Delhi District Court
State vs Rahim @ Lala on 26 November, 2022
IN THE COURT OF SANJEEV KUMAR-II,
SPECIAL JUDGE (NDPS)-02, CENTRAL DISTRICT,
TIS HAZARI COURTS, DELHI
Session Case No. 252/2019
CNR No. DLCT01-003269-2019
State
versus
Rahim @ Lala,
Son of Mohd. Ali,
Resident of 96A, DDA Janta Flats
Shastri Park, Delhi.
Instituted on : 11.03.2018
Reserved on : 28.10.2022
Decided on : 26.11.2022
JUDGMENT
The accused Rahim @ Lala has been facing trial in Session Case No. 252/2019 relating to First Information Report (FIR) No. 245/2018 registered at Police Station, Crime Branch for an offence under section 21(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short 'NDPS Act'). It is pertinent to mention here that total witnesses examined by the prosecution are thirteen but last witness, namely, Sub-Inspector (retired) Jai Prakash has been given number as PW14 instead of PW13 due to SC No. 252/2019 FIR No. 245/2018 PS:Crime Branch 1 typographical error and therefore, he be read as PW13 instead of PW14.
Facts
2. The facts germane from the prosecution case succinctly necessary for disposal of the present case are that on 26.09.2018, at about 11:30 a.m., one secret informer came to the office of Narcotics Cell, Crime Branch, Daryaganj, Delhi where he met with Additional Sub-Inspector Om Prakash (PW10) who was present in his office, and informed him that one person by the name of Rahim @ Lala, resident of DDA Flats, Shastri Park, North East, Delhi is indulged in supplying heroin in East Delhi. The secret informer further informed that said accused Rahim @ Lala would come on his Honda Activa Scooty (blue and grey colour bearing No. DL 13S V 7153) in between 01.00 p.m. to 02.00 p.m. from the side of Shastri Park at the corner of Nigambodh Ghat Road leading towards Nigambodh Ghat Gate for supply of heroin and if raid is conducted he can be apprehended along with the receiver while giving the heroin. Additional Sub Inspector Om Prakash (PW10) made enquires from the secret informer and after his satisfaction, produced the secret informer before Inspector Sanjay Neolia (PW11) at about 11.45 a.m., and he informed the Additional Commissioner of Police (ACP) about the said information. ACP (PW12) directed to conduct raid immediately.
SC No. 252/2019 FIR No. 245/2018 PS:Crime Branch 2
3. Accordingly, a raiding party consisting of Additional Sub Inspector Om Prakash (PW10), Head Constable Manoj Kumar (PW9) and Head Constable Yogender (PW3) was formed. Vide DD No.16, at about 12.25 p.m., the raiding party along with the secret informer left for the spot in a Santro car bearing No. DL 3CBZ-4571 which was being driven by Constable Rohit. Additional Sub Inspector Om Prakash (PW10) also took Investigating Officer bag, Field Testing Kit with him. They passed through Ring Road ISBT, Kashmere Gate and after taking U turn from Sanskrit Mahavidhyalaya stopped the car about thirty meter away from the spot. The Constable Rohit was directed to remain in the car till further direction by the Additional Sub Inspector Om Prakash who is the First Investigating Officer. Additional Sub Inspector Om Prakash asked four-five public persons to join the raiding party but none agreed and left from there. Nakabandi was held.
4. At about 01.20 p.m., one Scooty No. DL 13SV 7153 was seen coming from Shastri Park side. The rider of the scooty was not wearing the helmet. After identifying said person as Rahim @ Lala, secret informer left from there. The scooty was stopped near Nigam Bodh Ghat. From inside the dickey of the scooty, the said person took out a pink/brick colour cloth bag and started waiting for someone. After 5 minutes, when he was trying to leave from there and was starting his scooty, he was apprehended by the Additional Sub Inspector Om Prakash and other members of the raiding party.
SC No. 252/2019 FIR No. 245/2018 PS:Crime Branch 3
5. Thereafter, Additional Sub Inspector Om Prakash told him about the secret information and upon enquiry that person disclosed his name as Rahim @ Lala, Son of Mohd. Ali, Resident of 96-A, DDA Janta Flats, Shastri Park, Delhi. Additional Sub Inspector Om Prakash also requested eight-ten public persons to join the investigation but none agreed and left from there without disclosing their names and addresses. On the direction of Additional Sub Inspector Om Prakash, Constable Rohit came there along with the Santro car. Additional Sub Inspector Om Prakash apprised the accused about his legal rights to give his search before Gazetted Officer, if he wanted, then the Gazetted Officer or the Magistrate can be called at the spot or he can be produced before him. The accused was also served with a notice under section 50 of the NDPS Act and on the request of accused, reply of the said notice was written by Additional Sub-Inspector Om Prakash himself in Hindi language.
6. The accused handed over the above said cloth bag to the Additional Sub-Inspector Om Prakash who checked the said bag, out of which one transparent polythene was recovered, in which pink colour powder was found. On testing with the field testing kit, it was found to be heroin and on weighing with the help of electric weighing machine, it was found to be 280 grams.
SC No. 252/2019 FIR No. 245/2018 PS:Crime Branch 4
7. Two samples of 5 grams each were taken out and were shifted into two transparent small polythene. Two pullandas of these samples were prepared with white colour cloth. The remaining substance which was lying in the transparent polythene, was again kept in the pink colour bag and with the help of white colour cloth, pullanda of the same was prepared. All the pullandas were sealed with the seal of "8CPS/NBDELHI" and seal after use was handed over to Head Constable Manoj Kumar (PW9). All pullandas were marked as Mark A, Mark B and Mark C respectively. Scooty was also searched vide seizure memo but nothing was recovered.
8. Thereafter, rukka was prepared and was sent to Police Station, Crime Branch through Head Constable Yogender (PW3) along with pullandas. The said Scooty was taken by Head Constable Manoj Kumar (PW9) to the office of Narcotic Cell at about 05.10 p.m.. Additional Sub-Inspector Om Prakash (PW10) along with the accused left the spot in his own Santro car bearing No. 3 CBZ 4571.
FIR
9. On the basis of said rukka, FIR No. 245/2018 was registered at Police Station, Crime Branch by Duty Officer, Head Constable Poonam (PW5) under section 21 and 25 of the NDPS Act on 26.09.2018 SC No. 252/2019 FIR No. 245/2018 PS:Crime Branch 5 Investigation
10. After registration of FIR, investigation was handed over to Sub-Inspector Jai Prakash, PW13 (Second Investigating Officer). Accused was arrested. Case properties were deposited in malkhana. Sample was sent to FSL Rohini. During investigation other proceedings relating to investigation were also conducted.
Charge-Sheet)
11. On completion of investigation, charge-sheet under section 173 of the Code of Criminal Procedure, 1973 (in short 'CrPC.') was filed for the offence under section 21 and 25 of the NDPS Act before this Special Court, NDPS Act.
Cognizance
12. This Special Court took cognizance on 11.03.2019 for the offences. The provisions of section 207 of the CrPC was complied with by giving copies of charge-sheet and other documents to the accused.
Charge
13. The charge was framed on 28.03.2019 for an offence under section 21(c) of the NDPS Act against the accused Rahim @ Lala to which he pleaded not guilty and claimed to be tried.
SC No. 252/2019 FIR No. 245/2018 PS:Crime Branch 6 Prosecution Evidence
14. In order to prove its case, prosecution has examined thirteen witnesses, namely, Head Constable Devender (PW1); Assistant Sub-Inspector Jag Narain (PW2); Head Constable Yogender (PW3); Rajiv Vashisht (PW4); Head Constable Poonam (PW5); Assistant Sub-Inspector Mahesh Chand (PW6); Constable Ankush (PW7); Inspector Satender Sangwan (PW8); Head Constable Manoj (PW9); Assistant Sub-Inspector Om Prakash (PW10); Inspector Sanjay Neolia (PW11); R. K. Ojha (PW12) and Retired Sub-Inspector Jai Prakash (PW13, but inadvertently written as PW14).
Statement of accused
15. All the circumstances in evidence against him were put to the accused persons, when examined under section 313 CrPC. The accused has denied his involvement and stated that he has been falsely implicated in this case.
Defence Evidence
16. The accused did lead evidence in his defence and got examined three defence witnesses, namely, Mohd. Sahaban (DW1); Beauty (DW2) and Geeta (DW3). .
Arguments
17. Mr. Balbir Singh, learned Additional Public Prosecutor for the State has submitted that the prosecution witnesses have fully SC No. 252/2019 FIR No. 245/2018 PS:Crime Branch 7 supported the case of prosecution. There is no material contradiction in testimony of witnesses of prosecution.
18. The learned Additional Public Prosecutor relying upon Ramchandra v. State of Rajasthan, S.B. Criminal Misc. Second Bail Application No.3122/2021 decided on 15.09.2021, submitted that the provisions under section 52A of the NDPS has not been complied with in the present case but same does not affects case of prosecution adversely because same is not mandatory and its non- compliance does not vitiate the trial and police has also independent power of taking sample. The prosecution has been succeeded to prove its case beyond reasonable doubts and therefore, the accused may be convicted for the offence punishable under section 21(c) of the NDPS Act.
19. Per contra, Mr. R.K. Giri, learned counsel appearing for the accused contended that there is non-compliance of section 52A (2) of the NDPS Act because police officer/investigating Officer had not made any application at the very initial stage before the Magistrate for producing the case property and for drawing of the samples and the case property was was not produced by them before the Magistrate for drawing of representative sample and to send it to FSL for chemical analysis. For the first time the case property was produced before the learned predecessor of this Court for recording of evidence of PW-3 Head Constable Yogender. The case relates to SC No. 252/2019 FIR No. 245/2018 PS:Crime Branch 8 26.09.2018 while the case property was produced on 17.12.2019 i.e. after one year and three months of the registration of the case. In the instant case the respective Investigating Officerss did not produce the case property before the Magistrate for drawing the sample nor the sample was drawn in his presence and the police did not follow the mandatory directions of the Hon'ble Supreme Court and produced the case property only on 17.12.2018 for the first time i.e. after 2 years and 9 months after the passing of the mandatory direction by the Hon'ble Apex court on 28.01.2016 in case of Union of India v. Mohan Lal & Another, 1 (2016) SLT 508 and so the sanctity of the samples drawn at the spot cannot be relied upon. The mandatory provisions of Section 52A(2) of NDPS Act have not been followed in the present case as held/directed by the Hon'ble Supreme Court in case of Mohan Lal (supra). The present case was registered on 26.09.2018 i.e. after two years and nine months after the passing of the aforesaid judgment. Hence in the present case the case property was not produced before the Magistrate and no sample was drawn in presence of Magistrate for chemical analysis. Similar view has also been taken by the Hon'ble Delhi High Court in case titled as Air Customs v. Mosafier Alizahi & Others Crl., Misc. no.1490/2020. In this regard, the judgments passed in case of Okafor Chukwuka Ugochukwu v. NCB, 2021 (1) JCC 57 and Thounaojam Punima Singh v. Union of India and Anr, Case No. Crl.A/66/2020 by Hon'ble Gauhati High Court on 20.01.2021 have also been relied upon. Mr. Giri submitted also that the Hon'ble High SC No. 252/2019 FIR No. 245/2018 PS:Crime Branch 9 court of Telangana issued a circular no.13/SO/2019 thereby making directions to the State to comply with the orders of the Hon'ble Supreme Court in Mohan Lal (supra).
20. Mr. Giri referring the testimonies of PWs 8, 9 and 10 has further submitted that no handing over memo of seal was prepared by Assistant Sub-Inspector Om Parkash (PW10), but on oral evidence he states that he handed over the seal to PW9. So it proves that PW10 never handed over the seal to any one nor PW9 deposited the seal in the Malkhana. Similarly Satinder Sangwan (PW8) states that he did not handover the seal to any one and therefore, till 28.09.2018 the seal was with the PW10 and the SHO and he did not handover the seal to any third person nor PW9 and PW8 deposited the seal with the Malkhana as the CFSL form was never produced before this Hon'ble court and so the tampering of the case property cannot be ruled out. In this regard, judgment passed by the Hon'ble High Court of Delhi in case of Mohd. Ibrahim v. State of NCT of Delhi, Crl. Appeal no.426/2010 (vide para no.9) has been relied upon. On this count the Hon'ble High Court held that since the documentary evidence is in the line with the ocular version given by the witnesses with regard to handing over the seal and also held that since the mandatory provision has not been complied and so the accused was acquitted SC No. 252/2019 FIR No. 245/2018 PS:Crime Branch 10
21. Mr. Giri has further contended that copy of the RC of the said scooty mark "PX" in the statement of PW.14 SI Jai Parkash shows the ownership of the said vehicle in the name of one Jumman r/o H.No.96-A, DDA Janta Flats, Shastri Park, Delhi. In this context P.W.10 ASI Om Parkash recorded DD no.15 that they apprehended the accused Rahim @ Lala and recovered the alleged substance and the alleged scooty and they mentioned the address of Rahim @ Lala as 96-A, DDA Flats, Shastri Park, Delhi. During the cross- examination of P.W.10 (first investigating officer), he admitted that he did not verify the ownership of the scooty and also did not get verified the residence of Rahim @ Lala and mentioned his address as 96-A, DDA Flats, Shastri Park, Delhi in the documents. Further, Second Investigating Officer, Sub-Inspector Jai Parkash (PW14) in his cross-examination admitted that the registered owner of the said scooty is Jumman and he was confined in Judicial custody on the alleged date on 26.09.2018 in case FIR No.171/2018 and during interrogation Jumman stated in the jail that he did not know how Rahim came in possession of the said scooty on the alleged date and also admitted that he did not verify as to who lived in the house no. 96-A and also did not verify the address of Rahim @ Lala as 90-A. But the bare perusal of the statement of PW4 Rajiv Vashisht, Nodal Officer, Bharti Airtel Limited in which PW-14 obtained Customer Application Form (Exhibit P.W.4/A) in which the address of Rahim @ Lala was mentioned as 90-A, DDA Janta Flats, Shastri Park, Delhi as well as in his Adhar card meaning thereby that this P.W.14 SC No. 252/2019 FIR No. 245/2018 PS:Crime Branch 11 was well aware that Rahim had been living at 90-A, Shastri Park but during his deposition before this Hon'ble court in his examination- in-chief and cross-examination he stated that Rahim was not residing at 90-A instead was residing at 96-A and this application was obtained by the said SI PW-14 from the Nodal Officer on 03.01.2019 while the charge sheet was filed on 06.03.2019 and he himself deposed before this court on 22.7.2022 and 5.8.2022 , then why even after receiving the CAF on 3.1.2019 and before filing of charge sheet he did not verify the address of the Rahim @ Lala. There is no statement, document or even a shred of evidence proven by the prosecution that how Rahim @ Lala came into possession of scooty with key when he did not had access to the house 96A DDA Janta Flats, shastri park delhi, where scooty was parked according to its owner Jumman. According to DW1 Mohd. Sahaban, the police officials arrived at the flat no.96-A and took one scooty Activa from there in the morning at about 08.00/ 08.30 a.m. on 26.09.2018. The scooty was parked near the stair-case and the same was not in working condition. The same was lifted in a mini truck like vehicle (Chhotta Hath). This proves that the story of the prosecution as alleged is false and fabricated.
22. Mr. Giri has submitted also that as per PW10, PW3 and PW-9, they reached at the disclosed spot near Shantivan in a private Santro Car at 12.50 p.m. and PW10 states that he along with the accused left the spot at 05.10 p.m. on his Santro car to the Narcotics Cell SC No. 252/2019 FIR No. 245/2018 PS:Crime Branch 12 (driven by Constable Rohit) and PW-9 left the spot with the said scooty of the accused without completing the formalities of the case at the spot and in the Narcotics Office. PW13 arrested the accused and prepared the arrest memo Ex. PW9/A and as per column no.7 of arrest memo, he informed one Arun Dutt without mentioning his complete address and did not mention the relationship of the said person with the accused as the accused did not know any Arun Dutt; while PW13 lodged a DD entry no.25 (Ex. PW-14/B) in which he stated that arrest information was given to his Khala Beauty W/o Soharab R/o 96-A, DDA Flats, and mentioning the mobile no. 9821373714. Thus, in this way the arrest memo and the DD no. 25 are contrary to each other and did not follow the guidelines of the arrest as per case of D. K. Basu v. State of West Bengal, 1997 (1) SCC 416 by not informing anyone about his arrest and for just legalising their illegal arrest mentioned the name of some Arun Dutt.
23. Mr. Giri has submitted that PW13 stated in his examination-in- chief that he left the office of the Narcotics Cell along with Head Constable Sandeep in a private vehicle for depositing the scooty and personal search items in Malkhana Pushp Vihar, Crime Branch which is corroborated by DD no.25 (Ex.PW14/B) but the perusal of Register no.19 (Ex.PW2/A) which reflects in column no.3, the date of deposit and name of depositor as 26.09.2018 by PW10 who is the First Investigating Officer of the case. It is admitted case of SC No. 252/2019 FIR No. 245/2018 PS:Crime Branch 13 prosecution that PW13 had prepared the personal search memo of the accused and took the scooty and personal search articles of the accused from the PW10 for depositing the same in the Malkhana and this all shows that the entire story of the prosecution regarding going to the alleged spot, apprehension of the accused and alleged recovery at the spot are all fabricated. Further the bare perusal of the personal search memo mentioned in Register no.19 the PW9 left the spot with scooty for the office of Narcotics Cell and thereafter PW13 left with the scooty for depositing the same in private vehicle (the said vehicle number or any detail about it is not given by the prosecution in whole of challan) to Malkhana of Pushp Vihar but in the personal search memo in register no.19 PW2 recorded that the scooty was driven by Rahim @ Lala r/o 96-A, DDA Flats, Shastri Park, which is itself contrary to each other.
24. Mr. Giri has submitted also that as per the prosecution case, all the PWs have stated that Rahim @ Lala was residing at 96-A, DDA Janta Flats, Shastri Park but PW14 collected document i.e. Customer Application Form (Ex. PW-4/A) and the address therein of Rahim @ Lala is mentioned as 90-A; further DW-2 Beauty states that after demise of his parents Rahim and his sister has lived at 90- A, Shastri Park, Delhi from 2004 with her and prior to that they resided at Jhuggi Yamuna Pushta and she proved the Aadhar Card (Ex. DW2/A and Ex DW2/B) in which the address of the accused is mentioned as 90-A and similarly DW1 Mohd. Shahaban (owner SC No. 252/2019 FIR No. 245/2018 PS:Crime Branch 14 of 96-A) stated that he is the owner of the house no. 96-A, and Jumman was residing in his house and he produced a rent agreement (Ex.DW1/A) executed between him and Jumman and he clearly stated that Rahim never resided in his house at 96-A and similarly the statement of DW3 Geeta was recorded and she produced her Aadhar Card (Ex.DW3/A) and she identified the photograph of the deceased Jumman affixed on the rent agreement. This DW have clearly deposed that Rahim resides at 90-A. PW13 wrote a DD No. 25 (Ex. PW14/B) wherein he recorded that Beauty (DW-2) resides at 96-A, Shastri Park, Delhi but this Beauty who was examined as DW2 in the present case stated that she resides at 90-A, Shastri Park, Delhi and she also produced her Aadhar Card of herself and that of Rahim which proves that the PW14 made a wrong DD and all the PWs are repeating parrot like story that everybody from the side of the accused reside at 96-A, DDA Janta Flats, Shastri Park, Delhi which is wrong and false and which proves that the story of the prosecution is false, fabricated and concocted.
25. Mr. Giri has further submitted that in this case the vehicle used is Santro Car no. DL 3C BZ 4571 which was owned by the son of PW10 which was allegedly used for carrying the members of the raiding party from Crime Branch to Nighambodh Ghat being driven by Constable Rohit and the said vehicle was also used by PW13 and both clearly admitted that they did not claim any reimbursements or fuel charges at any point of time. The above facts show that the SC No. 252/2019 FIR No. 245/2018 PS:Crime Branch 15 story of use of the said vehicle is false and fabricated and the case is planted. This point has been discussed in case titled as Ezl Val Okeke @ Val Ezl v. Narcotics Control Bureau, 116 (2005) DLT 399 wherein in para no.12 it is discussed that in the absence of entries in the log book of the official vehicle used by raiding party also casts a shadow of doubt on prosecution case in as much as the Log Books are meant for recording of the movements of the vehicle and if no entries are found there, it becomes doubtful as to whether the vehicle was actually used or not as represented by the prosecution. Further, in another case of Om Parkash v. The State, III (2014) CCR 1 (Del.), the Hon'ble High Court of Delhi in para no.87 has held that Log Book is crucial document which is to be filled properly for corroboration of other evidence. This clearly casts shadows/ doubts in the story of the prosecution.
26. Mr. Giri has submitted that PWs 3, 9, 10 and 13 are the witnesses of the alleged recovery and these PWs especially PW10 admitted that there are SDM Office, schools, missing persons squad are situated in their premises i.e. Narcotics Cell and further stated that near the spot there is Hanuman Mandir, shops, Ran Basera, Parking of Nigham Bodh Ghat, police booth, BSES Office, Residential colony, Priyadarshini colony and he further admitted that he did not call any person from the aforesaid places to join the investigation. But the PW10 did not make any sincere efforts to call and join the public witnesses either on the way from office SC No. 252/2019 FIR No. 245/2018 PS:Crime Branch 16 Narcotics Cell to spot or at the spot. On this point, Mr. Giri has relied upon Kishan Chand v. The State of H.P., 2017 (3) JCC Narcotics; Inder Dev Yadav & Ors. v. State of NCT of Delhi, 2014(3) JCC (Narcotics) 12; Rattan Lal v. The State, 32 (1997) DLT 1; Ritesh Chakravorty v. State of M.P., (2006) 12 SCC 32; Ram Parkash v. The State, 2014 146 GRJ 6219 and Mohd. Masoom & Ors v. State of NCT of Delhi, 219 (2015) DLT 271.
27. Mr. Giri on the basis of facts and circumstances of the case and also in view of the judgments filed in the bunch concluded that the case of the prosecution does not stand proved beyond reasonable doubt and the accused deserve to be acquitted.
Analysis and Conclusion Rule of Classification of Oral Testimonies
28. The Hon'ble Supreme Court in its celebrated judgment in the case of Vadivelu Thevar v. The State of Madras, (1957) SCR 981 made observations:
".....Hence, in our opinion, it is a sound and well- established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely:
(1) Wholly reliable.
(2) Wholly unreliable.
(3) Neither wholly reliable nor wholly unreliable.
SC No. 252/2019 FIR No. 245/2018 PS:Crime Branch 17 In the first category of proof, the court should have no difficulty in coming to its conclusion either way-it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial."
[emphasis supplied]
29. Above mentioned rule of classification of oral testimony into three categories is reiterated by Hon'ble Supreme Court in cases of Rajesh Yadav & Anr. Etc. v. State of U.P., Criminal Appeal Nos. 339-340 of 2014, decided on 04.02.2022; Mahendra Singh and Ors. v. State of M.P., 2022 LiveLaw (SC) 543 and Khema @ Khem Chandra Etc. v. state of Uttar Pradesh, Criminal Appeal No. 1200-1202 of 2022 decided on dated 10.08.2022.
Falsus in uno falsus in omnibus
30. The maxim "falsus in uno falsus in omnibus" is not accepted in India. The grain has to be separated from the chaff to find out the truth from the testimony of the witness. [Reference: Shakila Abdul Gafar Khan (Smt) v. Vasant Raghunath Dhoble and another, (2003) 7 SCC 749; State of Andhra Pradesh v. Pullagummi Kasi Reddy Krishna Reddy alias Rama Krishna Reddy and others, (2018) 7 SCC 623 and Rupinder Singh Sandhu v. State of Punjab SC No. 252/2019 FIR No. 245/2018 PS:Crime Branch 18 and others, (2018) 16 SCC 475].
Proved or Disproved
31. As per section 3 of the Indian Evidence Act, 1872 a fact is said to be "proved" when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. A fact is said to be "disproved" when, after considering the matters before it, the Court either believes that it does not exist, or considers its non- existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist. A fact is said "Not proved" when it is neither proved nor disproved.
32. The Hon'ble Apex Court in case of Rajesh Yadav (supra) has interpreted words proved, disproved and prudent in the following words:
"17.What is important for the court is the conclusion on the basis of existence of a fact by analysing the matters before it on the degree of probability. The entire enactment is meant to facilitate the court to come to an appropriate conclusion in proving a fact. There are two methods by which the court is expected to come to such a decision. The court can come to a conclusion on the existence of a fact by merely considering the matters before it, in forming an opinion that it does exist. This belief of the court is based upon the assessment of the matters before it. Alternatively, the court can consider the said existence as probable from the perspective of a prudent man who might act on the supposition that it exists. The question as to the choice of the options is best left to SC No. 252/2019 FIR No. 245/2018 PS:Crime Branch 19 the court to decide. The said decision might impinge upon the quality of the matters before it.
18. The word "prudent" has not been defined under the Act. When the court wants to consider the second part of the definition clause instead of believing the existence of a fact by itself, it is expected to take the role of a prudent man. Such a prudent man has to be understood from the point of view of a common man. Therefore, a judge has to transform into a prudent man and assess the existence of a fact after considering the matters through that lens instead of a judge. It is only after undertaking the said exercise can he resume his role as a judge to proceed further in the case.
19. The aforesaid provision also indicates that the court is concerned with the existence of a fact both in issue and relevant, as against a whole testimony. Thus, the concentration is on the proof of a fact for which a witness is required. Therefore, a court can appreciate and accept the testimony of a witness on a particular issue while rejecting it on others since it focuses on an issue of fact to be proved. However, we may hasten to add, the evidence of a witness as whole is a matter for the court to decide on the probability of proving a fact which is inclusive of the credibility of the witness. Whether an issue is concluded or not is also a court's domain."
Improvement, contradictions and discrepancies
33. With regard to the law regarding improvement, contradictions and discrepancies which may occur in the deposition of witnesses, Hon'ble Supreme Court in case of State of Madhya Pradesh v. Dal Singh & Ors., Criminal Appeal No.2303 of 2009, decided on 21.05.2013 held at para no. 7:
"So far as the discrepancies, embellishments and improvements are concerned, in every criminal case the same are bound to occur for the reason that witnesses, owing to common errors in observation, i.e., errors of memory due to lapse of time, or errors owing to mental disposition, such as feelings shock or horror that SC No. 252/2019 FIR No. 245/2018 PS:Crime Branch 20 existed at the time to occurrence.
The court must form its opinion about the credibility of a witness, and record a finding with respect to whether his deposition inspires confidence. "Exaggeration per se does not render the evidence brittle. But it can be one of the factors against which the credibility of the prosecution's story can be tested, when the entire evidence is put in a crucible to test the same on the touchstone of credibility." Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of a statement made by the witness at an earlier stage. "Irrelevant details which do not in any way corrode the credibility of a witness cannot be labelled as omissions or contradictions." The omissions which amount to contradictions in material particulars, i.e., which materially affect the trial, or the core of the case of the prosecution, render the testimony of the witness as liable to be discredited.
34. In State Represented by Inspector of Police & another v. Saravanan, (2008) 17 SCC 587, Hon'ble Supreme Court held that while appreciating the evidence of a witness, minor discrepancies on trivial matters without affecting the core of the prosecution case, ought not to prompt the court to reject evidence in its entirety.
35. In Sunil Kumar Sambhudayal Gupta (Dr.) and others v. State of Maharashtra, (2010) 13 SCC 657, while dealing with the issue of material contradictions, the Hon'ble Supreme Court held that while appreciating the evidence, the court has to take into consideration whether the contradictions/omissions had been of such magnitude that they may materially alter the trial; minor contradictions, inconsistencies, embellishments or improvements on trivial matters without affecting the core of the prosecution case should not be made a ground to reject the evidence in its entirety;
SC No. 252/2019 FIR No. 245/2018 PS:Crime Branch 21 the courts have to label the category to which a discrepancy belongs, while normal discrepancy do not corrode the credibility of a party's case, material discrepancy do so.
36. In Mukesh & Anr. v. State for NCT of Delhi & Ors., Criminal Appeal Nos. 607-608 of 2017 decided on 05.05.2017, Hon'ble Supreme Court has referred the above-mentioned cases i.e. Saravanan (supra) and Sunil Kumar Sambhudayal Gupta(supra) in respect of issue pertaining to contradictions etc..
37. In Rajesh Yadav (supra), It was held:
22.On the law laid down in dealing with the testimony of a witness over an issue, we would like to place reliance on the decision of this Court in C. Muniappan v. State of T.N., (2010) 9 SCC 567:
81. It is settled legal proposition ----
82.----
83.----
84.--
"85. It is settled proposition of law that even if there are some omissions, contradictions and discrepancies, the entire evidence cannot be disregarded. After exercising care and caution and sifting through the evidence to separate truth from untruth, exaggeration and improvements, the court comes to a conclusion as to whether the residuary evidence is sufficient to convict the accused. Thus, an undue importance should not be attached to omissions, contradictions and discrepancies which do not go to the heart of the matter and shake the basic version of the prosecution's witness. As the mental abilities of a human being cannot be expected to be attuned to absorb all the details of the incident, minor discrepancies are bound to occur in the statements of witnesses."
SC No. 252/2019 FIR No. 245/2018 PS:Crime Branch 22
38. Hence minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety.
Reverse Burden of Proof
39. The prosecution under the NDPS Act carries a reverse burden of proof with a culpable mental state of the accused. He is presumed to be guilty consequent to recovery of contraband from him, and it is for the accused to establish his innocence unlike the normal rule of criminal jurisprudence that an accused is presumed to be innocent unless proved guilty. But that does not absolve the prosecution from establishing a prima facie case only whereafter the burden shifts to the accused. In Noor Aga v. State of Punjab, (2008) 16 SCC 417 it was observed:
"58. Sections 35 and 54 of the Act, no doubt, raise presumptions with regard to the culpable mental state on the part of the accused as also place the burden of proof in this behalf on the accused; but a bare perusal of the said provision would clearly show that presumption would operate in the trial of the accused only in the event the circumstances contained therein are fully satisfied. An initial burden exists upon the prosecution and only when it stands satisfied, would the legal burden shift. Even then, the standard of proof required for the accused to prove his innocence is not as high as that of the prosecution. Whereas the standard of proof required to prove the guilt of the accused on the prosecution is "beyond all reasonable doubt" but it is "preponderance of probability" on the accused. If the prosecution fails to prove the foundational facts so as to attract the rigours of Section 35 of the Act, the actus reus which is possession of contraband by the accused cannot be said to have been established."
SC No. 252/2019 FIR No. 245/2018 PS:Crime Branch 23 Appreciation of evidence
40. There are three recovery witness examined by the prosecution, namely, PW10 Assistant Sub-Inspector Om Prakash; PW3 Head Constable Yogender and PW9 Head Constable Manoj. PW10 is First Investigating Officer. Sub-Inspector (Retired) Jai Prakash (PW13) is Second Investigating Officer who took investigation on 26.09.2018 after registration of FIR.
41. PW 10, Assistant Sub-Inspector Om Prakash who is First Investigating Officer, was posted in Narcotics Cell, Crime Branch, Dariyaganj, Delhi on 26.09.2018. He deposed that on that day, when he was present in his office at about 11:30 a.m., one secret informer came at his office and informed him that one person by the name of Rahim @ Lala, a resident of DDA Janta Flat, Shastri Park, who used to supply heroin in the area of north east Delhi, would come at the corner of Nigam Bodh Ghat the road leading towards Nigaam Bodh Ghat from Shastri Park side on his scooty bearing registration no. DL13 SV 7153, Honda Activa, in between 01.00 p.m. to 02.00 p.m. to supply heroin to someone, and if raid is conducted he could be apprehended with the receiver of contraband while giving and taking the same. He made enquiry from secret informer, and thereafter produced secret informer before Inspector Sanjay Neolia (PW11), the then Inspector Narcotics Cell, Crime Branch. Inspector Sanjay Neolia, made enquiry from secret informer and after his satisfaction, he went to the office of concerned Assistant SC No. 252/2019 FIR No. 245/2018 PS:Crime Branch 24 Commissioner of Police ('ACP' in short) and informed ACP (PW12) about secret informer. After some time, Inspector Sanjay Neolia, came back to his office and told him that concerned ACP has directed to conduct raid immediately. Thereafter, he (PW10) called Head Constable Yogender (PW3) and Head Constable Manoj (PW9) in his office and informed them about secret information. Thereafter, he lodged DD no.15 (Exhibit PW1/A) regarding secret information for proceedings under section 42 of the NDPS Act, which is bearing his signature at point B.
42. He has further deposed that thereafter, he constituted a raiding party including himself, Head Constable Yogender (PW3) and Head Constable Manoj (PW9) to conduct the raid. Thereafter, he collected field testing kit, IO Kit and electronic weighing machine and thereafter, raiding team left the office of the Narcotics cell in a private Santro car bearing registration no. DL 3C-BZ-4571 which was being driven by Constable Rohit vide DD no. 16 (Ex. PW10/A) at about 12:25 p.m. for conducting raid along with secret informer. Thereafter, they proceeded towards disclosed spot via Nishad Raj Marg and Shantivan Red Light, Ring Road, ISBT and reached at the disclosure spot at about 12:50 p.m.. On the way, he requested 4-5 public persons to join the raiding team at Shantivan Red Light and again requested 5-6 passersby to join the raiding team at near flyover ahead of the ISBT, but none agreed to join the raiding team, and they left after disclosing their genuine problems without SC No. 252/2019 FIR No. 245/2018 PS:Crime Branch 25 disclosing their names and addresses. Due to paucity of time, he could not serve a written notice upon any public persons/passerby who refused to join the raiding team. Upon reaching at the spot, he briefed secret information to the member of raiding team and he got stopped said Santro Car about 20-25 meters prior to the spot. The Constable Rohit remained with the said Santro car with instructions to come to the spot with the car as and when signalled to do so. Thereafter, raiding team took position at the spot within the radius of 15-20 mtrs and secret informer remained with him and they started waiting for the accused.
43. He has further deposed that at about 01:20 p.m., they saw one scooty bearing registration No. DL13SV7153 coming from Shashtri Park side being driven by accused without helmet towards Nigam Bodh Ghat side. Secret informer spotted accused as Rahim @ Lala at a distance 20-25 meters when he was coming towards Nigam Bodh side and thereafter, secret informer left the spot and went towards ISBT side on foot. The accused stopped his scooty on the corner of the Nigam Bodh Ghat on road and parked his scooty at there and thereafter, he took out one brick color bag from inside the dicky of the scooty after opening the same and thereafter, accused sat on the seat of the scooty while carrying said brick colour bag in his hand and started waiting for some one. After 5 minutes, when accused alighted from the scooty and tried to start the scooty, at once, they over powered him. Thereafter, he introduced himself and SC No. 252/2019 FIR No. 245/2018 PS:Crime Branch 26 members of raiding team to accused. Meanwhile, eight-ten public persons gathered there and requested public persons to join the investigation but none agreed and they left the spot without disclosing their names and addresses. Then he signalled to Constable Rohit and he came there along with said Santro Car. He apprised accused regarding above said secret information and upon inquiry, accused revealed his name as Rahim @ Lala.
44. He further deposed that he apprised to accused also about his legal rights by telling him that if he wants his search can be taken in the presence of Gazetted Officer and Magistrate and for that purpose he can be produced before a Magistrate or Gazetted officer, or Magistrate or Gazetted officer can be also called at the spot for his search, if he so desires. He also offered accused that he can take search of the members of raiding team and vehicle of raiding team prior to his search but accused refused to get his search conducted in the presence of Magistrate or Gazetted officer or to take search of raiding team or vehicle of raiding team. However, he made the accused understand about the meaning of Gazetted Officer and Magistrate. Then he prepared a notice (Ex. PW9/E) under section 50 of the NDPS Act along with its carbon copy (Ex. PW3/A) by mentioning aforesaid legal rights of accused which is bearing his signature at point B. He served original notice upon the accused. He wrote down refusal of accused (Ex. PW3/B) on the bottom and backside of the carbon copy of notice under section 50 of the NDPS SC No. 252/2019 FIR No. 245/2018 PS:Crime Branch 27 Act on the dictation of accused as accused was illiterate and he can make only his signature in English language as told by the accused. Refusal of accused is bearing his signature at point C and accused also made his signature in English language below his refusal. After preparation of notice under section 50 of the NDPS Act, he also read over the contents of said notice prior to refusal of accused. PW10 again apprised accused about his aforesaid legal rights but accused again refused to get his search in presence of Gazetted Officer or Magistrate and he told him that he was carrying heroin kept in said brick color bag.
45. He has further deposed that then accused handed over said bag to him. When he checked said bag it was found containing one transparent polythene pouch with its mouth tied with rubber band containing pink colour powdery substance. Then he took out said transparent polythene pouch from the bag and after removing rubber band he took out small quantity of said pink colour powdery substance and tested the same on field testing kit and the same was found to be heroin. Then he weighed recovered heroin with polythene with the help of electronic machine and it was found to be 280 grams. Then he drew two samples of 5 grams each from the recovered contraband and kept the same in two separate small polythene pouches and same were tied with rubber band then he converted the same into two separate white colour cloth pullanda and gave Mark A and B. The remaining quantity of contraband was SC No. 252/2019 FIR No. 245/2018 PS:Crime Branch 28 put back into said brick colour bag and converted the same into white colour cloth pullanda and he gave Mark C to it. He filled up FSL form at the spot. Thereafter, he sealed all three pullanda i.e. Mark A, B and C with the seal of '8CPSNBDELHI'. He also put the impression of said seal on FSL form. He handed over the seal to Head Constable Manoj, after use. Then he took entire case property into police possession vide seizure memo (Ex. PW3/C).
46. He further deposed that then he took cursory search of the body of accused but nothing could be recovered during search from the possession of accused. He prepared nil recovery memo (Ex.PW3/D) in this respect. Thereafter, he conducted search of said scooty but nothing could be recovered from inside the said scooty. He seized the said scooty vide seizure memo (Ex. PW3/E). Then he prepared rukka (Ex. PW10/A) bearing his signature at point A earlier marked as Mark A. He handed over rukka to Head Constable Yogender (PW3) for registration of FIR along with all three pullandas i.e. Mark A, B & C and carbon copy of seizure memo with direction that he has to produce rukka before duty officer of Police Station, Crime Branch, Pushp Vihar and all three pullandas alongwith carbon copy of seizure memo to be produced before SHO, Crime Branch, Pushp Vihar. Thereafter, Head Constable Yogender (PW3) left the spot at about 05:00 pm for Police Station, Crime Branch, Pushp Vihar. Thereafter, at about 05:10 p.m., he along with accused left the spot for the office of Narcotics Cell, Crime Branch by said SC No. 252/2019 FIR No. 245/2018 PS:Crime Branch 29 Santro Car which was being driven by Constable Rohit, and Head Constable Manoj left the spot with the said scooty of accused for bringing the same to the office of Narcotics Cell, Crime Branch.
47. He further deposed that in the office of Narcotics Cell, Crime Branch he handed over the custody of accused along with original seizure memo and other documents to Second Investigating Officer Sub-Inspector Jai Prakash (PW13 but wrongly written as PW14). He also handed over the possession of scooty along with key to said PW13 (Second Investigating Officer). Thereafter, he along with PW13 came back at the spot where PW13 prepared site plan (Ex.PW10/B) at his instance. Thereafter, they came back at the office of Narcotics Cell, Crime Branch where PW13 arrested accused vide arrest memo (Ex. PW9/A), carried out personal search of accused as per personal search memo (Ex. PW9/B), wherein rupees 340/- and one original notice under section 50 of the NDPS Act was found.
48. He has further deposed that on 27.09.2018 he prepared report under section 57 of the NDPS Act regarding recovery of heroin from the possession of accused and submitted the same before Inspector Sanjay Neolia (PW11), Narcotics Cell who forwarded the same to concerned ACP (PW12) which is Ex. PW1/C. On 28.09.2018, Head Constable Manoj handed over seal to him in the presence of PW13 (Second Investigating Officer), who prepared a SC No. 252/2019 FIR No. 245/2018 PS:Crime Branch 30 seal handing over memo (Ex. PW9/D).
49. In cross-examination he stated that he did not ask secret informer about the ownership of said scooty. He do not remember exactly whether he had checked inside dickey of the said Scooty or not. Again said so far as he recollect during checking of dickey, he found first-aid kit and one polythene inside the dickey of said Scooty. He did not verify about the status of owner of the said Scooty. He did not verify actual address of the accused. It is incorrect to suggest that accused Rahim @ Lala was in fact residing at House No.90A, DDA Flats, Shastri Park, North East, Delhi, which address is mentioned in his Adhar Card also and were never residing at the alleged address mentioned in copy of RC Ex.PX. It is correct that the said Jumman has since passed away. It is also correct that the said Jumman was in custody in connection with the criminal case. I did not make any enquiry in this respect that as to how said Scooty came into possession of accused Rahim @ Lala. It is further wrong to suggest that accused Rahim @ Lala was not apprehended at the spot or that he was apprehended from a Biryani shop situated in front of the house of the accused i.e. 90A, DDA Flats, Shastri Park, North East, Delhi. It is further wrong to suggest that the said Scooty was planted upon the accused after lifting in front of the house of said Jumman where it was lying dumped. I did not make any DD Entry in this respect that no Government vehicle was available on 26.09.2018. I cannot admit or deny the suggestion SC No. 252/2019 FIR No. 245/2018 PS:Crime Branch 31 that on 26.09.2018 there were three Government vehicles standing in the Narcotics Cell, Crime Branch Office. The private vehicle bearing registration No. DL-3CBZ-4571 make Hyundai Santro which was used by me on 26.09.2018 registered in the name of my son.
50. Head Constable Yogender (PW3) and Head Constable Manoj (PW9) were also member of raiding team who recovered the heroin from the accused on 26.09.2018. They both were posted at Narcotics Cell, Crime Branch, Old Kotwali, Darya Ganj, Delhi. They have corroborated the testimonies of PW10 regarding calling them by PW10, sharing secret information to them by PW10, taking IO bag, field testing kit, electronic weighing machine by PW10, leaving through private vehicle bearing no. DL 3CBZ 4571 vide DD No.16 along with the secret informer and Constable Rohit (driver), reaching at about 12:50 p.m., near the said information spot, requesting to 4-5 public persons by PW10 to join the raiding party before the spot and after crossing the ISBT flyover but refusal by said persons, taking position near spot spot, coming of accused on said scooty at about 1:20 p.m, stopping his scooty by accused on the corner of the flyover that leads towards Shastri Park to Nigam Bodh Ghat, taking out one pink /brick colour polythene from the dickey of the said scooty by him and waiting for five minutes by accused and apprehending by team when he started proceeding from there on his scooty, telling him about about the secret information and likelihood SC No. 252/2019 FIR No. 245/2018 PS:Crime Branch 32 of heroin being recovered from him; telling him also about taking his personal search; requesting 8-10 persons to join the investigation but refusing by them, informing accused about taking his search in the presence of a Gazetted Officer or a Magistrate if he wants and further informing about producing producing him before Gazetted Officer or Magistrate or calling either of them at the spot, informing him about taking the search of the police party as well as vehicle by him, about refusal of accused for same, serving notice under section 50 of the NDPS Act upon him and handed over the original notice to him, explaining the contents thereof to him, handing over the said packet which he was carrying in his right hand to the PW10 and checking the said bag / packet and foundindg one transparent polythene containing pink colour powder, checked the said powder after opening the said polythene and testing it through field testing kit by PW10 and founding the same to be heroin, weighting the same on the electronic weighing machine and found it to be 280 grams, drawing two samples of five grams each and kept the same in small polythenes, converting into pullandas marking them as Mark A and B, converting the remaining heroin into pullanda also and marking as Mark C, filling FSL form, sealing the said three pullandas with the seal of 8CPSNBDELHI and putting same seal impression on the FSL form, handing over seal after use by PW10 to PW9, seizing the said pullandas vide seizure memo Ex.PW3/C, conducting the cursory search of the accused and preparing recovery memo Ex.PW3/D, searching the scooty and seized the same vide SC No. 252/2019 FIR No. 245/2018 PS:Crime Branch 33 seizure memo Ex.PW3/E, prepared rukka by PW10 and handed over the same to PW3 along with three sealed pullandas, FSL form, carbon copy of seizure memo of heroin and instructing him to hand over the rukka to the Duty Officer for registration of FIR and also directing him to produce said pullandas along with FSL form and carbon copy of seizure memo of heroin before the SHO for compliance under section 55 of the NDPS Act.
51. PW3 apart from the said corroboration, has deposed that at about 05.00 p.m, he left the spot and reached at Police Station, Crime Branch by auto and handed over the rukka to Duty Officer, Head Constable Poonam (PW5) for registration of FIR. Duty Officer (PW5) has corroborated the this testimonies of PW3. PW3 has further deposed that at about 06.50 p.m, he produced the above said pullandas, seizure memo and FSL form before the Inspector Satender Sangwan (PW8), SHO, Crime Branch in his office. Thereafter, SHO called the Duty Officer and mentioned the FIR on the said pullandas and also mentioned the details and same was sealed with the seal of SS. This testimonies of PW3 has been corroborated by Inspector Satender Sangwan (PW8). He has further deposed that at about 07.00 p.m, he informed to his office i.e. Narcotics Cell, Crime Branch Old Kotwali, Delhi about the registration of the case vide FIR No. 245/2018 and requested to send Sub-Inspector Jai Prakash (PW13) to the spot for further investigation. Thereafter, SHO (PW8) called the MHC(M) Assistant SC No. 252/2019 FIR No. 245/2018 PS:Crime Branch 34 Sub-Inspector Jag Nagarin (PW2) and handed over the above said pullandas, seizure memos and FSL form to him and he made an entry in register no. 19 and SHO signed the same. Thereafter, Duty Officer (PW5) handed over to him computerized FIR along with rukka and he went to the Narcotics Cell, Crime Branch Office on a TSR. After reaching their, he handed over the above said computerized FIR and rukka to Sub-Inspector Jai Prakash (PW13).
52. PW9 (Head Constable Manoj) apart from said corroboration, has deposed also that PW10 handed over seal to him after use. He brought scooty to the office of Narcotics Cell, Crime Branch by driving the same. Second Investigating Officer (PW13) left the office on the scooty of accused along with personal search articles for depositing the same in Malkhana, Police Station Pusph Vihar, Delhi along with Constable Rohit who was driving Santro Car. On 28.09.2011, he handed back said seal to First Investigating Officer (PW10) in the presence of Second Investigating Officer (PW13) which was handed over to him by PW10 on 26.09.2018 after sealing and seizure of case property. PW13 prepared handing over memo of seal in this respect which is Ex. PW-9/D.
53. All the three recovery witnesses (PW3, PW9 and PW10) have identified case properties i.e. the sample Mark A as Ex.P1, sample Mark B as Ex.P2, sample Mark C as Ex.P3, Scooty bearing registration No. DL-13SV-7153 make Honda Activa as Ex.PW3/F, SC No. 252/2019 FIR No. 245/2018 PS:Crime Branch 35 notice under section 50 of the NDPS as Ex. PW-9/E. Further, PW9 has identidied key of said Scooty as Ex.PX.
54. Rajiv Vashisht (PW4) is Nodal Officer, Bharti Airtel Ltd., New Delhi, who has proved customer application form of mobile phone no. 9667816881 as Ex. PW4/A. He has proved also that said mobile phone no. 9667816881 was registered in the name of Raheem (accused) He has also proved CDR (Call Detail Records) of said mobile number from 01.09.2018 to 26.09.2018 as Ex. PW4/B, and the certificate under section 65B of the Evidence Act as Ex. PW4/C and the location chart with reference to the said mobile phone number 9667816881 as Ex.PW4/D.
55. Head Constable Poonam (PW5) was working as duty officer on 26.09.2018 from 08.00 a.m. to 08.00 p.m. He deposed that at about 06:40 p.m., Head Constable Yogender (PW3) brought rukka sent by Assistant Sub-Inspector Om Prakash (PW10), on the basis of which she got registered present FIR No. 245/2018 by getting it typed on computer through computer operator. She took the print out of the FIR immediately before up-loading the same on the website. The copy of said FIR has been marked as Ex PW5/A which bearing her signatures at point A. She made her endorsement Ex PW5/B bearing DD No.15 on the rukka Mark A. She issued certificate under Section 65B of Evidence Act which is Ex PW5/C and bears her signatures at point A. After registration of FIR, the SC No. 252/2019 FIR No. 245/2018 PS:Crime Branch 36 copy of the same was given to Head Constable Yogender (PW3) for handing over the same to Sub-Inspector Jai Prakash (PW13) for investigation. There is nothing in her cross-examination against the case of prosecution.
56. From the deposition of PW5, it has been proved that she was duty officer on 26.09.2018 from 08.00 a.m. to 08.00 p.m.; that on the basis of rukka brought by PW3, which was sent by PW10, she got registered present FIR No. 245/2018 which is Ex.PW5/A; that her endorsement Ex PW5/B bearing DD No.15 on the rukka is Mark A; that she issued certificate under Section 65B of Evidence Act which is Ex PW5/C; that after registration of FIR, the copy of the same was given to PW3 for handing over the same to PW13 for investigation.
57. Assistant Sub-Inspector Jag Narain (PW2) has deposed that on 26.09.2018, he was working as MHC(M) at Police Station, Crime Branch, Pushp Vihar. On that day, Inspector Satender Sangwan, Station House Officer (SHO), Police Station, Crime Branch had called him in his office and handed over three sealed pulandas bearing the seals of 8CPSNBDELHI to him and he counter sealed all three pullandas with his seal i.e SS along with FSL form. Pullandas were having Mark A, B and C. PW8 also handed over copy of seizure memo having mentioned case particulars and his signature to him for depositing in malkhana. PW2 made entry in SC No. 252/2019 FIR No. 245/2018 PS:Crime Branch 37 register no.19 at serial no. 4264 in this respect which is Ex.PW2/A. On same day at about 12:05 a.m, Assistant Sub-Inspector Jai Prakash (PW13) came at Police Station, Crime Branch and he deposited articles pertaining to personal search of accused Rahim @ lala i.e. original notice under section 50 of the Act, rupees 340/- and one Scooty bearing registration no. DL 13-B 7153 along with key in the malkhana. He made entry at serial no. 4265 in register no.19 in this respect, copy of which is Ex.PW2/B.
58. He (PW2) futher deposed that on 28.09.2018, on the direction of the said SHO (PW8), he handed over one pullanda i.e. Mark A along with FSL form and photocopy of seizure memo and FIR to Constable Ankush for depositing the same at FSL, Rohini vide RC No. 543/21/18, copy of the same is Ex.PW2/C. Accordingly, Constable Ankush deposited the same with FSL vide FSL no. FSL- 2018/CHE/9084 dated 28/09/2018 and handed over copy of acknowledgment issued to him which is Ex.PW2/D. He deposed further that Exhibits/case property were intact while remained in his custody. He further deposed that on 19.12.18 Head Constable Nihal collected FSL result and parcels duly sealed with the seal of FSL Delhi and deposited the same in malkhana and he mentioned aforesaid fact in register no.19 from point A to A1 on Ex.PW2/A. He handed over FSL result to the Investigating Officer.
SC No. 252/2019 FIR No. 245/2018 PS:Crime Branch 38
59. In cross-examination he could not remember as to how he was called in the office of the then SHO (PW8) telephonically or otherwise. He was called at around 07.15 p.m.. When he reached in the office of SHO, Head Constable Yogender (PW3) was already present. Inspector Satender Sangwan (PW8) had already put his counter seal on the pullandas and wrote the particulars of the case before him (PW2) reaching in the office. He saw that FSL form was original in its nature and it was filled up on both sides. He had gone through the contents of seizure memo. He has admitted that column no.3 of register no.19 is provided for mentioning name of depositor; that column no.3 of register no.19 mentions the name of Assistant Sub-Inspector Om Prakash (PW10). He voluntarily clarified that scooty was recovered by Assistant Sub-Inspector Om Prakash (PW10) and its seizure memo was prepared by him and therefore, his name is mentioned in column no.3. Sub-Inspector Jai Parkash (PW13) did not meet him personally on 28.09.2018 before sending samples to FSL. SHO (PW8) had directed him (PW2) that sample will be sent to FSL through Constable Ankush, orally. SHO did not hand over his seal to him (PW2) after use.
60. Inspector Sanjay Neolia (PW11) deposed that on 26.09.2018, he was posted as Inspector in Narcotic Cell, Crime Branch, Delhi and and at about 11:45 a.m., Assistant Sub-Inspector Om Prakash (PW10) came to his office along with the informer and gave information that one person, namely, Rahim @ Lala r/o DDA Flats, SC No. 252/2019 FIR No. 245/2018 PS:Crime Branch 39 Shastri Park, Delhi is indulged in supplying of heroin in North East and adjoining areas. He further informed him that on that day Rahim @ Lala will be coming from the side of Shastri Park Yamuna Bridge leading to Nigam Bodh Ghat between 01:00 p.m. to 02:00 p.m. on Activa Scooty for supplying of heroin. He made inquiry from the informer and after getting himself satisfied, passed on the information to R. K. Ojha, ACP, Narcotic Cell (who is PW12), on phone who directed him to conduct raid and take necessary action. Thereafter, he directed Assistant Sub-Inspector Om Prakash (PW10) to constitute a raiding team. On his directions, said Om Prakash formed a raiding team comprising of himself, Head Constable Joginder (It appears that Yogender is wrongly written as Joginder) and Head Constable Manoj Kumar (PW9). PW10 lodged the said information in Daily Diary Register vide DD No.15 (Ex.PW1/A) and forwarded the copy of the same to him for compliance of section 42 of the NDPS Act which he forwarded to said ACP (PW12). The said DD is bearing his signature at point B. Thereafter, PW10 along with raiding team and the informer left the office in a private car which was being driven by Constable Rohit at about 12:25 p.m.. He (PW10) also took along with him the IO bag, field testing kit and electronic weighing machine.
61. PW11 deposed also that on the same day, at about 10:20 p.m., PW10 and PW13 produced accused Mohd. Rahim @ Lala before him and informed him about the recovery of 280 gram heroin from SC No. 252/2019 FIR No. 245/2018 PS:Crime Branch 40 the possession of the accused. He made enquiry from the accused and made himself satisfied with the recovery. He further deposed that on 27.09.2018, PW10 and PW13 produced Special Reports (Ex.PW1/C) under Section 57 of NDPS Act to him which he forwarded for ACP, Narcotic Cell (ACP is PW12). Said report bears his signatures at point C. The report of PW13 is Ex.PW1/D bearing his signatures at point B. There is nothing in his cross-examination against the case of prosecution.
Non-compliance of Section 52A
62. It is admitted position that present case was registered on 26.09.2018 i. e. after two years and nine months of passing judgment in Mohan Lal (supra), which was delivered on 28.01.2016 and but proceeding under section 52 A of the NDPS Act was not conducted in the present case. Mr. Giri, learned counsel for the accused relying on Mohan Lal (supra), Air Customs (supra), Okafor Chukwuka Ugochukwu (supra) and Thounaojam Punima Singh (supra), contended that said proceeding under section 52A of the NDPS Act is mandatory but same is not complied with and therefore, same is fatal to the case of prosecution. On the other hand, learned Additional Public prosecutor relying upon Ramchandra (supra), submitted that the provisions under section 52A of the NDPS has not been complied with in the present case but same does not affects case of prosecution adversely because same is not mandatory and its non-compliance does not vitiate the trial and SC No. 252/2019 FIR No. 245/2018 PS:Crime Branch 41 police has also independent power of taking sample.
63. In respect of section 52A of the NDPS Act, Hon'ble Supreme Court in case of Mohan Lal (surpa), held/observed:
"12. Section 52-A(1) of the NDPS Act, 1985 empowers the Central Government to prescribe by a notification the procedure to be followed for seizure, storage and disposal of drugs and psychotropic substances. The Central Government has in exercise of that power issued Standing Order No. 1 of 1989 which prescribes the procedure to be followed while conducting seizure of the contraband. Two subsequent standing orders one dated 10-5-2007 and the other dated 16-1-2015 deal with disposal and destruction of seized contraband and do not alter or add to the earlier standing order that prescribes the procedure for conducting seizures. Para 2.2 of Standing Order No. 1 of 1989 states that samples must be taken from the seized contraband on the spot at the time of recovery itself. It reads:
"2.2. All the packages/containers shall be serially numbered and kept in lots for sampling. Samples from the narcotic drugs and psychotropic substances seized, shall be drawn on the spot of recovery, in duplicate, in the presence of search witnesses (panchas) and the person from whose possession the drug is recovered, and a mention to this effect should invariably be made in the panchnama drawn on the spot."
13. Most of the States, however, claim that no samples are drawn at the time of seizure. Directorate of Revenue Intelligence is by far the only agency which claims that samples are drawn at the time of seizure, while Narcotics Control Bureau asserts that it does not do so. There is thus no uniform practice or procedure being followed by the States or the Central agencies in the matter of drawing of samples. This is, therefore, an area that needs to be suitably addressed in the light of the statutory provisions which ought to be strictly observed given the seriousness of the offences under the Act and the punishment prescribed by law in case the SC No. 252/2019 FIR No. 245/2018 PS:Crime Branch 42 same are proved. We propose to deal with the issue no matter briefly in an attempt to remove the confusion that prevails regarding the true position as regards drawing of samples.
14. Section 52-A as amended by Act 16 of 2014, deals with disposal of seized drugs and psychotropic substances. It reads:
"52-A.Disposal of seized narcotic drugs and psychotropic substances.--(1) The Central Government may, having regard to the hazardous nature of any narcotic drugs or psychotropic substances, their vulnerability to theft, substitution, constraints of proper storage space or any other relevant considerations, by notification published in the Official Gazette, specify such narcotic drugs or psychotropic substances or class of narcotic drugs or class of psychotropic substances which shall, as soon as may be after their seizure, be disposed of by such officer and in such manner as that Government may, from time to time, determine after following the procedure hereinafter specified.
(2) Where any narcotic drug or psychotropic substance has been seized and forwarded to the officer in charge of the nearest police station or to the officer empowered under Section 53, the officer referred to in sub-section (1) shall prepare an inventory of such narcotic drugs or psychotropic substances containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs or psychotropic substances or the packing in which they are packed, country of origin and other particulars as the officer referred to in sub-section (1) may consider relevant to the identity of the narcotic drugs or psychotropic substances in any proceedings under this Act and make an application, to any Magistrate for the purpose of--
(a) certifying the correctness of the inventory so prepared; or
(b) taking, in the presence of such Magistrate, photographs of such drugs or substances and certifying SC No. 252/2019 FIR No. 245/2018 PS:Crime Branch 43 such photographs as true; or
(c) allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn.
(3) When an application is made under sub-section (2), the Magistrate shall, as soon as may be, allow the application.
(4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872) or the Code of Criminal Procedure, 1973 (2 of 1974), every court trying an offence under this Act, shall treat the inventory, the photographs of narcotic drugs, psychotropic substances, controlled substances or conveyances and any list of samples drawn under sub-section (2) and certified by the Magistrate, as primary evidence in respect of such offence."
15. It is manifest from Section 52-A(2)(c) (supra) that upon seizure of the contraband the same has to be forwarded either to the officer-in-charge of the nearest police station or to the officer empowered under Section 53 who shall prepare an inventory as stipulated in the said provision and make an application to the Magistrate for purposes of (a) certifying the correctness of the inventory, (b) certifying photographs of such drugs or substances taken before the Magistrate as true, and (c) to draw representative samples in the presence of the Magistrate and certifying the correctness of the list of samples so drawn.
16. Sub-section (3) of Section 52-A requires that the Magistrate shall as soon as may be allow the application. This implies that no sooner the seizure is effected and the contraband forwarded to the officer-in-charge of the police station or the officer empowered, the officer concerned is in law duty-bound to approach the Magistrate for the purposes mentioned above including grant of permission to draw representative samples in his presence, which samples will then be enlisted and the correctness of the list of samples so drawn certified by the Magistrate. In other words, the process of drawing of samples has to be in the presence and under the supervision of the Magistrate and the entire exercise has to be certified by him to SC No. 252/2019 FIR No. 245/2018 PS:Crime Branch 44 be correct.
17. The question of drawing of samples at the time of seizure which, more often than not, takes place in the absence of the Magistrate does not in the above scheme of things arise. This is so especially when according to Section 52-A(4) of the Act, samples drawn and certified by the Magistrate in compliance with sub-sections (2) and (3) of Section 52-A above constitute primary evidence for the purpose of the trial. Suffice it to say that there is no provision in the Act that mandates taking of samples at the time of seizure. That is perhaps why none of the States claim to be taking samples at the time of seizure.
18. Be that as it may, a conflict between the statutory provision governing taking of samples and the Standing Order issued by the Central Government is evident when the two are placed in juxtaposition. There is no gainsaid that such a conflict shall have to be resolved in favour of the statute on first principles of interpretation but the continuance of the statutory notification in its present form is bound to create confusion in the minds of the authorities concerned instead of helping them in the discharge of their duties. The Central Government would, therefore, do well, to re-examine the matter and take suitable steps in the above direction.
19. Mr Sinha, learned Amicus Curiae, argues that if an amendment of the Act stipulating that the samples be taken at the time of seizure is not possible, the least that ought to be done is to make it obligatory for the officer conducting the seizure to apply to the Magistrate for drawing of samples and certification, etc. without any loss of time. The officer conducting the seizure is also obliged to report the act of seizure and the making of the application to the superior officer in writing so that there is a certain amount of accountability in the entire exercise, which as at present gets neglected for a variety of reasons. There is in our opinion no manner of doubt that the seizure of the contraband must be followed by an application for drawing of samples and certification as contemplated under the Act. There is equally no doubt that the process of making any such application and resultant sampling and certification cannot be left to the whims of the officers concerned. The scheme of the Act in general and Section 52-A in particular, does not brook any delay in the matter of making SC No. 252/2019 FIR No. 245/2018 PS:Crime Branch 45 of an application or the drawing of samples and certification. While we see no room for prescribing or reading a time-frame into the provision, we are of the view that an application for sampling and certification ought to be made without undue delay and the Magistrate on receipt of any such application will be expected to attend to the application and do the needful, within a reasonable period and without any undue delay or procrastination as is mandated by sub-section (3) of Section 52- A (supra). We hope and trust that the High Courts will keep a close watch on the performance of the Magistrates in this regard and through the Magistrates on the agencies that are dealing with the menace of drugs which has taken alarming dimensions in this country partly because of the ineffective and lackadaisical enforcement of the laws and procedures and cavalier manner in which the agencies and at times Magistracy in this country addresses a problem of such serious dimensions.
xxxx xxxx xxxx 31.1. No sooner the seizure of any narcotic drugs and psychotropic and controlled substances and conveyances is effected, the same shall be forwarded to the officer in charge of the nearest police station or to the officer empowered under Section 53 of the Act. The officer concerned shall then approach the Magistrate with an application under Section 52-A(2) of the Act, which shall be allowed by the Magistrate as soon as may be required under sub-section (3) of Section 52-A, as discussed by us in the body of this judgment under the heading "seizure and sampling". The sampling shall be done under the supervision of the Magistrate as discussed in Paras 15 to 19 of this order."
64. In case of Arvind Yadav in JC Through his Pairokar v. Govt of NCT Through Standing Counsel, Bail Appl N. 1416/2021 Hon'ble Delhi High Court relying on Mohan Lal (supra) held/observed:
"11. As noted by the Hon'ble Supreme Court Standing Order 1 of 1989 deals with the procedure to be followed while conducting the SC No. 252/2019 FIR No. 245/2018 PS:Crime Branch 46 seizure of the contraband while the other two Standing Orders dated 10th May, 2007 and 16th January, 2015 deal with the disposal and destruction of the contraband and do not add to the earlier Standing Order which prescribe for seizure at the time of recovery and has no effect on the first Standing Order. Supreme Court further noted that the claim of most of the States were that no samples were drawn at the time of seizure and sealing of the case property and Directorate of Revenue Intelligence was the only agency which claimed that samples are drawn at the time of seizure. Thus there was no uniform practice or procedure being followed by the States or Central agencies in the matter of drawing samples. It is in the light of these facts referring to Section 52A of the NDPS Act which deals with the disposal of the seized narcotic drugs and psychotropic substances that the Supreme Court noted that after the seizure of the narcotic drug or psychotropic substance is made the officer incharge will as soon as possible prepare an inventory of such narcotic drugs or psychotropic substance containing the details relating to their description, quantity, quality, mode of packaging, marks, identifying particulars etc. and thereafter file an application to the Magistrate for drawing of the samples. In para-17 of the report Supreme Court further noted that considering the provisions of Section 52A (4) of the NDPS Act which provides that samples to be drawn and certified by the Magistrate in compliance with sub-sections (2) and (3) of Section 52A would constitute primary evidence for the purpose of the trial. Hence the question of drawing of samples at the time of seizure which often takes place in the absence of a Magistrate does not fall into the scheme of the Act.
12. Section 52A was inserted by the Amendment Act of 1989 w.e.f. 29th May, 1989. The provision relates to the disposal of the seized narcotic drugs and psychotropic substance and Section 52A (1) provides that the Central Government may having regard to hazardous nature of any narcotic drugs or psychotropic substance, their vulnerability to their substitution, constraints of proper storage space or any other relevant consideration by notification published in the Official Gazette, specify the narcotic drugs or psychotropic substance which may as soon as after their seizure be disposed of by such officer. Thus the provision relates to disposal of the drug after the same is seized so as to rule out substitution, misuse and being hazardous. It is not unknown that applications under Section 52A NDPS Act are also filed at the stage of appeal seeking permission of the Court to dispose of the narcotic drugs and psychotropic substance. The procedure prescribed under Section 52A NDPS Act SC No. 252/2019 FIR No. 245/2018 PS:Crime Branch 47 and as ordained by Supreme Court in Mohan Lal (supra) is required to be mandatorily followed however, the issue in the present case is whether non-compliance of this procedure which is applicable for disposal of the narcotic drugs and psychotropic substances would vitiate the trial in case immediately on seizure samples are drawn in the absence of a Magistrate even before they are deposited in the malkhana for being sent to FSL to seek a report as to the nature of the contraband for the purposes of filing the charge-sheet. The decision in Mohan Lal (supra) does not canvas that the procedure followed by the investigating agencies like the Directorate of Revenue Intelligence which takes samples on the spot resulted in an illegality so as to vitiate the trial. Conscious of the complicity of the matter, Supreme Court in para 18 of the report in Mohan Lal (supra) noted that there is no gainsaid that such a conflict shall have to be resolved in favour of the statute on first principles of interpretation but the continuance of the statutory notification in its present form is bound to create confusion in the minds of the authorities concerned instead of helping them in the discharge of their duties. The Supreme Court thus directed the Central Government to re-examine the matter and take suitable steps in the above direction. Needless to note that till date no further amendments to the statutory provision or by rescinding the Standing Order has been brought out.
13. By this petition, petitioner seeks bail on the ground of noncompliance of Section 52A of the NDPS Act, however, in view of the fact that the trial does not stand vitiated by drawing the samples at the spot in the absence of a Magistrate for being sent to FSL analysis for filing a appropriate charge-sheet before the Special Court for ascertaining the nature of contraband and whether the sanctity of drawing the samples was vitiated for the non-presence of the Magistrate would be an issue to be seen during the course of trial, hence this Court finds no ground to grant bail to the petitioner on this ground."
[emphasis added]
65. Hence, as per Arvind Yadav (supra) wherein Mohan Lal (supra) was also noticed, non-compliance of section 52A of the NDPS Act, the trial does not stand vitiated by drawing the samples at the spot in the absence of a Magistrate for being sent to FSL SC No. 252/2019 FIR No. 245/2018 PS:Crime Branch 48 analysis; whether the sanctity of drawing the samples was vitiated for the non-presence of the Magistrate would be an issue to be seen during the course of trial. Meaning thereby, non-compliance of section 52A of the NDPS Act does not vitiate trial. And further, whether the sanctity of drawing the samples was vitiated for the non-presence of the Magistrate would be an issue to be seen during the course of trial. Hon'ble Delhi High Court refused to grant bail even on non-compliance of section 52A.
66. In Okafor Chukwuka Ugochukwu (supra), Hon'ble Delhi high Court held/observed on 13.05.2020:-
"60. In view of the aforesaid authoritative decision, it is clear that samples are required to be drawn in compliance with Section 52A of the NDPS Act. It is also relevant to note that NCB had filed an affidavit before the Supreme Court in the aforementioned case affirming that it did not draw samples at the spot. This was noticed by the Supreme Court in Paragraph No. 13 of their decision. Whilst, it is clear that provisions of Section 52A of the NDPS Act are required to be complied with, it is also necessary to observe that the decision in Union of India v. Mohal Lal (supra) was rendered on 28.01.2016 and the seizure in the present case was effected in the year 2010. The Supreme Court had also noticed that there was certain confusion with regard to the said issue and most of the states and central agencies were following different practices. In the circumstances, the sampling of the illicit substance cannot be held to be invalid only for the reason that the samples had been allegedly drawn on the spot. Having stated the above, it is also necessary to observe that a close scrutiny would be required as to the manner in which samples were drawn and had been stored in order to sustain a conviction on the basis of the seizure."
[underlines are mine] SC No. 252/2019 FIR No. 245/2018 PS:Crime Branch 49
67. In Thounaojam Punima Singh (supra) which has been relied upon by Mr. Giri, learned cousel for the accused, Hon'ble Gauhati High Court held that from the mandate of the Apex Court in Mohanlal's case, it is abundantly clear that sample must be taken under the direct supervision of the Magistrate. But, in said case it was not held that accused is entitled to be acquittal on this sole ground. In that case accused was acquitted on several grounds including ground of non-compliance of section 52-A of the NDPS Act.
68. In Ramchandra (supra), Rajasthan High Court held that a perusal of the judgement of Mohan Lal (supra) nowhere reveals that issue as to whether non-compliance of Section 52A would render the investigation vitiated or/and would also lead to ipso facto creating a situation for grant of bail in the teeth of provisions of Section 37 of the Act, was taken up. The said Court was unable to persuade itself to hold that the entire investigation against the petitioner stands vitiated for want of compliance of provisions of section 52A (2)(c) of the NDPS Act as well as direction issued by the Hon'ble Apex Court of India in the case of Mohan Lal (supra) entitling him for benefit of bail oblivious of the stringent provision contained in section 37 of the NDPS Act.
SC No. 252/2019 FIR No. 245/2018 PS:Crime Branch 50
69. Similarly, the Hon'ble High Court of Kerala in case of Pavithran v. State of Kerala, 2018 (1) KLT 517 held that the mere fact that the Investigating Officer has not moved the learned Magistrate under section 52A of the NDPS Act will not in any way affect the case of the prosecution. It was also observed that the very purpose of said provisions is to ensure that the contraband substance is disposed of under the supervision of a Magistrate and if the Magistrate follows the mandate under said provisions, then the certificate issued by him is per se admissible in evidence.
70. The Hon'ble High Court of Uttrakhand vide its judgment dated 8.6.2021 passed in the case of Shakrukh v. State of Uttrakhand, Bail Application No.55 of 2020, while dealing with the direction issued in the case of Mohan Lal (supra), observed that the said direction was also only regulatory in nature and it was a suggestion which was expressed, and it was not a mandate which was determined at that point of time to be adhered in the NDPS cases, at the stage of arrest, seizure or recovery of the contraband."
71. The five-Judge Bench of Hon'ble Supreme Court In case of Mukesh Singh v. State (Narcotic Branch of Delhi), SLP (Criminal) Diary No. 39528/2018, decided on 31.08.2020, held:
"11. Therefore, as such, there is no reason to doubt the credibility of the informant and doubt the entire case of the prosecution solely on the ground that the informant has investigated the case. Solely on SC No. 252/2019 FIR No. 245/2018 PS:Crime Branch 51 the basis of some apprehension or the doubts, the entire prosecution version cannot be discarded and the accused is not to be straightway acquitted unless and until the accused is able to establish and prove the bias and the prejudice. As held by this Court in the case of Ram Chandra (supra) the question of prejudice or bias has to be established and not inferred. The question of bias will have to be decided on the facts of each case [See Vipan Kumar Jain (supra)]. At this stage, it is required to be noted and as observed hereinabove, NDPS Act is a Special Act with the special purpose and with special provisions including Section 68 which provides that no officer acting in exercise of powers vested in him under any provision of the NDPS Act or any rule or order made thereunder shall be compelled to say from where he got any information as to the commission of any offence. Therefore, considering the NDPS Act being a special Act with special procedure to be followed under Chapter V, and as observed hereinabove, there is no specific bar against conducting the investigation by the informant himself and in view of the safeguard provided under the Act itself, namely, Section 58, we are of the opinion that there cannot be any general proposition of law to be laid down that in every case where the informant is the investigator, the trial is vitiated and the accused is entitled to acquittal. Similarly, even with respect to offences under the IPC, as observed hereinabove, there is no specific bar against the informant/complainant investigating the case. Only in a case where the accused has been able to establish and prove the bias and/or unfair investigation by the informant-cuminvestigator and the case of the prosecution is merely based upon the deposition of the informant-cum-investigator, meaning thereby prosecution does not rely upon other witnesses, more particularly the independent witnesses, in that case, where the complainant himself had conducted the investigation, such aspect of the matter can certainly be given due weightage while assessing the evidence on record. Therefore, as rightly observed by this Court in the case of Bhaskar Ramappa Madar (supra), the matter has to be decided on a case to case basis without any universal generalisation. As rightly held by this Court in the case of V. Jayapaul (supra), there is no bar against the informant police officer to investigate the case. As rightly observed, if at all, such investigation could only be assailed on the ground of bias or real likelihood of bias on the part of the investigating officer the question of bias would depend on the facts and circumstances of each case and therefore it is not proper to lay down a broad and unqualified proposition that in every case where the police officer who registered the case by lodging the first SC No. 252/2019 FIR No. 245/2018 PS:Crime Branch 52 information, conducts the investigation that itself had caused prejudice to the accused and thereby it vitiates the entire prosecution case and the accused is entitled to acquittal.
12. From the above discussion and for the reasons stated above, we conclude and answer the reference as under:
I. That the observations of this Court in the cases of Bhagwan Singh v. State of Rajasthan (1976) 1 SCC 15; Megha Singh v. State of Haryana (1996) 11 SCC 709; and State by Inspector of Police, NIB, Tamil Nadu v. Rajangam 61 (2010) 15 SCC 369 and the acquittal of the accused by this Court on the ground that as the informant and the investigator was the same, it has vitiated the trial and the accused is entitled to acquittal are to be treated to be confined to their own facts. It cannot be said that in the aforesaid decisions, this Court laid down any general proposition of law that in each and every case where the informant is the investigator there is a bias caused to the accused and the entire prosecution case is to be disbelieved and the accused is entitled to acquittal;
II. In a case where the informant himself is the investigator, by that itself cannot be said that the investigation is vitiated on the ground of bias or the like factor. The question of bias or prejudice would depend upon the facts and circumstances of each case. Therefore, merely because the informant is the investigator, by that itself the investigation would not suffer the vice of unfairness or bias and therefore on the sole ground that informant is the investigator, the accused is not entitled to acquittal. The matter has to be decided on a case to case basis. A contrary decision of this Court in the case of Mohan Lal v. State of Punjab (2018) 17 SCC 627 and any other decision taking a contrary view that the informant cannot be the investigator and in such a case the accused is entitled to acquittal are not good law and they are specifically overruled."
[underlines are mine]
72. It is pertinent to mention here that in Mohan Lal (supra) it was held that the informant cannot be the investigator and in such a case the accused is entitled to acquittal, but it is not held that in case of non-compliance of section 52A of NDPS Act, prejudiced would SC No. 252/2019 FIR No. 245/2018 PS:Crime Branch 53 be caused to accusd and he would be entitled to acquittal. Further, said view of Mohan Lal (supra) that the informant cannot be the investigator and in such a case the accused is entitled to acquittal, has been specifically overruled by the Hon'ble Constitutional Bench in case of Mukesh Singh (supra).
73. From said abovementioned decisions, I am of the view that non-compliance of section 52A of the NDPS Act does not itself vitiate trial and accused cannot be entitled to acquittal merely because of non-compliance of section 52A. The accused is supposed to establish and prove the bias and the prejudice due to non- compliance of section 52A. As held in the case of Ram Chandra (supra), the question of prejudice or bias has to be established and not inferred. The question of bias will have to be decided on the facts of each case. Hence, this Court is of the view that Investigating Agency was supposed to comply provisions of section 52 A of the NDPS Act. But, in the instant case, said procedure prescribed under Section 52A NDPS Act is not followed by the Investigating Agency. But, the accused has not been able to establish and prove the bias and the prejudice due to non-compliance of section 52A. It is significant to note that there is nothing on the record to show that the police witnesses examined in the present case to prove the search and recovery had any animus or hostility against the accused. It is not elucidated by defence as to why police officials would depose falsely particularly considering the fact that no animosity has SC No. 252/2019 FIR No. 245/2018 PS:Crime Branch 54 been suggested by the defence. Hence, non-compliance of section 52A of the NDPS Act is not fatal to the case of prosecution.
Seal and Entry in Register No. 1974. In the instant case, the testimonies of three recovery witnesses [Head Constable Yogender (PW3), Head Constable Manoj (PW9) and Assistant Sub-Inspector Om Prakash (PW10)], Assistant Sub- Inspector Jag Narain (PW2), Assistant Sub-Inspector Mahesh Chand (PW6), Constable Ankush (PW7), Inspector Satender Sangwan (PW8) and Sub-Inspector (retired) Jai Prakash (PW13) are required to be discussed in respect of issue of seal and of depositing the case properties etc. to Malkhana and then to FSL.
75. PW10 (Assistant Sub-Inspector Om Prakash) is First Investigating Officer. He constituted raiding team. He has testified in examination-in-chief that he sealed all three pullanda i.e. Mark A, B and C with the seal of '8CPSNBDELHI' and put the impression of said seal on FSL form also. He handed over the seal to Head Constable Manoj (PW9) on 26.09.2018, after its use. He did not prepare any seal handing over memo when he handed over seal to PW9. On 28.09.2018, PW9 returned seal to him in the presence of Second Investigating Officer (PW13), who prepared a seal handing over memo (Ex. PW9/D). In cross-examination, he could not remember the date on which the seal which was used by him in the course of investigation, was issued in his name. In respect of said SC No. 252/2019 FIR No. 245/2018 PS:Crime Branch 55 date, testimony of PW6 (Assistan Sub-Inspector Mahesh Chand) is relevant at this juncture. He (PW6) testified that said seal (8CPS/NBDELHI) was issued by him to PW10 on on 25.01.2017. He also made entry in this regard in the official seal issuing register 2017 at serial no. 9. Said register was produced in court during his deposition and he proved said entry no. 9 in Ex.PW6/B. The counsel for the accused chose not to cross-examine PW6.
76. Head Constable Yogender (PW3) who is one of members of raiding team, deposed that PW10 sealed the said three pullandas with the seal of 8CPSNBDELHI and same seal impression was put on the FSL form; that seal after use was handed over to PW9. He further deposed that PW10 prepared rukka and handed over to him the said rukka along with three sealed pullandas, FSL form, carbon copy of seizure memo of heroin and also instructed him to hand over the rukka to the Duty Officer (PW5) for registration of FIR and further, instructed him to produce the said pullandas along with FSL form and carbon copy of seizure memo of heroin to the Station House Officer, (PW8). At about 05.00 p.m., he left the spot and reached at Police Station, Crime Branch by auto and handed over the rukka to Duty Officer (PW5) for registration of FIR. At about 06.50 p.m., he produced the above said pullandas, seizure memo and FSL form before the Station House Officer (PW8) in his office. Thereafter, PW8 called the Duty Officer and mentioned the FIR on the said pullandas and also mentioned the details and same was SC No. 252/2019 FIR No. 245/2018 PS:Crime Branch 56 sealed with the seal of SS. In cross-examination he stated that PW10 handed over the seal to PW9, after use but no handing over memo regarding seal was prepared by PW10.
77. Head Constable Manoj (PW9) who is also one of members of raiding team, deposed that PW10 sealed all three pullanda with the seal of 8CPSNBDELHI and filled up FSL form at the spot and took impression of the seal on the same. PW10 handed over seal to him, after use on 26.09.2018. He (PW9) returned said seal to PW10 in the presence of PW13 (Sub-Inspector Jai Prakash) on 28.09.2011. PW13 prepared handing over memo of seal in this respect which is Ex. PW-9/D. PW9 in his cross-examination, has admitted that that in between 26.09.2018 to 28.09.2018, the seal remained in his possession and the same was not deposited with the MHC (M).
78. Inspector Satender Sangwan (PW8) was posted as Station House Officer at Police Station Crime Branch, Pushp Vihar on 26.09.2018. He stated that on said day when he was present at police station at about 06:50 p.m., Head Constable Yogender (PW3) came in his office and handed over three sealed parcels duly sealed with the seal of "8C PS NB DELHI" marked as Mark A, Mark B and Mark C along with FSL Form and carbon copy of seizure memo, to him. Then he asked about the FIR number from the then Duty Officer (PW5) and thereafter, he mentioned FIR No. 245/2018 on each pullanda, FSL Form and carbon copy of seizure memo. He SC No. 252/2019 FIR No. 245/2018 PS:Crime Branch 57 deposed also that he also called the then MHC (M), Assistant Sub- Inspector Jag Narain (PW2) in his office along with Register No.19. Accordingly, PW2 came in his office. He deposed also that he put his counter seal i.e. 'SS', on all three sealed pullandas and FSL Form. He also put his signature on all three sealed pullandas, FSL Form and made endorsement on carbon copy of seizure memo. Then he asked said MHC(M) to deposit case property in the Malkhana and make entry in Register No.19 in this respect. Accordingly, MHC(M) made entry in said Register regarding depositing of case property in Malkhana on which he (PW8) put his signature. He identified his signature at point A on copy of entries of Register No.19 (Ex.PW2/A). In cross-examination, he stated that he did not hand over his seal to anyone after use.
79. Sub-Inspector Jai Prakash (PW13) is Second Investigating Officer to whom further investigation was handed over on 26.09.2018 at about 07.00 p.m.. He deposed that on 28.09.2018, the sample along with FSL form of this case was sent to the FSL through Constable Ankush (PW7) for seeking the expert opinion. Head Constable Manoj (PW9) handed over seal to Assistant Sub- Inspector Om Prakash (PW10) in his presence and a handing over memo (Ex.PW9/D) in this regard was prepared. There is no cross- examination of PW13 on the point of seal.
SC No. 252/2019 FIR No. 245/2018 PS:Crime Branch 58
80. Assistant Sub-Inspector Jag Narain (PW2) was working as MHC(M) at Police Station, Crime Branch, Pushp Vihar on date of recovery of contraband on 26.09.2018. He deposed that on that day, Inspector Satender Sangwan (PW8) was the Station House Officer, Police Station, Crime Branch. PW8 called him (PW2) in his office and handed over three sealed pulandas bearing the seals of 8CPSNBDELHI to him. PW8 counter sealed all three pullandas with his seal i.e 'SS' along with FSL form. PW8 also handed over copy of seizure memo having mentioned case particulars and his signature to him for depositing in malkhana. He made entry in register no.19 at serial no. 4264 in this respect, which is Ex.PW2/A. He futher deposed that on 28.09.2018, on the direction of the PW8, he handed over one pullanda i.e. Mark A along with FSL form and photocopy of seizure memo and FIR to Constable Ankush (PW7) for depositing the same at FSL, Rohini vide RC No. 543/21/18, copy of which is Ex.PW2/C. Accordingly, Constable Ankush deposited the same with FSL vide FSL no. FSL-2018/CHE/9084 dated 28/09/2018 and handed over copy of acknowledgment issued to him, which is Ex.PW2/D. He deposed further that exhibits/case property were intact while remained in his custody. He in cross- examination, sated that column no.3 of register no.19 is provided for mentioning name of depositor. He has accepted that said column no.3 of register no.19 mentions the name of Assistant Sub-Inspector Om Prakash (PW10). In respect of mentioning the name of PW10 instead of PW8 in said column no.3 of register no.19, he SC No. 252/2019 FIR No. 245/2018 PS:Crime Branch 59 clarified/explained that scooty was recovered by PW10 and its seizure memo was prepared by him and therefore, name of PW10 is mentioned in column no.3. He deposed also that PW13 did not meet him personally on 28.09.2018 before sending samples to FSL. He aslo deposed that PW8 directed him that sample will be sent to FSL through Constable Ankush, orally and further that PW8 did not hand over his (PW8) seal to him (PW2), after use.
81. Constable Ankush (PW7) deposed that on 28.09.2018, he was posted in Narcotic Cell, Crime Branch and on that day, on the direction of Investigating Officer, he took sealed pullanda i.e. Mark A duly sealed with the seal of "8C PS NB DELHI" and "SS" along with FSL Form and copy of seizure memo, from PW2 [MHC (M)] for depositing the same with FSL vide RC No.543/21. Thereafter, he went to FSL Rohini and deposited said exhibits with said documents in FSL Rohini vide acknowledgment No. FSL/2018/CHE/9084 dated 28.09.2018. Thereafter, he came back at Malkhana, Police Station, Crime Branch and handed over copy of RC and acknowledgment to FSL to PW2. He also deposed that exhibits were intact while remained in his custody. In cross-examination he stated that he did not lodge any departure entry regarding going to FSL. He admitted that he did not make his signature in Register No.19 regarding receiving pullandas from MHC (M) for depositing the same with FSL.
SC No. 252/2019 FIR No. 245/2018 PS:Crime Branch 60
82. From the abovementioned testimonies of PW2, PW3, PW6, PW7, PW8, PW9, PW10, PW13 including their cross-examination, it is clear that PW6 issued seal (8CPS/NBDELHI) to PW10 on 25.01.2017. He also made entry in this regard in the official seal issuing register 2017 at serial no. 9. Said entry no. 9 in official seal issuing register 2017 has been proved as Ex.PW6/B. PW3, PW9 and PW10 have proved that PW10 sealed all three pullandas i.e. Mark A, Mark B and Mark C with the seal of '8CPSNBDELHI' and put the impression of said seal on FSL form also. PW10 handed over the seal to PW9, after use on 26.09.2018 but no handing over memo was prepared in this regard. The said seal remained with PW9 till 28.09.2018. On 28.09.2018, PW9 returned seal to PW10 in the presence of PW1 and in respect of this transfer of seal, PW13 prepared a seal handing over memo which has been proved as Ex. PW9/D bearing signatures of PW9, PW10 and PW13. PW3 brought said three sealed parcels (Mark A, Mark B and Mark C) duly sealed with the seal of 8CPSNBDELHI, along with FSL Form and carbon copy of seizure memo on same day i.e. 26.09.2018 and handed over the same to PW8 and after mentioning FIR number on said pullandas etc, PW8 put his counter seal i.e. 'SS' on said pullandas and FSL Form and also put his signature thereon on same day. The seal of SS of PW8 remained with him and he did not hand to any one after use. Hence, two seals were affixed on said three sealed parcels (Mark A, Mark B and Mark C) and FSL Form; one seal (8CPSNBDELHI) was affixed thereon by PW10 after 01.20 p.m. SC No. 252/2019 FIR No. 245/2018 PS:Crime Branch 61 and before 05.00 p.m. on 26.09.2018 at spot, and another seal (SS) was affixed by PW8 on the same day after 06.50 p.m. at Police Station, Crime Branch, Pushp Vihar. PW8 handed over said three sealed pulandas bearing the seals of 8CPSNBDELHI to PW2, MHC(M) and sealed the same with his seal i.e 'SS'. PW2 made entry in register no.19 at serial no. 4264 in this respect, which is Ex.PW2/A. The said exhibits/case property were intact while remained in custody of PW2 as deposed by him. PW2 on 28.09.2018, on the direction of the PW8, handed over one pullanda i.e. Mark A along with FSL form and photocopy of seizure memo and FIR to PW7 for depositing the same at Forensic Science Laboratory (in short 'FSL'), Rohini vide Road Certificate No. 543/21/18. The Road Certificate has been proved as Ex.PW2/C. Then PW7 deposited the pullanda i.e. Mark A along with FSL form, photocopy of seizure memo and FIR with FSL vide FSL No. FSL- 2018/CHE/9084 dated 28/09/2018 to FSL, Rohini, Delhi and thereafter, handed over copy of acknowledgment issued by FSL to PW2. Said acknowledgment has been proved as Ex.PW2/D. The FSL Examination Report/FSL Result dated 18.12.2018 and parcels duly sealed with seal of FSL Delhi were collected by Head Constable Nihal on 19.08.2018 and same was deposited in Malkhana. The fact of depositing the said FSL Result and parcels was mentioned by PW2 in register no. 19 from point A to A1 on Ex.PW2/A. SC No. 252/2019 FIR No. 245/2018 PS:Crime Branch 62
83. It is pertinent to mention here that FSL result is per se admissible under section 293 of the CrPC, and further that the learned counsel for accused had admitted said FSL Result under section 294 of the CrPC. Said FSL result is Ex.PA. It is found mentioned in Acknowledgment (Ex.PW2/D) and FSL Result (Ex.PA) that parcels etc. for FSL was received from Constable Ankush (PW7). From FSL Result also, it has been proved that the Parcel/sample which was Mark A was having two seals ['S.S.' and '8C P.S./N.B. DELHI'] and seals were found intact and tallied as per forwarding authorities specimen seals when it was received in FSL, Rohini, Delhi. It has also been proved from said FSL Result that on Chemical, TLC, GC & GC-MS examinations, Exhibit 'A' was found to contain 'Diacetylmorphine', '6-Monoacetylmorphine', 'Acetylcodeine' 'Trimethoprim' and 'Acetaminophen', and further, Exhibits 'A' was found to contain 'Diacetylmorphine' 3.57 %. It is also clear from result that the remnants of the exibits had been sealed with the seal of "YCP FSL DELHI".
84. Mr. Giri, learned counsel appearing for the accused referring the testimonies of PWs 8, 9 and 10, has contended that no handing over memo of seal was prepared by PW10, but on oral evidence he states that he handed over the seal to PW9 and therefore, it proves that PW10 never handed over the seal to PW9. He has submitted also that PW9 admitted that he did not deposit the seal in the Malkhana. He has further submitted that similarly, PW8 states that SC No. 252/2019 FIR No. 245/2018 PS:Crime Branch 63 he did not handover the seal to any one and therefore, till 28.09.2018 the seal was with the PW10 and PW8. He further submits that PW 10 did not handover the seal to any third person nor PW9 and PW8 deposited the seal with the Malkhana as the CFSL form was never produced before this court and so the tampering of the case property cannot be ruled out. In this regard, judgment passed in case of Mohd. Ibrahim (supra) has been referred by Mr. Giri. But, I do not find any merit in the said submissions of Mr. Giri because in said case the accused was acquitted on several grounds and not on one ground of seal not given to independent witness. In said case it was found that documentary evidence is not in line with the ocular versions given by the witnesses, with regard to handing over of the seals of YPS and SPS by the concerned officers to some third persons which indicate that the sample seals affixed on the pullandas remained in their possession only till the time case property was sent to FSL; that apart there is no cogent evidence there to prove that the CFSL forms, were prepared at the spot and sent to FSL; that PW2 ASI Yeshpal Singh has deposed that after affixing the seal of YPS on the sample pullandas he had handed over the same to PW3 Constable Rakesh Kumar and though PW3 Constable Rakesh Kumar has corroborated this fact but the same is not corroborated from the documentary evidence; that as per PW3 Constable Rakesh Kumar, he had deposited the seal in the Malkhana, however, a perusal of the entries in the stock room register Ex. PW5/A believes this statement because there is no entry SC No. 252/2019 FIR No. 245/2018 PS:Crime Branch 64 in the stock room register in this regard; that PW6 Inspector Satya Pal Singh has not even deposed that he had handed over the seal to some other officials, meaning thereby, seal remained with him.
85. But, in the instant case, it has come on record that seal (8CPSNBDELHI) after use, was handed over by PW10 (First Investigating Officer) to PW9 on day of recovery on 26.09.2018 and PW9 kept said seal with him but he returned the same to PW10 on 28.09.2018 in the presence of PW13 (Second Investigating Officer). It is correct that no handing over memo of seal when it was handed over by PW10 to PW9 on 26.09.2018, was prepared but handing over memo of seal was prepared when seal was returned/handed over by PW9 to PW10 on 28.09.2018 in the presence of PW13. It is also pertinent to mention here that two seals were affixed on said three sealed parcels (Mark A, Mark B and Mark C) and FSL Form by two different officers; one seal (8CPSNBDELHI)/(8C P.S./N.B. DELHI') was affixed thereon by PW10 after 01.20 p.m. and before 05.00 p.m. on day of incident on 26.09.2018 at spot, and another seal (SS)/(S.S.) was affixed by PW8 on the same day after 06.50 p.m. at Police Station, Crime Branch, Pushp Vihar, when same were produced before PW8 (SHO, Police Station, Crime Branch) by PW-
3. The MHC (M), PW2, has proved that said three parcels along with FSL Form etc. were deposited with him and at that time two seals ('8CPSNBDELHI' and 'SS') were were found affixed thereon. PW2 deposed specifically that said exhibits/case property were SC No. 252/2019 FIR No. 245/2018 PS:Crime Branch 65 intact while remained in his custody. There is no effective cross- examination of MHC (M) on the aspect of tempering of seals. He has denied the suggestion that case property was not in sealed condition. Further, PW7 who took the pullanda (Mark A) from MHC(M) and deposited with the FSL, Rohini on 28.09.2018, has specifically deposed that at the time of taking same from MHC(M), same were duly sealed with said two seals. He has also deposed that Exibits were intact while remained in his custody. There no cross- examination of PW7 on the aspect of tempering of seals. From Acknowledgment issued by FSL (Ex.PW2/D) and FSL Result (Ex. PA) also, it is clear that sample/parcel which was received in FSL was having said both the seals and same were found intact. It is not the stand of Mr. Giri that the seal was misused by the investigating officer after sealing of the samples and the case property. There is no cross-examination/effective cross-examination of PW2, PW7, PW 8, PW10 and PW13 on the point of seals on said pullandas/case property. No suggestion has been given to PW2, PW7, PW8, PW10 and PW13 in their respective cross-examination by learned counsel for accused that they have misused/tempered the seal on said parcels or that they have changed the contraband/case property in said three parcels. The only submission of on behalf of accused is that the seal was not given to an independent witness and there was possibility of misuse. Mere possibility of a thing does not cast doubt on the prosecution case. Hence, in the present case, as noted above, there is nothing to indicate that seals were tampered with. In this regard SC No. 252/2019 FIR No. 245/2018 PS:Crime Branch 66 judgment passed by the Hon'ble Delhi High Court in the case of Siddiqua v. Narcotics Control Bureau, 2006 SCC OnLine Del 1553, can be referred, wherein it has been held/observed:
"6. The next argument advanced by learned Counsel for the appellant is that the seal after use was not given to an independent witness and the seal could be misused. It has to be noted that there was no provision under the NDPS Act for handing over of the seal by the investigating officer after use to some independent witness. An investigating officer has to do investigation day out and day in, in several cases. It is not that after every recovery, a new seal has to be got prepared by the investigating officer and the old seal is to be discarded. Counsel for the appellant submitted that the seal movement register has not been produced by the prosecution to show the movement of the seal after used in the case. However, learned Counsel for the appellant failed to show any statutory rule under which any seal movement register is to be maintained by the prosecution. The Court cannot consider some imaginary doubts as the basis of attack on a judgment. It is not the stand of the counsel for the appellant that the seal was misused by the investigating officer after sealing of the samples and the case property. No such suggestion has been given to any of the prosecution witness. The only stand is that the seal was not given to an independent witness and there was possibility of misuse. Mere possibility of a thing does not cast doubt on the prosecution case. In this case, the samples and the case property were sealed with paper slips, containing the signatures of the panch witnesses. These paper slips were found intact by the learned trial court when the case property was produced in the court. Similarly, when the samples were received by the CRCL, the seals were found intact with the paper slips. There is another factor. The samples in this case were sent to CRCL on the very next day i.e. on 26th March, 1998. Any possibility of tampering the seals, therefore, stands ruled out."
[underlines are mine]
86. Mr. Giri contended also that PW-13 (Sub-Inspector Jai Parkash) stated in his examination-in-chief that he left the office of the Narcotics Cell along with Head Constable Sandeep in a private SC No. 252/2019 FIR No. 245/2018 PS:Crime Branch 67 vehicle for depositing the scooty and personal search items in Malkhana, Pushp Vihar, Crime Branch which is corroborated by DD no.25 (Ex. PW-14/B) but the Register no.19 (Ex.PW-2/B) reflects in column no.3 the date of deposit and name of depositor as 26.09.2018 by PW10 (Assistant Sub-Inspector Om Parkash), and therefore, this all shows that the entire story of the prosecution regarding going to the alleged spot, apprehension of the accused and alleged recovery at the spot are all fabricated. I am not agree with this submissions of Mr. Giri that the entire story of the prosecution regarding going to the alleged spot, apprehension of the accused and alleged recovery at the spot are all fabricated due the said mentioning of name of depositor of said scooty etc. in Register no. 19 (Ex. PW2/B). PW13 stated in his examination-in-chief that the scooty along with key as well as the jamatalashi recovered from the accused, was taken to Pushp Vihar, Crime Branch where same was deposited in Malkhana. He in cross-examination stated that the scooty was taken for deposit in Malkhana, Police Station, Crime Branch by himself and Head Constable Sandeep. In respect of mentioning the name of PW10 instead of PW13 in said column no.3 of register no.19 (Ex.PW2/B), PW2, MHC(M), in his cross- examination, clarified/explained that scooty was recovered by PW10 and its seizure memo was also prepared by him and therefore, name of PW10 is mentioned in column no.3. It is pertinent to mention here that this said entry Ex.PW2/B pertains to depositing of articles pertaining to personal search (original notice under section SC No. 252/2019 FIR No. 245/2018 PS:Crime Branch 68 50 of the NDPS Act, rupees 340/-), scooty and its key and not pertaining to contraband and FSL Form. Entry Ex.PW2/A is pertaining to said three parcels containing contraband, FSL Form and copy of seizure memo. The case of Babu (supra) is distinguishable on facts. In the present case there is exaplanation of PW2, MHC(M) regarding mentioning name of PW10 instead of PW13. Further, there were some other infirmities in prosecution evidence in said case of Babu (supra).
87. Mr. Giri has also submitted that the Head Constable Manoj (PW9) left the spot with scooty for the office of Narcotics Cell and thereafter Sub-Inspector Jai Parkash (PW13) left with the scooty for depositing the same in private vehicle to Malkhana of Pushp Vihar, but in the personal search memo in register no.19, Assiatant Sub- Inspector Jag Narain (PW2) recorded that the scooty was driven by Rahim @ Lala (accused), which is itself contrary to each other. I do not find merit in this submission also because PW13 has stated in his cross-examination that he deposited the scooty in malkhana. PW2, MHC(M), has stated clearly that Assistant Sub-Inspector Jai Parkash (PW13) deposited the said scooty. Entry in this regard in Register no. 9 has been proved to be Ex.PW2/B. To my mind, the meaning of column number 4 of said entry (Ex.PW2/B) pertaining to scooty is that this is the scooty which was driven by accused at the relevant point of time. The said entry does not say that said scooty was deposited by accused in malkhana.
SC No. 252/2019 FIR No. 245/2018 PS:Crime Branch 69 Log Book of Santro Car
88. Mr. Giri on the issue of Log Book, has submitted that PW10 (First Investigating Officer) allegedly used Santro Car no. DL 3C BZ 4571 for carrying the members of the raiding party from Crime Branch to Nighambodh Ghat and further, that the said car was also used by PW13 (Second Investigating Officer) and they both clearly admitted that they did not claim any reimbursements or fuel charges at any point of time and further, they did not fill Log Book and therefore, the story of use of the said car is false and fabricated and the case is planted. Mr. Giri has placed reliance on Ezl Val Okeke (supra) and Om Parkash (supra) on this point. I am not agree with this submission also because Log Book (as explained/clarified by PW10) is required to be filled if official vehicle is used but here, private vehicle (Santro car) was used by police officers. It is correct that PW10 and PW13 have not made claim for any reimbursements for fuel charges from department for said Santro Car used in the investigation, but this, to my mind, does not make case of prosecution doubtful. The case of Eze Val Okeke (supra) is not applicable in the present case because official vehicle was used in that case. Insofar as Om Parkash (supra) is concerned, it is not clear as to whether Maruti 800 car, which was used in said case for carrying the raiding party, was official vehicle or private vehicle. The learned counsel for the accused has not produced any document/rule book/notification/ judgment etc. to show that Log SC No. 252/2019 FIR No. 245/2018 PS:Crime Branch 70 Book is required to be used and filled even for private vehicle used in NDPS case by police officer.
Non-joining of Public Witness
89. Mr. giri, learned counsel for the accused has submitted in this regard that the public witness has not be joined during search and seizure despite availability. It is further contended that no efforts were made from nearby to the spot to join the public witness. On this issue, testimonies of recovery witnesses are required to be considered.
90. PW10 (Sub-Inspector Om Prakash) is First Investigating Officer and he formed raiding team including himself, PW3 and PW9. His deposition in this regard is that they proceeded towards disclosed spot via Nishad Raj Marg and Shantivan Red Light, Ring Road, ISBT and reached at the disclosure spot at about 12:50 p.m.. On the way, he requested four-five public persons to join the raiding team at Shantivan Red Light and again requested five-six passersby to join the raiding team at near flyover ahead of the ISBT, but none agreed to join the raiding team, and they left after disclosing their genuine problems without disclosing their names and addresses. Due to paucity of time, he could not serve a written notice upon any public persons/passerby who refused to join the raiding team. He has further deposed that after over powering the accused by them, eight-ten public persons gathered there and they were requested to SC No. 252/2019 FIR No. 245/2018 PS:Crime Branch 71 join the investigation but none agreed and they left the spot without disclosing their names and addresses. Hence, as per him, three times at three points/stages the public persons were requested to join the investigation but they refused. Other members of raiding team PW3 and PW9 have corroborated said testimonies of PW10 in respect of efforts made by PW10 in joining the public witnesses three times at three stages/points.
91. On 06.01.2020, three-Judge Bench of Hon'ble Apex Court, in case of Surinder Kumar v. State of Punjab, Criminal Appeal No. 512 of 2009 held in respect of non-examination of public witness:
"14. Further, it is contended by learned senior counsel appearing for the appellant that no independent witness was examined, despite the fact they were available. In this regard, it is to be noticed from the depositions of Devi Lal, Head Constable (PW-1), during the course of crossexamination, has stated that efforts were made to join independent witnesses, but none were available. The mere fact that the case of the prosecution is based on the evidence of official witnesses, does not mean that same should not be believed.
15. The judgment in the case of Jarnail Singh v. State of Punjab, (2011) 3 SCC 521, relied on by the counsel for the respondent-State also supports the case of the prosecution. In the aforesaid judgment, this Court has held that merely because prosecution did not examine any independent witness, would not necessarily lead to conclusion that accused was falsely implicated. The evidence of official witnesses cannot be distrusted and disbelieved, merely on account of their official status. In the case of State, Govt. of NCT of Delhi v. Sunil & Anr., (2001) 1 SCC 652 it was held as under:
"It is an archaic notion that actions of the Police Officer, should be approached with initial distrust. It is time now to start placing at least initial trust on the actions and the documents made by the Police. At any rate, the Courts cannot start with the presumption that the police records SC No. 252/2019 FIR No. 245/2018 PS:Crime Branch 72 are untrustworthy. AS a presumption of law, the presumption would be the other way round. The official acts of the Police have been regularly performed is a wise principle of presumption and recognized even by the Legislature".
6. Learned counsel also placed reliance on the judgment of this Court in the case of Mohan Lal v. State of Punjab, (2018) 17 SCC 627 to support his argument that informant and investigator cannot be the same person. But in the subsequent judgment, in the case of Varinder Kumar v. State of Himachal Pradesh, (2019) SCC OnLine SC 170 this Court held that all pending criminal prosecutions, trials and appeals prior to law laid down in Mohan Lal, shall continue to be governed by individual facts of the case."
[Underlines are mine]
92. Similarily, In Mukesh Singh (supra), the five-Judge Bench of Hon'ble Supreme Court held:
"10. Now so far as the submission on behalf of the accused that so far as the NDPS Act is concerned, it carries a reverse burden of proof under Sections 35 and 54 and therefore if the informant who himself has seized the offending material from the accused and he himself thereafter investigates the case, there shall be all possibilities of apprehension in the mind of the accused that there shall not be fair investigation and that the concerned officer shall try to prove his own version/seizure and therefore there shall be denial of the "fair investigation" enshrined under Article 21 of the Constitution of India is concerned, it is required to be noted that whether the investigation conducted by the concerned informant was fair investigation or not is always to be decided at the time of trial. The concerned informant/investigator will be cited as a witness and he is always subject to cross-examination. There may be cases in which even the case of the prosecution is not solely based upon the deposition of the informant/informant-cum- investigator but there may be some independent witnesses and/or even the other police witnesses. As held by this Court in catena of decisions, the testimony of police personnel will be treated in the same manner as testimony of any other witness and there is no principal of law that without corroboration by independent witnesses his testimony cannot be relied upon. [See Karamjit Singh SC No. 252/2019 FIR No. 245/2018 PS:Crime Branch 73 v. State (Delhi Administration) (2003) 5 SCC 291] . As observed and held by this Court in the case of Devender Pal Singh v. State (NCT of Delhi) (2002) 5 SCC 234, the presumption that a person acts honestly applies as much in favour of a police officer as of other persons, and it is not judicial approach to distrust and suspect him without good grounds therefor."
[Underlines are mine]
93. In Rajesh Dhiman v. State of Himachal Pradesh, Criminal Appeal No. 1032 of 2013, decided on 26.10.2020 by three-Judge Bench of Hon'ble Supreme Court is also required to be referred, wherein Trial Court had acquitted the respondents on the ground that one public witness was declared hostile, another witness has not been examined, and that the conviction could not be recorded merely on the basis of the statements of official witnesses, and that the independent witnesses from the locality were not associated. But Hon'ble Himachal Pradesh High Court convicted accused and said order was upheld by Hon'ble Supreme Court holding that:
"14. The contention of the appellants that they are entitled to be acquitted on the ground of there being two varying versions of the same incident does not carry any weight. We may firstly clarify that the expression "reasonable doubt" is a well-defined connotation. It refers to the degree of certainty required of a court before it can make a legally valid determination of the guilt of an accused. These words are inbuilt measures to ensure that innocence is to be presumed unless the court finds no reasonable doubt of the guilt of the person charged. Reasonable doubt does not mean that proof be so clear that no possibility of error exists. In other words, the evidence must only be so conclusive that all reasonable doubts are removed from the mind of an ordinary person.
xxx xxx xxx SC No. 252/2019 FIR No. 245/2018 PS:Crime Branch 74
18. As correctly appreciated by the High Court in detail, non- examination of independent witnesses would not ipso facto entitle one to seek acquittal. Though a heighted standard of care is imposed on the court in such instances but there is nothing to suggest that the High Court was not cognizant of this duty. Rather, the consequence of upholding the trial Court's reasoning would amount to compulsory examination of each and every witness attached to the formation of a document. Not only is the imposition of such a standard of proof unsupported by statute but it is also unreasonably onerous in our opinion. The High Court has rightly relied upon the testimonies of the government officials having found them to be impeccable after detailed re-appreciation of the entire evidence. We see no reason to disagree with such finding(s)."
[emphasis added]
94. In the case of Jawahar v. State, 2007(4) R. C. R. (Criminal) 336, while dealing with a case under NDPS Act, it has been observed by Hon'ble Delhi High Court:
"As far as non-association of public witnesses at the time of recovery is concerned, I consider that this is not an infirmity sufficient to throw out the case of the prosecution. It is very hard these days to get association of public witnesses in criminal investigation. Investigation itself is a tedious process and a public witness, who is associated, has to spend hours at the spot. Normally, nobody from public is prepared to suffer any inconvenience for the sake of society. The other reason for the public witness not readily agreeing to associate with investigation is harassment of public witness that takes place in the courts. Normally a public witness should be called once to depose in the court and his testimony should be recorded and he should be discharged. But experience shows that adjournments are given even in criminal cases on all excuses and if adjournments are not given, it is considered as a breach of the right of hearing of the accused. These adjournments are specifically taken by counsels for accused persons, when witnesses are present, just to see that witnesses get harassed by calling them time and again. The excuses normally given in the courts are: the counsel having urgent personal work, left the court, death of some near relatives etc; the counsel being SC No. 252/2019 FIR No. 245/2018 PS:Crime Branch 75 busy in arguing other matter in other court or cross-examining other witness in some other court. This attitude of the courts of sending witness back is a major cause of harassment which discourages public from associating in the investigation of any case. Since the police is faced with this handicap, the police cannot be blamed for not associating public witness. There is no presumption that the police witnesses are not credible witnesses. The testimony of every witness, whether from public or police, has to be judged at its own merits and the court can believe or disbelieve a police witness considering the intrinsic value of his testimony. Police witnesses are equally good witnesses and equally bad witnesses as any other witness and the testimony of police witnesses cannot be rejected on the ground that they are official witnesses."
95. It has been observed by Hon'ble Apex Court in Ahir Raja v. State of Sourashtra, AIR 1956 SC 217 that it is not a judicial approach to distrust and suspect official witness without good grounds.
96. The Hon'ble Supreme Court in Girja Prasad v. State of M.P., (2007) 7 SCC 625 have held that the conviction can be recorded solely on the testimony of police officials. However, there is a word of caution that it has to be after careful scrutiny of their evidence. It was held:
"25. In our judgment, the above proposition does not lay down correct law on the point. It is well-settled that credibility of witness has to be tested on the touchstone of truthfulness and trustworthiness. It is quite possible that in a given case, a Court of Law may not base conviction solely on the evidence of Complainant or a Police Official but it is not the law that police witnesses should not be relied upon and their evidence cannot be accepted unless it is corroborated in material particulars by other independent evidence. The presumption that every person acts honestly applies as much in favour of a Police Official as any other SC No. 252/2019 FIR No. 245/2018 PS:Crime Branch 76 person. No infirmity attaches to the testimony of Police Officials merely because they belong to Police Force. There is no rule of law which lays down that no conviction can be recorded on the testimony of Police Officials even if such evidence is otherwise reliable and trustworthy. The rule of prudence may require more careful scrutiny of their evidence. But, if the Court is convinced that what was stated by a witness has a ring of truth, conviction can be based on such evidence."
97. The Hon'ble Supreme Court in Nishan Singh v. State of Punjab, (2008) 17 SCC 505 have held that non examination of independent witness by itself is not sufficient to disregard the statements of the prosecution witnesses totally.
98. The Hon'ble Supreme Court in Ajmer Singh v. State of Haryana, (2010) 3 SCC 746 in a case registered under the Narcotic Drugs and Psychotropic Substances Act, 1985 have held that testimony of official witnesses, even in absence of its corroboration by independent evidence can form basis of conviction if court is satisfied, on careful and cautious appreciation of evidence, that it is otherwise believable. It was held:
"19. The learned Counsel for the appellant has submitted that the evidence of the official witness cannot be relied upon as their testimony, has not been corroborated by any independent witness. We are unable to agree with the said submission of the learned Counsel. It is clear from the testimony of the prosecution witnesses PW-3 Paramjit Singh Ahalawat, D.S.P., Pehowa, PW-4 Raja Ram, Head Constable and PW-5 Maya Ram, which is of record, that efforts were made by the investigating party to include independent witness at the time of recovery, but none was willing. 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 SC No. 252/2019 FIR No. 245/2018 PS:Crime Branch 77 should be independent evidence to support the case of the prosecution. However, it is not an inviolable rule. Therefore, in the peculiar circumstances of this case, we are satisfied that it would be travesty of justice, if the appellant is acquitted merely because no independent witness has been produced."
99. The Hon'ble Supreme Court in Rameshbhai Mohanbhai Koli and others v. State of Gujrat, (2011) 11 SCC 111 has held that merely because panch witnesses turned hostile, is no ground to reject evidence, if the same is based on testimony of investigating officer alone. It was held as under:
"32. An argument was advanced about reliance based on the evidence of investigating officer. This Court in State of U.P. vs. Krishna Gopal and Another, (1988) 4 SCC 302 has held that courts of law have to judge the evidence before them by applying the well recognized test of basic human probabilities.
Prima facie, public servants must be presumed to act honestly and conscientiously and their evidence has to be assessed on its intrinsic worth and cannot be discarded merely on the ground that being public servants they are interested in the success of their case. [vide State of Kerala vs. M. M. Mathew & Anr., (1978) 4 SCC
65)]."
100. The Hon'ble Supreme Court in C. Ronald and another v. Union Territory of Andaman and Nicobar Islands, (2011) 12 SCC 428 has held that there is no principle of law that a statement made in Court by police has to be disbelieved. It was held:
"14. There is no principle of law that a statement made in court by a police personnel has to be disbelieved. It may or may not be believed. It is not that all policemen will tell lies. There are good and bad people in all walks of life. There are good and bad police men as well. We cannot assume that every statement of a policeman is necessarily false. In the present case, there is nothing to show that the policemen were making false statements in the court. They SC No. 252/2019 FIR No. 245/2018 PS:Crime Branch 78 had no enmity with the accused.
15. Mr. Shanti Bhushan submitted that it is possible that these policemen demanded some money from the accused which they did not give and hence they were falsely implicated. This case was not set up by the accused at any point of time and no such suggestion was even made in the crossexamination."
101. It is always desirable that the independent witnesses are associated at the time of search in cases under the NDPS Act. But, The presumption that an act is done in good faith equally applies to act of official and section 114 of the Evidence Act, 1872 gives seal of legality to it. Evidence of police officials is neither to be inherently suspected nor is to be rejected on that ground. The statements of official witnesses can be relied upon, if it inspire confidence, even though independent witnesses have not been produced and not supported the case of the prosecution. In the instant case, I have have critically scrutinized the evidence of the prosecution witnesses applying the rule of caution. It is not the case of the accused that official witnesses have inimically deposed against him. It is not the case of the prosecution that the police has not tried to associate independent witnesses from the locality. It is significant to note that there is nothing on the record to show that the police witnesses examined in the present case to prove the search and recovery had any animus or hostility against the accused. The cross-examination directed against them has not elicited anything worth the name that can possibly cause a dent in the prosecution case. It is not elucidated by defence as to why police SC No. 252/2019 FIR No. 245/2018 PS:Crime Branch 79 officials would depose falsely particularly considering the fact that no animosity has been suggested by the defence. Moreover, in the case in hand, efforts were made by PW10 to join independent witnesses at three places/places but none came forward. He did his best to sway the public but none was found willing. The prosecution has offered a plausible explanation with regard to non-joining of the independent witnesses. Hence, non-joining/examining the public witnesses from localities are of no consequences.
Owner of Scooty and address of Accused
102. Mr. Giri has further contended that the ownership of the said scooty is admittedly in the name of one Jumman; that during the cross-examination of PW10 (first investigating officer), he has admitted that he did not verify the ownership of the scooty and also did not get verified the residence of accused; that address of accused is mentioned as 96-A, DDA Flats, Shastri Park, Delhi in the documents. He has also submitted that Second Investigating Officer, Sub-Inspector Jai Parkash (PW13) in his cross-examination admitted that Jumman has stated in his interrogation in jail that he did not know how accused Rahim came in possession of the said scooty on the alleged date. It is also submitted that PW13 admitted that he did not verify as to who lived in the house no. 96-A and also did not verify the address of accused as 90-A. It is further submitted that in Customer Application Form (Exhibit PW4/A) as well as in Adhar card, the address of accused was mentioned as 90-A, DDA SC No. 252/2019 FIR No. 245/2018 PS:Crime Branch 80 Janta Flats, Shastri Park, Delhi meaning thereby PW13 was well aware that accused had been living at 90-A, Shastri Park. It is concluded in this regard by learned counsel that there is no statement, document or even a shred of evidence proven by the prosecution that how Rahim @ Lala came into possession of scooty with key when he did not had access to the house 96A, DDA Janta Flats, Shastri Park, Delhi, where scooty was parked according to its owner Jumman.
103. It is correct that ownership of scooty is in the name of Jhumman and not in the name of accused. It is also correct that at the time of recovery of heroin from the accused Rahim @ Lala, said Jhumman was in Tihar jail in other case of NDPS. As per cross- examination of PW13, he during the investigation, conducted the verification of address 90A, DDA Flats, and as per verification, the accused was earlier residing at 90A DDA Flats but after the death of his parents he was not residing there. It is also correct that factum of verification is not mentioned by PW13 in the Parcha 12 or in charge-sheet. PW13 did not record the statement of any of the neighbourer or the owner of Flat No. 96A to the effect that accused was residing there at the relevant time. He did not collect any document/rent receipt with regard to the occupancy by the accused of Flat No. 96A. The registered owner of the Scooty, namely, Jhumman was also interrogated by PW13 at Tihar Jail regarding the scooty and during interrogation he had disclosed that the scooty was SC No. 252/2019 FIR No. 245/2018 PS:Crime Branch 81 parked by him in front of his house but Jhumman do not know how the same was recovered from the possession of accused. PW13 did not enquire from Jhumman as to whether accused and Jhumman had ever lived together at 96A, Shastri Park.
104. The testimonies of three defence witnesses on this point are also required to be appreciated. Mohd. Sahaban (DW1) deposed that she is the owner of the Flat No.96A, DDA Flats, Shastri Park, Delhi and said flat was given by her to the deceased Jumman on rent in the year 2017 vide rent agreement Ex.DW1/A and he lived there till he was implicated in a case and went to Jail; that the accused Rahim @ Lala never resided in said Flat No.96A at any point of time; that on 26.09.2018, police officials arrived at the aforesaid flat and took one scooty Activa from the aforesaid flat in the morning about 08.00/08.30 a.m., which was parked near the staircase and the same was not in a working condition; that same was lifted in a mini truck like vehicle (Chota Hathi). In cross-examination she has admitted that she did not make any complaint/dialed number 100 at any point of time regarding lifting of scooty as stated above, on 26.09.2018, by the police officials. Ms. Geeta (DW3) deposed that rent agreement (Ex.DW1/A) was executed in her presence which bears her signatures at point X.
105. Ms. Beauty (DW2) deposed that she is residing at 90A, Shastri Park, DDA Flats, Delhi and mother of accused Rahim @ SC No. 252/2019 FIR No. 245/2018 PS:Crime Branch 82 Lala was her sister (Moohboli sister) and after the death of mother and father of the accused, he was residing with her along with his other brothers and sisters. She brought the copy of the Aadhar Card of the accused Rahim @ Lala, Rehana Khan and brother Ishan which have been marked as Ex.DW2/A. She also brought copy of her Aadhar Card as well as Aadhar Card of her two daughters, photocopy of which has been marked as Ex.DW2/B. She also stated that about three years back, the accused was lifted by the police officials in front of Akram Biryani shop.
106. To my mind, whether address of accused is 90A or 96A, is not of much important because this is not the case of prosecution that heroin was recovered from the house of 90A or 96A. As per the case of prosecution, heroin was recovered from the possession of the accused when he came on scooty at the spot, which is near of Nigam Bodh Ghat. The Jhumman who is owner of the scooty, has stated to PW13 (Second Investigating Officer) as mentioned in report of PW13 (Ex.PW14/C) that he had parked the scooty in front of his house but he did not know how the same was recovered from the possession of accused. There is defence of accused since inception that he was lifted/apprehended by the police from a biryani shop situated in front of house number 90A, DDA Flats, Shastri Park, Delhi. The accused has got examined three witnesses in his support, but no question or suggestion has been put/given to either of the recovery witnesses (PW3, PW8, PW10) or Second SC No. 252/2019 FIR No. 245/2018 PS:Crime Branch 83 Investigating Officer (PW13) or any other prosecution witness that at the time of said apprehension of accused from said alleged biryani shop (which is defence of accused), DW2 has seen the police apprehending the accused on relevant day. Similarly, there is defence of accused since inception that said scooty was lifted by the police from flat No. 96A, DDA Flats, Shastri Park, Delhi which was parked near the staircase and same was not working condition, but no question or suggestion has been put/given to either of the recovery witnesses (PW3, PW8, PW10) or Second Investigating Officer (PW13) or any other prosecution witness that at the time of said alleged lifting of said scooty from said flat (which is also defence of accused), DW1 has seen the police lifting the scooty on relevant day. Further, DW1 has admitted that she did not make any complaint/dialed number 100 at any any point of time regarding said alleged lifting of scooty by the police. Similarly, DW2 has admitted that she did not lodge any complaint either in the police station or before any court about said lifting/apprehending of the accused by police from the alleged biryani shop. It is significant to note that there is nothing on the record to show that the police witnesses examined in the present case to prove the search and recovery had any animus or hostility against the accused. The cross-examination directed against them has not elicited anything worth the name that can possibly cause a dent in the prosecution case. It is not elucidated by defence as to why police officials would depose falsely particularly considering the fact that no animosity has been SC No. 252/2019 FIR No. 245/2018 PS:Crime Branch 84 suggested by the defence. Hence, I donot find force in said submission of Mr. Giri.
Information of Arrest
107. Mr. Giri in respect of arrest, has submitted that as per column no.7 of arrest memo of accused (Ex.PW9/A), name of person to whom information of arrest was given is one Arun Dutt, but in a DD entry no.25 (Ex. PW14/B) lodged by PW13, the arrest information has been stated to be given to his Khala Beauty, wife of Soharab, resident of 96-A, DDA Flats. Thus, in this way the arrest memo and the DD no.25 are contrary to each other and did not follow the guidelines of the arrest as per case of D. K. Basu v. State of West Bengal, 1997 (1) SCC 416.
108. It is correct that as per the said arrest memo of accused, the information of arrest of accused was given to one Arun Dutt, but as per DD No. 25 dated 26.09.2018 (Ex.PW14/B), the information of arrest was given to his Khala Beauty. The officer who has arrested the accused, is supposed to give information of arrest to the family members/friends of the accused. From the arrest memo and DD No. 25, it is clear that information of arrest of accused was given but name of said person(s) and his/her mobile number has been mentioned different in said two documents. The said Beauty has been examined by accused in his defence as DW-2, but she is silent on the aspect of giving information of arrest of accused to her. If no SC No. 252/2019 FIR No. 245/2018 PS:Crime Branch 85 information was given to her then she can say so, but she choose not to say anything about this issue. No question regarding information of arrest has been put to her by accused who called her as his defence witness. She is admittedly near relative of accused because she has deposed that mother of the accused was her sister (moohboli sister) and after the death of mother and father of the accused, he was residing with her alonwith his other brothers and sisters. Hence, mentioning the name of person whom information of arrest of accused was given different in said arrest memo and DD no. 25 does not adversely affects case of prosecution.
Compliance of Section 42
109. Assistant Sub-Inspector Om Prakash (PW10) has deposed in this regard that he was posted in Narcotics Cell, Crime Branch, Dariyaganj, Delhi on 26.09.2018, and on that day, when he was present in his office at about 11:30 a.m., one secret informer came at his office and informed him that one person by the name of Rahim @ Lala, a resident of DDA Janta Flat, Shastri Park, who used to supply heroin in the area of north east Delhi, would come at the corner of Nigam Bodh Ghat the road leading towards Nigaam Bodh Ghat from Shastri Park side on his scooty bearing registration no. DL13 SV 7153, Honda Activa, in between 01.00 p.m. to 02.00 p.m. to supply heroin to someone, and if raid is conducted he could be apprehended with the receiver of contraband while giving and taking the same. He made enquiry from secret informer, and SC No. 252/2019 FIR No. 245/2018 PS:Crime Branch 86 thereafter produced secret informer before Inspector Sanjay Neolia (PW11), the then Inspector Narcotics Cell, Crime Branch. Inspector Sanjay Neolia, made enquiry from secret informer and after his satisfaction, he went to the office of concerned Assistant Commissioner of Police ('ACP' in short) and informed ACP (PW12) about secret informer. After some time, Inspector Sanjay Neolia, came back to his office and told him that concerned ACP (PW12) has directed to conduct raid immediately. Thereafter, he (PW10) called Head Constable Yogender (PW3) and Head Constable Manoj (PW9) in his office and informed them about secret information. Thereafter, he lodged DD no.15 (Exhibit PW1/A) regarding secret information for proceedings under section 42 of the NDPS Act.
110. Inspector Sanjay Neolia (PW11) corroborated the testimonies of PW10 about giving him secret information by PW10 on said date and time; about passing said information to ACP (PW12) and directing him (PW11) by PW12 to conduct raid and take necessary action; about directing PW10 by PW11 to constitute a team. PW11 also corroborated about lodging the said information in Daily Diary Register vide DD No.15 (Ex.PW1/A) and forwarding the copy of the same to him for compliance of section 42 of the NDPS Act and further forwarding the sameby PW11 to said ACP (PW12). PW10 has identified his signature on said DD (Ex.PW1/A) at point A and PW11 has identified his signature at point B. SC No. 252/2019 FIR No. 245/2018 PS:Crime Branch 87
111. Head Constable Devender (PW1) was working as a Reader to PW12 on 26.09.2018 and on that day, he received a copy of DD No. 15 dated 26.09.2018 by dak sent by Assistant Sub Inspector Om Prakash (PW10) and forwarded by Inspector Sanjay Neolia (PW11). The said DD (Ex.PW1/A) was regarding the secret information of contraband substance in compliance of Section 42 of NDPS Act. He put up the said DD before the PW12, who having seen the report appended his endorsement with his signatures. He recorded entry in the diary register at serial number 1629 in respect of receipt of the said DD. The copy of the said entry is Ex PW1/B.
112. R. K. Ojha, ACP (PW12) has also corroborated about testimonies of PW10 and PW11 regarding secret information given to him by PW11. He has also corroborated about testimonies of PW1 regarding puting up before him DD no. 15 (Ex.PW1/A) by him (PW1) on 26.09.2018 and puting his signature at point A on said DD. PW10 has identified his signature on said DD (Ex.PW1/A) at point B and PW11 has identified his signature at point B. There is nothing in cross-examination of PW1, PW10, PW11 and PW12 to show that something has elicited that can possibly cause a dent in the prosecution case regarding compliance of section 42 of NDPS Act.
113. Hence, from the testimonies of PW1, PW10, PW11, PW12, it has been proved that said secret information received by PW10 was SC No. 252/2019 FIR No. 245/2018 PS:Crime Branch 88 taken down in writing by him (PW10) vide DD no. 15 (Ex.PW1/A) and same was brought in notice of his immediate official officer of PW10, who are PW11 and PW12 and same was also sent to PW11 and PW12 within seventy-two hours. There is no arguments advanced by Mr. Giri about compliance of said provisions of section 42 of the NDPS Act. Hence, there is compliance of section 42 of the NDPS Act.
Compliance of Section 50
114. In this regard, testimonies of recovery witnesses (PW3,PW9 and PW10) are relevant. PW10 (Assistant Sub-Inspector Om Prakash) has deposed in this regard that he apprised to accused about his legal rights by telling him that if he wants, his search can be taken in the presence of Gazetted Officer and Magistrate and for that purpose he can be produced before a Magistrate or Gazetted officer, or Magistrate or Gazetted officer can be also called at the spot for his search, if he so desires. He also offered accused that he can take search of the members of raiding team and vehicle of raiding team prior to his search but accused refused to get his search conducted in the presence of Magistrate or Gazetted officer or to take search of raiding team or vehicle of raiding team. However, he made the accused understand about the meaning of Gazetted Officer and Magistrate. Then he prepared a notice (Ex. PW9/E) under section 50 of the NDPS Act along with its carbon copy (Ex. PW3/A) by mentioning aforesaid legal rights of accused which is bearing his SC No. 252/2019 FIR No. 245/2018 PS:Crime Branch 89 signature at point B. He served original notice upon the accused. He wrote down refusal of accused (Ex. PW3/B) on the bottom and backside of the carbon copy of notice under section 50 of the NDPS Act on the dictation of accused as accused was illiterate and he can make only his signature in English language as told by the accused. Refusal of accused is bearing his signature at point C and accused also made his signature in English language below his refusal. After preparation of notice under section 50 of the NDPS Act, he also read over the contents of said notice prior to refusal of accused. He again apprised accused about his aforesaid legal rights but accused again refused to get his search in presence of Gazetted Officer or Magistrate and he told him that he was carrying heroin kept in said brick color bag. PW 3 (Head Constable Yogender) and PW9 (Head Constable Manoj) have corroborated said testimonies of PW10 regarding notice under under section 50 of the NDPS Act. PW 10 has identified his signature on notice under section 50 of the NDPS Act Ex.PW9/E at point A and PW9 has identified his signature at point B. Further, PW 10 has identified his signature on carbon copy of notice under section 50 of the NDPS Act (Ex.PW3/A) at point C and PW9 has identified his signature at point B and PW3 has identified his signature at point A. Further also, PW 10 has identified his signature on refusal of accused on the said carbon copy of notice under section 50 of the NDPS Act (which is Ex.PW3/B) at point C and PW9 has identified his signature at point C and PW3 has identified his signature at point A. SC No. 252/2019 FIR No. 245/2018 PS:Crime Branch 90
115. There is nothing in cross-examination of PW3, PW9 and PW10 which is against the case of prosecution regarding compliance of section 50 of NDPS Act. There is no arguments advanced by Mr. Giri about compliance of said provisions of section 50 of the NDPS Act. Hence, from the said testimonies of PW3, PW9 and PW10, it can be said that there is compliance of section 50 of the NDPS Act.
Compliance of Section 57 Regarding Seizure of Heroion
116. PW10 (First Investigating Officer) has deposed in this regard that on 27.09.2018 he prepared report under section 57 of the NDPS Act regarding recovery of heroin from the possession of accused and submitted the same before Inspector Sanjay Neolia (PW11), who forwarded the same to concerned ACP (PW12) which is Ex. PW1/C. PW11 has corroborated about producing said report (Ex.PW1/C) by PW10 and forwarding to ACP (PW12).
117. Head Constable Devender (PW1) who was the Reader to ACP, PW12, on 26/27.09.2018 has deposed that on 27.09.2018, he received report under section 57 of NDPS Act regarding the seizure of 280 grams of heroin prepared by PW10. The report had been forwarded by Inspector Sanjay Neolia (PW11). He put up the said report before PW12, who having seen the report appended his endorsement with his signatures. The report is Ex PW1/C. He recorded the entry at diary register at serial number 1633 in respect SC No. 252/2019 FIR No. 245/2018 PS:Crime Branch 91 of receipt of the report. The said entry is Ex PW1/D. PW 12 (ACP) has also corroborated the testimonies of his reader (PW1) about putting before him report under section 57 of the NDPS Act by his reader regarding seizure of 280 grams heroin from the possession of accused and putting his signature at point A on said report (Ex.PW1/C). PW 10 has identified his signature at point B on said report and PW11 has identified his signature at point C.
118. There is nothing in cross-examination of PW1, PW10, PW11 and PW12 to show that something has elicited that can possibly cause a dent in the prosecution case regarding compliance of section 57 of NDPS Act. There is no arguments advanced by Mr. Giri about compliance of said provisions of section 57 of the NDPS Act about sending report of seizure of heroin by PW10 to his immediate official superior on 27.09.2018. Hence, from the said testimonies of PW1, PW10, PW11, PW12, it has been proved that PW10 has made a full report of all particulars of such seizure to his immediate official superior (PW11 and PW12) within forty-eight hours next after such seizure. Hence, there is compliance of section 57 of the NDPS Act regarding making report of seizure of contraband.
Compliance of Section 57 Regarding Arrest
119. PW13 (Second Investigating Officer) has deposed in this regard that on 27.09.2018 he prepared report under section 57 of the NDPS Act (Ex.PW1/E) and sent the same to Inspector Sanjay SC No. 252/2019 FIR No. 245/2018 PS:Crime Branch 92 Neolia (PW11) for onward transmission to ACP, Narcotics (PW12). PW11 has corroborated about producing said report by PW13.
120. Head Constable Devender (PW1) who was the Reader to ACP, PW12, on 26/27.09.2018, has deposed that on 27.09.2018, he received another report under section 57 of NDPS Act regarding the arrest of accused Rahim @ Lala, prepared by Sub-Inspector Jai Prakash (PW13). The report was forwarded by Inspector Sanjay Neolia (PW11). He put up the said report also before the PW11, who having seen the report appended his endorsement with his signatures. The report is Ex PW1/E. He recorded the entry at diary register at serial number 1634 in respect of receipt of the report. The said entry is Ex PW1/F.
121. ACP (PW12) deposed that on 27.09.2018, his Reader again put up before him two reports under section 57 of NDPS Act in this case, one prepared by Assistant Sub-Inspector Om Prakash and the another prepared by Sub-Inspector Jai Prakash, which were duly forwarded by Inspector Sanjay Neolia. He had gone through both the reports (Ex.PW1/C and Ex.PW1/E) and had signed at point A.
122. PW 13 has identified his signature at point A on said report (Ex.PW1/E) and PW11 has identified his signature at point B and PW12 has identified his signature at point A. There is nothing in cross-examination of PW1, PW13, PW11 and PW12 to show that SC No. 252/2019 FIR No. 245/2018 PS:Crime Branch 93 something has elicited that can possibly cause a dent in the prosecution case regarding compliance of section 57 of NDPS Act. There is no arguments advanced by Mr. Giri about compliance of said provisions of section 57 of the NDPS Act about sending report of arrest of accused by PW13 to his immediate official superior on 27.09.2018. Hence, from the said testimonies of PW1, PW13, PW11 and PW12, it has been proved that PW13 has made a full report of all particulars of such arrest to his immediate official superior (PW11 and PW12) within forty-eight hours next after such seizure. Hence, there is compliance of section 57 of the NDPS Act regarding making report of arrest of accused.
Final Conclusion
123. The chain of events commencing from seizure of contraband to its chemical analysis, was complete in all respects. In the absence of any allegation of bias, it would be wrong to discard the otherwise impeccable statements of the official witnesses. The legal position is that police officers' testimonies ought to be subjected to a vigorous standard of scrutiny and corroboration; which, after careful and cautious appraisal, had been met in the instant case. The statements of official witnesses are trustworthy and reliable and inspire confidence. It is well settled by now that the conviction can be recorded merely on the basis of statement of official witness, if it inspires confidence.
SC No. 252/2019 FIR No. 245/2018 PS:Crime Branch 94
124. There are no material contradictions/improvements/infirmities in the testimonies of prosecution witnesses. The contradictions/improvements/infirmities/discrepancies, if any, in the testimonies of prosecution witnesses are not material and are normal. The recovery witnesses falls in category of wholly reliable and further one witness has corroborated to each other.
125. In the present case, by applying recognized principle of evaluation of evidence of witnesses, I am of the view that the accused was found in possession of 280 grams of heroin (manufactured drugs). Further onus was on the appellant to explain the possession and in absence of the same being discharged, presumption under Section 54 of the NDPS Act also will kick in. Hence, the prosecution has been succeeded to prove its case against the accused Rahim @ Lala beyond reasonable doubts that he was found in possession of 280 grams of heroin (manufactured drugs) on 26.09.2018 at about 01.20 p.m. on the side of the Yamuna Flyover from Shastri Park leading to ISBT, Kashmere Gate descending into at Nigam Bodh Gath, which falls in the commercial quantity and therefore, he is held guilty and is convicted for the offence under section 21 (c) of the NDPS Act.
Digitally signed byDated: 26.11.2022 SANJEEV SANJEEV KUMAR
KUMAR Date: 2022.11.26
12:34:43 +0530
(Sanjeev Kumar)
Special Judge (NDPS)-02,
Central District, Tis Hazari Courts, Delhi
SC No. 252/2019 FIR No. 245/2018 PS:Crime Branch 95