with profit to the dictum in State of U.P. v. Anil Singh, 1988 Supp SCC 686, wherein this Court took note of the fact that generally the public at large are reluctant to come forward to depose before the court and, therefore, the prosecution case cannot be doubted for nonexamining the independent witnesses."
78. Thus, in view of the settled legal position, the testimony of the police officials examined in the instant case cannot be seen with suspicion merely for the reason of non joining of independent witness as firstly it is clear that sufficient efforts were made by the PW2 ASI Rajender Singh to join investigation. Furthermore, the testimonies of the police officials do not suffer from any material contradiction to doubt their version. Moreover, no animosity between the accused and the police officials has been pointed out. Therefore, even otherwise there is no reason to disbelieve the testimonies of police officials regarding non joining of public witnesses.
79. The Ld. Defence Counsel has also vehemently assailed the sampling done by the 1st IO/ PW2 ASI Rajender Singh during course of the arguments. He SC No. 272/2017 Page 39 of 45 State vs. Imran Judgment dt. 06.03.2024 contended that sampling was done in violation of Section 52 A (2) of the NDPS Act and the 1st IO should have drawn the samples before the Magistrate and for non compliance of the said mandatory provision, the entire prosecution case against the accused stands vitiated and on this count only, the accused is liable to be acquitted.
80. It is a matter of record that samples of the contraband recovered from the possession of the accused were drawn by ASI Rajender Singh, the 1st IO at the spot. Now, it has to be seen as to whether the act of drawing samples by the 1st IO without taking recourse to the provisions of subsection 2 of Section 52A of the NDPS Act has rendered the entire prosecution against the accused vitiated as argued by the Ld. Defence Counsel.
81. In Simaranjit Singh vs. State of Punjab, Criminal Appeal No. 1443 of 2023 decided on 09.05.2023, similar issue was raised by the Ld. Counsel for the appellant that the prosecution is vitiated as the work of drawing sample was done by PW7 without taking recourse to subsection 2 of Section 52A of the NDPS Act.
82. The Hon'ble Apex Court while referring to paragraphs 15 to 17 of its decision in Union of India vs. Mohanlal & Anr., (2016) 3 SCC 379 observed as under: "9. Hence, the act of PW7 of drawing samples from all the packets at the time of seizure is not in conformity with the law SC No. 272/2017 Page 40 of 45 State vs. Imran Judgment dt. 06.03.2024 laid down by this Court in the case of Mohanlal. This creates a serious doubt about the prosecution's case that substance recovered was a contraband".
83. With these observations, the Hon'ble Apex Court held that the the case of the prosecution is not free from suspicion and the same has not been established beyond a reasonable doubt; accordingly set aside the impugned judgments and quashed the conviction and sentence of the appellant in that case.
84. In Yusuf @ Asif vs. State, Criminal Appeal No. 3191 of 2023 decided on 13.10.2023, a case was registered in the year 2000 on the basis of information received by the Intelligence Officer of Narcotics Control Bureau. As per the information, a vehicle was intercepted on 28.03.2000 and four persons present in the vehicle were found in possession of commercial quantity i.e. 20 kilogram of heroin. After trial, all the said four persons were held guilty under the provisions of NDPS Act and they were sentenced to rigorous imprisonment for 10 years and to pay fine of Rs. 1 lakh each, in default to undergo further imprisonment of one year. The said conviction was confirmed by the Hon'ble High Court by dismissing the appeal preferred by all the four convicts holding that there was no error in the findings of the Trial Court. Aggrieved by his conviction and sentence, one of the convicts has preferred an appeal before the Hon'ble Apex Court.
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85. The Hon'ble Supreme Court taking note of provisions of Section 52A(2), (3) and (4) of the NDPS Act, held as under:
12. A simple reading of the aforesaid provisions, as also stated earlier, reveals that when any contraband/narcotic substance is seized and forwarded to the police or to the officer so mentioned under Section 53, the officer so referred to in sub section (1) shall prepare its inventory with details and description of the seized substance like quality, quantity, mode of packing, numbering and identifying marks and then make an application to any Magistrate for the purposes of certifying its correctness and for allowing to draw representative samples of such substances in the presence of the Magistrate and to certify the correctness of the list of samples so drawn.
13. Notwithstanding the defence set up from the side of the respondent in the instant case, no evidence has been brought on record to the effect that the procedure prescribed under subsections (2), (3) and (4) of Section 52A of the NDPS Act was followed while making the seizure and drawing sample such as preparing the inventory and getting it certified by the Magistrate. No evidence has also been brought on record that the samples were drawn in the presence of the Magistrate and the list of the samples so drawn were certified by the Magistrate. The mere fact that the samples were drawn in the presence of a gazetted officer is not sufficient compliance of the mandate of subsection (2) of Section 52A of the NDPS Act.
14. It is an admitted position on record that the samples from the seized substance were drawn by the police in the presence of the gazetted officer SC No. 272/2017 Page 42 of 45 State vs. Imran Judgment dt. 06.03.2024 and not in the presence of the Magistrate. There is no material on record to prove that the Magistrate had certified the inventory of the substance seized or of the list of samples so drawn.
15. In Mohanlal's case, the apex court while dealing with Section 52A of the NDPS Act clearly laid down that it is manifest from the said provision that upon seizure of the contraband, it has to be forwarded either to the officerin charge of the nearest police station or to the officer empowered under Section 53 who is obliged to prepare an inventory of the seized contraband and then to make an application to the Magistrate for the purposes of getting its correctness certified. It has been further laid down that the samples drawn in the presence of the Magistrate and the list thereof on being certified alone would constitute primary evidence for the purposes of the trial.
16. In the absence of any material on record to establish that the samples of the seized contraband were drawn in the presence of the Magistrate and that the inventory of the seized contraband was duly certified by the Magistrate, it is apparent that the said seized contraband and the samples drawn therefrom would not be a valid piece of primary evidence in the trial. Once there is no primary evidence available, the trial as a whole stands vitiated.
86. In view of proposition of law laid down by the Hon'ble Apex Court in the aforesaid judgments, it is clear that if samples of the seized contraband are not drawn in the presence of the Magistrate and the inventory of the SC No. 272/2017 Page 43 of 45 State vs. Imran Judgment dt. 06.03.2024 seized contraband is not duly certified by the Magistrate as required under Section 52A (2) of the NDPS Act, the whole trial against the accused stands vitiated.
87. In the instant case, it has come on record from the testimonies of recovery witnesses that PW2 ASI Rajender Singh, the 1st IO after seizure of contraband, drew samples on the spot. He after seizure of the contraband did not send it to the officer as required under Section 53 of the Act nor inventory of the seized contraband was prepared by the Officer as mentioned in sub section (1) of Section 52A nor the samples were drawn in the presence of the Magistrate nor the samples so drawn at the spot have been certified by the Magistrate to be correct. It is, thus, evident that the IO did not follow the procedure as laid down under Section 52A(2) of the NDPS Act while drawing the samples and there is violation of said mandatory provision. Hence, the accused is liable to be acquitted on this ground alone as has been done by the Hon'ble Apex Court in the judgments cited supra.
88. Accordingly, accused Imran is acquitted of the offence punishable under Section 21 of the NDPS Act. Bail bonds furnished by him under Section 439 Cr.P.C. stand cancelled and his surety is discharged. The bail bonds furnished by him under Section 437A Cr.P.C in the sum of Rs. 25,000/ are accepted, which shall remain in force for a period of six months.
SC No. 272/2017 Page 44 of 45State vs. Imran Judgment dt. 06.03.2024
89. File be consigned to Record Room after necessary compliance. Digitally signed by BALWANT BALWANT RAI BANSAL RAI Date:
BANSAL 2024.03.12
16:45:11
Announced in the open Court +0530
on 6th March, 2024 (Balwant Rai Bansal)
Special Judge (NDPS Act), Shahdara
Karkardooma Courts, Delhi
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State vs. Imran Judgment dt. 06.03.2024