S.C. No. 6880/2016 State vs . Mohd. Ali & Anr. on 10 March, 2017

[Cites 36, Cited by 0]

Delhi District Court

S.C. No. 6880/2016 State vs . Mohd. Ali & Anr. on 10 March, 2017

                                         1

                         IN THE COURT OF SHRI A.K.KUHAR
                     ASJ/SPECIAL JUDGE-NDPS/SOUTH DISTRICT
                        SAKET COURT COMPLEX, NEW DELHI

S.C. No. 6880/2016
(Old No. 10A/2012)

FIR No. 285/11
u/s. 20/29/61 NDPS Act
PS-Crime Branch

State

                                    VERSUS

1.         Mohd. Ali
           S/o Mohd. Alam
           R/o Jhuggi No. 198, Taimur Nagar,
           New Friends Colony, Delhi.

2.         Mafidul Islam
           S/o Sh. Azgar Ali
           R/o Village-Alopeti Majhcahar,
           PO-Keleirdie District, Barpetta,
           Assam.

Computer ID No.                              :   DLST01-000145-2012
Date of institution                          :   14.02.2012
Date of reserving judgment                   :   10.02.2017
Date of pronouncement                        :   07.03.2017
Decision                                     :   Convicted.


JUDGMENT

BRIEF FACTS OF THE CASE 1.0 The prosecution case is that on 22.10.2011 Inspector Arti Sharma (PW9) received an information at about 9:00 AM in her office at SIT, Crime Branch, Sector-18, Ronini, New Delhi that two persons namely Mohd. Ali, resident of West Bengal and Mafidul S.C. No. 6880/2016 State Vs. Mohd. Ali & Anr.

Islam, resident of Assam, supply Ganja in Delhi and they would be coming from Cuttak, Orissa by train and between 12 Noon to 1 PM, they will supply Ganja to one lady namely Amma at Pushpa Bhawan Ground near CNG Gas Pump, Dakshin Puri. Inspector Arti Sharma (PW9) shared the information with Additional DCP Dr. Joy Tirkey (PW7) in his office at 9:15 AM, who directed to take necessary steps as per law. Inspector Arti Sharma (PW9) reduced the information received by her in writing by registering DD No. 5 (Ex. PW7/A) at 9:30 AM, which was sent to the senior officers for information. As per the direction, Inspector Arti Sharma formed a raiding team which included SI Sharad Kohli (PW12), ASI Hem Karan, HC Amit Tomar, HC Bahadur Sharma (PW11), HC Rajender Kumar (PW8), Ct. Narender, Ct. Deepak (PW1), Ct. Dabbu, Ct. Gyaneshwar and Ct. Kamal. The raiding team left the office of Crime Branch, Rohini in three private vehicles i.e. one white colour Ritz car, which belonged to SI Sharad Kohli, one red colour Zen car, which belonged to Inspector Arti Sharma (PW9) and one white Santro car, which belonged to Ct. Narender. The departure entry was made at 10 AM vide DD Entry No. 6 (PW9/A). Inspector Arti Sharma (PW9) also took alongwith her the IO bag and electronic weighing scale. The raiding team had reached alongwith the informer at Pushpa Bhawan ground near CNG Pump, Dakshin Puri at about 11:15 AM. They parked their vehicle in Pushpa Bhawan on the road. Inspector Arti Sharma (PW9) S.C. No. 6880/2016 State Vs. Mohd. Ali & Anr.

asked some public persons to join the raiding team after disclosing the information to them, but none agreed and they left without disclosing their names and addresses. Inspector Arti Sharma (PW9) then took a survey of the Pushpa Bhawan ground which was surrounded with a boundary wall of 2½ -3 feet having iron grill on it. The main gate of the ground was locked and the small gate of about 2½ feet adjacent to the main gate, was open which was being used for ingress and outgress.

1.1 Inspector Arti Sharma (PW9) after sharing the information with the members of raiding team directed them to take their respective positions. She alongwith HC Bahadur Sharma (PW11) and the informer took possession at the right side of the small gate at distance of about 20 feet. SI Sharad Kohli (PW12), Ct. Dabbu and Ct. Narender took their position around 50 meters away from the small gate. ASI Hem Karan, HC Deepak (PW1) and HC Rajender Kumar (PW8) took their position at a distance of about 25 meters from the small gate on left side. HC Amit Tomar, Ct. Kamal and Ct. Gyaneshwar took their position outside the gate. 1.2 At about 12:50 PM, two persons entered the Pushpa Bhawan ground from the small gate, each having two bags on his shoulder. The informer pointed out these two boys as Mohd. Ali and Mohd. Mafidul Islam and told that they are the same persons about whom he had given the information and that they would be in S.C. No. 6880/2016 State Vs. Mohd. Ali & Anr.

possession of Ganja. Those two persons reached in the centre of the ground and starting waiting for someone. After about 5-7 minutes, they started moving towards the small gate. At that point of time, Inspector Arti Sharma (PW9) signaled the members of the raiding team which apprehended both the persons at around 1:00 PM. After the apprehension, they disclosed their name as Mohd. Mafidul Islam and Mohd. Ali. They were told about information which Inspector Arti Sharma (PW9) had received and they were further told about their legal right that they can be searched before a Gazetted Officer or a Magistrate who can be called on the spot as well and they can also take the search of the police officials before their search is conducted. The accused Mohd. Mafidul Islam was served with a notice under section 50 of NDPS Act (Ex. PW1/B), on which he wrote his refusal of search before a Gazetted Officer or a Magistrate and put his signature in English (Ex. PW1/D). The accused Mohd. Ali was served with a notice under section 50 of NDPS Act (Ex. PW/1A). He also refused to be searched before a Gazetted Officer or a Magistrate and his refusal (Ex. PW1/C) was written by Inspector Arti Sharma (PW9) as he was unable to write. 1.3 From the possession of the accused Mohd. Ali also two bags were recovered, one bag of black colour with brown strips was having the logo of "LONG 4 STRONG" and another bag of black colour with Badami strips, was having the word "REEBOK" written on S.C. No. 6880/2016 State Vs. Mohd. Ali & Anr.

it. Both these bags were found containing number of white colour polythene containing grass type substance of brown colour which was giving smell of Ganja. The substance in the bag having the logo of "LONG 4 STRONG" was put in a plastic Katta and weighed on an electronic weighing scale. The total weight of Ganja came to be 13.100 Kg. The substance carried in the another bag was also similarly put in a plastic Katta and a total weight of the substance in the second bag came to be 11.050 Kg. These plastic Kattas in which the substance/Ganja was put by Inspector Arti Sharma (PW9) were given marking as A-1 and A-2. Thereafter, Inspector Arti Sharma (PW9) had taken out two samples of 500 Gms each from both the Kattas mark A-1 and A2 and put the samples in another plastic Katta which was given Mark A. The empty polythene bags from which the Ganja was recovered, were also kept in a separate plastic Katta which was tied with rope and was given Mark B. All the Kattas were then sealed with the seal of AS and FSL form was also filled up by Inspector Arti Sharma (PW9) and seal of AS was affixed on FSL form. 1.4 Thereafter, Inspector Arti Sharma (PW9) conducted the search of the bag which the accused Mafidul Islam was carrying. He was carrying two bags, one bag was of black colour with brown strips on which "LONG 4 STRONG" was written. Another bag carried by him was of blue colour on which the logo of "ALFA" was written. Both these bags were opened and were found containing number of S.C. No. 6880/2016 State Vs. Mohd. Ali & Anr.

white colour polythenes containing grass type substance of brown colour, which was giving the smell of Ganja. Inspector Arti Sharma (PW9) took out the substance from the white colour polythene from each bag and put the same in two separate plastic Kattas (sacks) and thereafter, the substance was weighed on an electronic weighing machine. The bag bearing logo of "LONG 4 STRONG" was found containing 13.110 Kg of Ganja while the bag having the logo of "ALPHA" was having 13.105 Kg of Ganja. The plastic Kattas were given mark C-1 and C-2. Thereafter, Inspector Arti Sharma (PW9) took out 500 Gms of Ganja from both the Kattas mark C-1 and C-2 and put the same as sample in a white plastic Katta which was given Mark C. Empty polythene pouches in which the Ganja was recovered were also kept in a plastic Katta which was tied with the rope and was given marking as Mark D. All the plastic Kattas Mark C-1, C-2, C and D were sealed with the seal of AS. Inspector Arti Sharma (PW9) also filled up the FSL form and seized the case property and the sample pullindas (parcels).

1.5 The Ganja recovered from the bags carried by both the accused persons and FSL forms were seized by Inspector Arti Sharma (PW9) vide seizure memo Ex. PW1/E. She handed over the seal after use to HC Bahadur Sharma (PW11) 1.6 Thereafter, Inspector Arti Sharma (PW9) prepared rukka, Ex. PW9/B. She handed over the rukka to HC Rajender Kumar (PW8) S.C. No. 6880/2016 State Vs. Mohd. Ali & Anr.

alongwith all the parcels of the case property, sample parcels, FSL Form and carbon copy of seizure memo with direction to hand over the rukka to Duty Officer of the PS-Crime Branch for registration of FIR and case property, sample and other documents to the SHO of PS-Crime Branch. On the basis of the rukka Ex. PW9/B, the FIR Ex. PW2/A was registered by HC Shamsher Singh (PW2). 1.7 HC Rajender Kumar (PW8) handed over eight sealed pullindas mark A-1, A-2, C-1, C-2, A, B, C and D to Inspector C.R. Meena (PW6) at about 7:15 PM. Inspector C.R. Meena (PW6) put his seal of CRM on all the parcels and the form FSL. He called HC Jag Narain, MHC(M) (PW3) with register no. 19 in his room and deposited the pullindas of case property and samples, FSL form and another documents in Malkhana vide entry no. 1383 (Ex. PW3/A). Inspector C.R. Meena (PW6) also lodged DD NO. 18 (Ex. PW6/A) with regard to deposit of case property and sample etc. in the Malkhana. 1.8 Inspector Arti Sharma (PW9) had mentioned in the rukka and asked Duty Officer to send ASI Suresh Kumar at the spot for further investigation. ASI Suresh Kumar (PW4) reached the spot at 6:25 PM where he was handed over the original seizure memo, original copies of notice under section 50 of NDPS Act, DD No. 5 (Ex. PW7/A). ASI Suresh Kumar first of all prepared site plan (Ex. PW4/A) at the spot on the pointing out of Inspector Arti Sharma (PW9). He made inquiry from the accused persons. He arrested the accused S.C. No. 6880/2016 State Vs. Mohd. Ali & Anr.

Mafidul Islam vide arrest memo Ex. PW1/F and personal search memo Ex. PW1/G. He also recorded the disclosure statement of accused Mafidul Islam as Ex. PW1/H. He arrested the accused Mohd. Ali vide arrest memo Ex. PW1/J, personal search Ex. PW1/K and recorded his disclosure statement Ex. PW1/L. During the personal search of accused Mohd. Ali, ASI Sureksh Kumar (PW4) recovered three train tickets from Sambhal Pur to Tata Nagar, Tata Nagar to Nag Pur and Nagpur to Hazrat Nizamuddin. These railway tickets Ex. P-1, P-2 and P-3 were seized vide seizure memo Ex. PW1/M. ASI Suresh Kumar sent the personal search articles of accused Mafidul Islam and accused Mohd. Ali to PS-Crime Branch, Nehru Place through HC Deepak (PW1) for deposit in the Malkhana. The personal search articles were then deposited by HC Deepak (PW1) with HC Jag Narain, the MHC(M) (PW3) who had made entry in register no. 19 at serial no. 1383 (Ex. PW3/D).

1.9 On 22.10.2011, a report under section 57 of NDPS Act regarding recovery of Ganja from both the accused persons was sent to Additional DCP, SIT, Crime Branch by Inspector Arti Sharma (PW9). On 23.10.2011 a report under section 57 of NDPS Act (Ex. PW7/C) was prepared by PW4 regarding arrest of accused persons and was sent to Additional DCP, SIT, Crime Branch. 1.10 The accused in their disclosure statements (Ex. PW1/H and Ex. PW1/L) had stated that they had brought the Ganja to S.C. No. 6880/2016 State Vs. Mohd. Ali & Anr.

supply the same to one Ms. Kanan Shukla @ Amma. On the basis of this disclosure statement, the accused were taken to Jhuggi NO. C- 386, Bhumiheen Camp, Govind Puri on 25.10.2011 where they pointed the house of Ms. Kanan Shukla @ Amma. However, the said Ms. Kanan Shukla @ Amma could not be found. The accused then led the police party to DDA Flat No. 805/26 in the area of Madangir. This flat was also found locked.

1.11 During the investigation SI Sharad Kohli (PW12) on 04.11.11 had gone for the search of Ms. Kanan Shukla in Bhumiheen Camp, Govind Puri where they met Ms. Kanan Shukla and search of Jhuggi no. C-386 conducted but nothing incriminating was found. 1.12 On 15.11.11, on the instructions of Inspector C.R. Meena (PW6), Ct. Deepak PW1, had taken two sealed sample parcels of this case having seal of AS and CRM from the Malkhana of PS-Crime Branch, PS-Nehru Place and deposited the same in FSL, Rohini. The samples sent to FSL, Rohini were examined and as per the report of the FSL dated 28.12.2011 Ex. PW12/B, the samples had tested as Ganja (Cannabis).

1.13 During the investigation, the investigating officer had also collected the call detail record of mobile no. 9560695800 recovered from the accused Mohd. Ali and the mobile no. 9859528049 recovered from the possession of accused Mohd.


Mafidul Islam.            ASI Suresh Kumar collected CDR of Mobile No.


S.C. No. 6880/2016                                              State Vs. Mohd. Ali & Anr.
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9583473483 which the said Amma @ Kanan was using. After completing the investigation, the charge sheet was filed in the Court.

2.0 On the basis of these allegations vide order dated 09.10.2012 my learned predecessor held that prima facie a case for commission of offence punishable under section 20 (b) (ii) (C) and Section 29 of NDPS Act read with Section 20 (b) (ii) (C) of NDPS Act was made out against both the accused persons for keeping in possession and importing in Delhi contraband substance and being a party to a criminal conspiracy to possess and import the contraband substance. Charges were framed accordingly, to which both the accused pleaded not guilty and claimed trial. 3.0 To prove its case the prosecution has examined following witnesses :

3.1 PW1 HC Deepak, PW8 HC Rajender Kumar, PW9 Inspector Arti Sharma, PW11 ASI Bahadur Sharma and PW12 Inspector Sharad Kohli are the witnesses to the recovery of contraband substance i.e. Ganja from the possession of the accused. They all have been members of the raiding team which was constituted by Inspector Arti Sharma. Their deposition in the Court is on the same line as the narration of the prosecution case in the charge sheet. I shall deal with their statement in the later part of the judgment.

S.C. No. 6880/2016                                              State Vs. Mohd. Ali & Anr.
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3.2                  PW2 is HC Shamsher Singh. He was the Duty Officer,

Crime Branch who registered the FIR Ex. PW2/A.

3.3                  PW3 is HC Jag Narain.   He was MHC(M) at PS-Crime

Branch, Nehru Place.           He has deposed about the deposit of eight

sealed parcels and FSL form having seal of AS and CRM by Inspector C.R. Meena on 22.10.2011 for which he made entry in the register no. 19 vide Ex. PW3/A. He deposed further that on 15.11.2011, two sample parcels i.e. Mark A and C alongwith FSL form having seal of AS and CRM in intact condition were sent to FSL, Rohini through Ct.

Deepak (PW1). He made relevant entry in the register no. 19 vide Ex. PW3/B. He further deposed that on 01.02.2012, the parcels mark A and C having the seal of SKP, FSL Delhi were received alongwith the FSL result, for which he made entry in register no. 19 vide Ex. PW3/C. 3.4 PW4 is ASI Suresh Kumar. He deposed that on 22.10.2011, the Duty Officer, SIT, Crime Branch had told him at about 5 PM that Inspector Arti Sharma (PW9) has apprehended two persons with Ganja and he has been called at the spot for investigation of the case. He reached the spot on 6:25 PM where Inspector Arti Sharma (PW9) handed over to him the custody of two accused, carbon copy of rukka, original seizure memo, one DD No. 5 regarding receipt of the information and two original notices under section 50 of NDPS Act. He deposed that he prepared site plan Ex.

S.C. No. 6880/2016 State Vs. Mohd. Ali & Anr.

PW4/A at the instance of Inspector Arti Sharma (PW9). He further deposed that he had arrested the accused Mohd. Ali and Mafidul Islam in the present case. He also deposed about the recovery of three train tickets (Ex. P-1, P-2, P-3) from the possession of the accused Mohd. Ali which he had seized vide memo Ex. PW1/M. He deposed further that HC Rajender who had taken the rukka to PS, returned to the spot and handed over to him a copy of the FIR (Ex. PW2/A) and the original rukka. He further deposed that he recorded disclosure statement of accused Mohd. Ali and Mafidul Islam vide Ex. PW1/L and Ex. PW1/H respectively. He further deposed about the recording of statements of witnesses. He deposed that he sent the detailed information regarding the arrest of the accused and seizure under section 57 of NDPS Act (Office copy Ex. PW4/C) on 23.10.2011 to Additional DCP, SIT, Crime Branch. He further deposed about taking the accused to Bhuminheen Camp, Govind Puri on 25.10.2011 and to DDA Flat in the area of Madangir where the house of one Kanan Shukla @ Amma was pointed out by the accused persons vide pointing out memo Ex. PW1/N and Ex. PW1/O respectively.

3.4.1 He also deposed that on 27.10.2011, he had taken the accused Mohd. Ali to the area of Jhar Sugra, Orissa by train. However, the accused could not locate the person who used to supply Ganja to him. Therefore, they came back on 29.10.2011. He S.C. No. 6880/2016 State Vs. Mohd. Ali & Anr.

further deposed that he collected the call details records and customer application form of mobile no. 9859528049 of Mafidul Islam and 9560695800 of accused Mohd. Ali 3.5 PW5 is Israr Babu, Alternate Nodal officer, Vodafone Mobile Services Ltd. who had brought the customer application form and the call detail record of mobile no. 9583473483 which he placed on record as Ex. PW5/A and Ex. PW5/C. The certificate under section 65-B of Indian Evidence Act regarding the authenticity of the call detail record was submitted by him vide Ex. PW5/D. He also places on record the cell ID Chart of Vodafone for Delhi region vide Ex. PW5/A. 3.6 PW6 is Inspector C.R. Meena. He was the SHO of PS- Crime Branch, Nehru Place. He deposed that on 22.10.2011 at 7:15 PM HC Rajender Kumar had produced eight plastic pullindas mark A1, A2, C1, C2, A, B, C and D, form FSL and carbon copy of seizure memo, which he deposited with the MHC(M) and he lodged a DD No. 18 (Ex. PW6/A) in this regard. He deposed that on 15.11.11 on his instructions the MHC(M) had sent sample parcels Mark A and C to FSL Rohini.

3.7 PW7 is Dr. Joy Tirkey, Additional DCP. He deposed that he was Additional DCP, SIT, Crime Branch, Sector-18, Rohini on 20.10.2011. He deposed that Inspector Arti Sharma had informed him at 9:15 AM about the secret information received by her and the S.C. No. 6880/2016 State Vs. Mohd. Ali & Anr.

informer was also produced before him. He directed Inspector Arti Sharma to take necessary steps as per law. He deposed that the DD Entry No. 5 dated 22.10.2011 (Ex. PW7/A) regarding the information received by Inspector Arti Sharma was produced before him at about 10:00 AM on the said date. He deposed that at around 2:00 PM on the same day, he was informed by Inspector Arti Sharma about the apprehension of two persons with Ganja on the same day at around 9:30 PM, he received the information under section 57 of NDPS Act (Ex. PW7/B) regarding seizure of Ganja by Inspector Arti Sharma. He also deposed that on 23.10.2011, the information regarding the arrest of the accused persons under section 57 of NDPS Act (Ex. PW7/C) was received by him at about 11:30 AM. 3.8 PW10 is Ct. Sunil KUmar. He was the DD writer at SIT, Crime Branch, Sector-18, Rohini. He deposed that on 22.10.2011 at 9:30 AM, DD NO. 5 (Ex. PW7/A) was registered by Inspector Arti Sharma and at 10:00 AM, DD No. 6 (Ex. PW9/A) was registered regarding departure of Inspector Arti Sharma. He further deposed that on the same date at 8:30 PM, DD No. 18 (Ex. PW10/A) was registered regarding arrival of Inspector Arti Sharma after investigation of the case and at 10:20 PM another DD Entry (Ex. PW10/B) was recorded by ASI Suresh Kumar regarding his arrival after investigation of the present case.

3.9 PW13 is Sh. Shishir Mishra, Nodal Officer, Airtel Ltd.

S.C. No. 6880/2016 State Vs. Mohd. Ali & Anr.

He has deposed that the customer application form (Ex. PW13/A) and mobile phone no. 9859528049 pertaining to accused Mafidul Islam was handed over to the investigation officer of the case. The call detail records of the aforesaid mobile number (Ex. PW13/B) were also given to the IO alongwith cell ID location chart of the mobile number Ex. PW13/C. He filed certificate under section 65-B of Indian Evidence Act (Ex. PW13/D).

3.10 PW14 is Sh. Chander Shekhar, Nodal Officer from Bharti Airtel Ltd. He has deposed that the customer application form (Ex. PW14/A) and mobile phone no. 9560695800 pertaining to accused Mohd. Ali was handed over to the investigation officer of the case. The call detail records of the aforesaid mobile number (Ex. PW14/B) were also given to the IO alongwith cell ID location chart of the mobile number Ex. PW14/C. He filed certificate under section 65-B of Indian Evidence Act (Ex. PW14/D). 4.0 All the incriminating evidence in the statements of the prosecution witnesses was explained to both the accused when they were examined under section 313 Cr.P.C. Accused Mafidul Islam while denying the evidence has stated that he was apprehended from the Nizamuddin Railway Station from where he was taken to the Police Station. He denied that he was apprehended from the Pushpa Bhawan ground near Pushpa Bhawan. He denied that any contraband substance was recovered from his possession. He also S.C. No. 6880/2016 State Vs. Mohd. Ali & Anr.

denied having received the notice under section 50 of NDPS Act at the spot. He also denied any sealing and sample proceeding being conducted in his presence. He stated that he had came to Delhi to purchase a cheap computer and he was picked up by the police officials in the early hours on 20.10.2011 from Nizamuddin Railway station. He stated that he was asked some questions in Hindi which he could not answer as he can not read, write or understand Hindi. In the police station he was forced to sign number of papers. 4.1 Accused Mohd. Ali also denied the evidence against him as incorrect. He also took the plea that he was not served with the notice under section 50 of NDPS Act and no contraband substance was recovered from his possession and further that no proceedings were conducted in his presence. He denied giving any disclosure statement to the police and he submitted that he was lifted from the Nizamuddin Railway Station and has been falsely implicated in the present case. None of the accused opted to lead evidence in his defence.

5.0 I have heard the arguments of learned Additional Public Prosecutor for the State, Sh. Sumit Sharma, Ld. Counsel for accused Mafidul Islam and Mohd. Nabi for accused Mohd. Ali. I have also perused the written submissions submitted on behalf of the accused persons.


RECOVERY


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6.0                  The prosecution case is based on the recovery of

contraband substance from the possession of accused persons and the entire evidence which has been produced by the prosecution consists of statement of police officials and the documents prepared by them. No independent public witness, as per the case of the prosecution had joined the investigation at any stage. The testimony of police officials, however, cannot be discarded in the absence of independent corroboration by public witnesses. It may be that many a times public witnesses are not available or do not join the police officials in the investigation. The statement of official/public witnesses, however, should inspire confidence and in the absence of any independent corroboration from the public witness, the statement of police officials is required to be taken with the due care and caution.

7.0 The case of the prosecution is that Inspector Arti Sharma (PW9) had received an information that two persons who supply Ganja in Delhi would be coming at Pushpa Bhawan Ground near CNG Petrol Pump, Dakshin Puri, New Delhi to supply Ganja to a person namely Amma. On the basis of this information, the raiding team was formed by Inspector Arti Sharma (PW9) after informing the senior officers and reducing the information to writing by noting DD No. 5 (Ex. PW7/A) at 9:30 AM. The raiding team which was constituted, included HC Deepak (PW1), HC Rajender Kumar (PW8), S.C. No. 6880/2016 State Vs. Mohd. Ali & Anr.

ASI Bahadur Sharma (PW11), Inspector Sharad Kohli (PW12) and some other police officials. The team was led by Inspector Arti Sharma (PW9). All these recovery witnesses when examined in Court have given similar statement. They deposed that they proceeded to the spot after making departure entry in the DD Register and they reached the spot at about 11:50 AM in three vehicles. After reaching the spot, some passersby were asked to join the police party after disclosing to them about the information, but none agreed. It was deposed that the members of the raiding team had taken their positions inside the ground and outside the ground. The ground was stated to be having a boundary wall on all sides up to the height of 2½/3 feet with grills. There was a main gate which was locked from outside but a small gate about 2½-3 Feet height was open. The members of raiding were further directed not to assemble or stand at a particular place and were directed to keep moving as there were no trees or bushes inside the ground for hiding. It has been deposed by the recovery witnesses that at 12:50 PM, two persons entered into the ground through the small Gate. The informer pointed out towards them as the same persons regarding whom he had given the information. The said two persons stood in the ground for some time but after 5-7 minutes they started moving back. At that point of time, the said two persons namely Mohd. Ali and Mafidul Islam were apprehended at 1 S.C. No. 6880/2016 State Vs. Mohd. Ali & Anr.

PM.

7.1 It was further deposed by the recovery witnesses that Inspector Arti Sharma (PW9) had introduced herself as well as the members of the raiding team to accused and also told them about the information which they were having. They were informed that they have a legal right that if they want their search can be conducted in the presence of Gazetted Officer or a Magistrate and such an arrangement can be made at the spot. They were further apprised that before their search, they could take search of the members of raiding team. Notices under section 50 of NDPS Act were given to them, which were served upon accused Mohd. Ali and Mafidul Islam vide Ex. PW1/A and Ex. PW1/B respectively. However, both of them refused for their search before a Gazetted Officer or a Magistrate by writing their replies Ex. PW1/C and Ex. PW1/D respectively. The accused Mafidul Islam has written his reply in English while accused Mohd. Ali was unable to write, therefore, his reply was written by Inspector Arti Sharma (PW9). 8.0 As per the case of the prosecution, both the accused were carrying two bags each, which were found containing Ganja. The samples were taken from these bags and were sealed. Inspector Arti Sharma seized the samples and the case property;


prepared             the    seizure   memo   and   thereafter   sent    rukka          for

registration of FIR.             After the registration of the case, ASI Suresh


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Kumar conducted further investigation of the case. The statement of all the PW1 HC Deepak, PW8 HC Rajender Kumar, PW11 ASI Bahadur Sharma, PW12 Inspector Sharad Kohli is consistent, coherent and fully support and corroborate the statement of PW9 Inspector Arti Sharma.

9.0 The learned counsels for the accused have argued that the accused have been implicated falsely in the case and no recovery of any contraband substance has been effected from their possession. It was submitted that no public witness has been joined at the time of the proceedings. Therefore, no implicit reliance can be placed on their statement. The learned counsel for the accused Mafidul Islam has referred to the judgment in the case of Gunesh Kumar vs. State, Crl. Appeal no. 1696/2014 decided on 18.07.2016, Rajesh Kumar @ Sanjay vs. State (NCT of Delhi), Crl. Appeal No. 263/2011 decided on 03.07.2014. On the other hand learned Additional Public Prosecutor argued that it is a common knowledge that the public witnesses are always scared to become a witness in a criminal case and it is very hard to find public witnesses these days. He has referred to judgment in case Union of India Vs Victor Namdi Okpo 2010 (4) JCC (Narcotics) 188 wherein their Lordships had held that the non-joining of public witnesses by the prosecution is not fatal. Hence, the depositions of the police witnesses cannot be disbelieved merely for non-joining of public S.C. No. 6880/2016 State Vs. Mohd. Ali & Anr.

witnesses.

9.1 The joining of public witness is advisable but it is not possible to engage public witness in the investigation all the time. In the case of Ajmer Singh Vs. State of Haryana (2010) 3 SCC 746, it was contended that the evidence of the official witness cannot be relied upon as their testimony had not been corroborated by any independent witness. The Hon'ble Supreme Court, rejecting the contention, held as under:

"19....In this situation, it is normally expected that there should be independent evidence to support the case of the prosecution. However, it is not an inviolable rule. Therefore, in the peculiar circumstances of this case, we are satisfied that it would be travesty of justice, if the appellant is acquitted merely because no independent witness has been produced.

20. We cannot forget that it may not be possible to find independent witness at all place, at all time. The obligation to take public witnesses is not absolute. If after making efforts which the court considered in the circumstances of the case reasonable, the police office is not able to get public witnesses to associate with the raid or arrest of the culprit, the arrest and the recovery made would not be necessarily vitiated. The court will have to appreciate the relevant evidence and will have to determine whether the evidence of the police officer was believable after taking due care and caution in evaluating their S.C. No. 6880/2016 State Vs. Mohd. Ali & Anr.

evidence."

10. These arguments of the learned defence counsels that the statement of police officials cannot be believed because there was no public witness to provide independent corroboration, cannot be accepted. The recovery witnesses have corroborated each other on the point of apprehension of the accused and recovery of contraband substance from their possession which they were carrying in their bags.

11. The counsel for the accused persons have argued that the prosecution witnesses cannot be believed for there are number of inconsistencies in their statements with regard to the proceedings conducted at the spot and other important aspects of the case. It was submitted that as per the prosecution witnesses three private vehicles have been used in reaching the spot. However, the registration number of the said private vehicle was not mentioned by the witnesses. It was submitted that no logbook has been produced of those vehicles nor there is any evidence that any expenses was claimed by the owner of the vehicle for the use of their vehicle in the police raid. It was submitted that PW1 HC Deepak had stated that the three private vehicles were used in the case but he was unable to mention their make and model. PW4 ASI Suresh also said that he was unable to give the details of the cars and who had arranged the cars. PW8 HC Rajender had stated that S.C. No. 6880/2016 State Vs. Mohd. Ali & Anr.

he does not know the name of the owner of the vehicles, although he was driving one of the car. PW9 Inspector Arti Sharma could not give the registration number of the vehicles used by the police party. PW11 ASI Bahadur Sharma also does not remember the registration number of the vehicles. PW12 SI Sharad Kohli was also unable to give the registration number of the case. No doubt, the witnesses were unable to provide the registration number of the vehicles which they have used for conveyance purpose but it is to be noted that all the witnesses have been consistent that they have used three vehicles to reach the spot and they have also described the vehicles used by them. It was deposed that one of the car was a Ritz car belonging to SI Sharad Kohli, one was a red Zen car which belonged to Inspector Arti Sharma and the white Santro car belonged to HC Narender. Since these were private vehicles, there was no question of there being any logbook with regard of their use in the police raid. In what circumstances the police party had to use private vehicles could have been explained by Inspector Arti Sharma (PW9), had she been asked about the same. In the cross- examination nothing has been put to Inspector Arti Sharma who was leading the raiding party, to inquire why private vehicles had to be used. The statement of these recovery witnesses cannot be brushed aside simply on account of the fact that the police party had used private vehicles instead of government vehicles. The S.C. No. 6880/2016 State Vs. Mohd. Ali & Anr.

contradictions which the learned defence counsels have referred to are not substantive. The prosecution witnesses have corroborated each other about the receipt of information; formation of a raiding team; arrival of the entire raiding team in their vehicles at the spot; about the time of arrival at the spot; about the time of arrival of the accused at the spot; about the accused carrying two bags each on their respective shoulders; about the recovery of Ganja which was identified by the police officials on the basis of its smell, from the bags carried by the accused persons. They all have been consistent in deposing that a notice under section 50 of NDPS Act was served to the accused persons before conducting the search and further that accused Mafidul Islam had given reply to the notice himself while the accused Mohd. Ali replied to the notice which was written by Inspector Arti Sharma as the accused Mohd. Ali could not read and write Hindi and English language. Therefore, so far as the question of recovery is concerned, I have no reason to disbelieve the statement of recovery witnesses. They have no motive to implicate the accused persons falsely. The accused have taken the plea that they have been apprehended from Nizamuddin Railway Station. If that was the case then it was for the accused to explain why they were at the Nizamuddin Railway Station and from where they had come and where they had to go. It is unbelievable that the police officials would pick up two unknown persons from the railway S.C. No. 6880/2016 State Vs. Mohd. Ali & Anr.

station just to implicate them in some case of recovery of contraband substance. None of the accused has given any suggestion to any witness that they were known to any member of the raiding party prior to the date of their apprehension. There is no allegation of any enmity or prejudice against the witnesses. In such a situation it is hard to accept the argument of the defence counsels that the accused have been falsely implicated in the present case and that they have been picked up from Hazrat Nizamuddin Railway Station and thereafter implicated in the present case. Therefore, so far as the recovery of contraband from the possession of both accused is concerned the prosecution has been successful in establishing its case against the accused person. 12.0 However, under the NDPS Act, considering the stringent provision of punishment, the police officials are required to strictly follow statutory provisions during investigation. Ld. counsels for the accused persons have argued that there are violations of statutory provisions of the NDPS Act which vitiate the proceedings of alleged recovery of contraband from the accused.

SECTION 50 OF NDPS ACT 13.0 The learned counsels for the accused have argued that there is no compliance of Section 50 of NDPS Act. It was submitted that the provision of Section 50 of NDPS Act is required to be complied with in letter and spirit. It was submitted that the S.C. No. 6880/2016 State Vs. Mohd. Ali & Anr.

investigating officer did not explain to the accused as to who was the nearest Gazetted Officer or Magistrate. The police officials neither called any Gazetted officer or Magistrate at the spot nor they were produced before any Gazetted Officer or a Magistrate. It was submitted by the learned defence counsel that although the alleged recovery has been effected from the bags but still the compliance of Section 50 of NDPS Act was to be made because the accused have been personally searched as well with the apprehension that they may be carrying some contraband on their person. It was submitted that the Notices (Ex. PW1/A and Ex. PW1/B) which were served upon the accused under Section 50 Act do not carry particulars of FIR etc. Further, the reply of the accused Mafidul Islam (Ex. PW1/D) is in English language. It was submitted that the accused was a native of Assam and has no knowledge of English language. Therefore, it was submitted that there is no compliance of Section 50 of NDPS Act. In support of this argument reliance was placed on following judgments :

(i) Vijay Sinh Chandubha Jadeja vs. State of Gurarat AIR 2011 SC 77

(ii) Gurjant Singh @ Janta vs. State of Punjab 2013 AIR (SCW) 6074

(iii) NCB vs. Sukhdev Raj Sodhi (2011) 6 SCC 392

(iv) State of Rajasthan vs. Parmanand & Anr. (2014) 5 SCC 345

14.0 So far as the compliance with Section 50 of NDPS Act is S.C. No. 6880/2016 State Vs. Mohd. Ali & Anr.

concerned, this provision has no applicability where the recovery of contraband substance has been effected not from the person of the accused but from the brief case, suit case, bag or Thaila etc. carried by the accused. In the case of Jernail Singh vs. State of Punjab AIR 2011 SC 964, it was observed;

"13...The aforesaid Section can be invoked only in cases where the drug/narcotic/NDPS substance is recovered as a consequence of the body search of the accused. In case, the recovery of the narcotic is made from a container being carried by the individual, the provisions of Section 50 would not be attracted. This court in the case of Kalema Tumba vs. State of Maharastra : (1999) 8 SCC 257 discussed the provisions pertaining to 'personal search' under Section 50 of the NDPS Act and held as follows ;

...if a person is carrying a bag or some other article with him and narcotic drug or psychotropic substance is found from it, it cannot be said that it was found from his person."

15.0 The Hon'ble Supreme Court has taken this consistent view and had earlier observed in the case of State of H.P. vs. Pawan Kumar (2005) 4 SCC 350 and also in Megh Singh vs. State of Punjab (2003) 8 SCC 666 that a bare reading of Section 50 shows that it applies in case of personal search of a person. It does not extend to a search of a vehicle or container or a bag or premises. The learned counsel for the accused laid emphasis on the case of State of Rajasthan vs. Permanand (Supra) where S.C. No. 6880/2016 State Vs. Mohd. Ali & Anr.

recovery was effected from the bags carried by the accused person after the service of the notice under section 50 of NDPS Act but still it was observed that compliance with Section 50 of NDPS Act was required. In the said case notice was not found to be in order because it was a joint notice to both the accused persons. Therefore, it was opined that there was no due compliance with the provisions of Section 50 of NDPS Act.

16.0 In the present case admittedly the recovery is not from the person of accused persons but the contraband substance has been recovered from their bags which they were carrying on their shoulders and the search was conducted subsequent to the service of notice under Section 50 of NDPS Act. In the present case, the notices have been served upon both the accused persons under section 50 of NDPS Act separately. The notice served to the accused Mohd. Ali is Ex. PW1/A and notice served to the accused Mafidul Islam is Ex. PW1/B. Their reply is on back side of the notice itself as Ex. PW1/C and Ex. 1/D respectively.

17.0 Once a person is told about his legal right of search before a Gazetted Officer or a Magistrate, the option would rest with the said person to opt for his search before a Gazetted Officer or a Magistrate or get himself searched by the officer serving him with a notice. The question is what could be a mode of a service of notice upon the accused/suspect. Section 50 of NDPS Act provides that if a S.C. No. 6880/2016 State Vs. Mohd. Ali & Anr.

suspect so requires then he has to be taken to the nearest Gazetted Officer or Magistrate for search without any unnecessary delay. The question would arise about the mode of communicating to the suspect about his legal right of having his search before a Gazetted Officer or a Magistrate. The Hon'ble Supreme Court in the case of Krishna Kanwar vs. State of Rajasthan (2004) 2 SCC 608, has held that there is no specific form prescribed or initiated for conveying the information required to be given under Section 50 of NDPS Act.

18.0 Coming to the facts of the present case, the notice under Section 50 of NDPS Act in very categorical terms conveys to the accused that it was their legal right to conduct the search of the police party before their search is conducted and they can also have their search before a Gazetted officer or a Magistrate and the presence of Gazetted Officer or a Magistrate can be made and they be searched in the presence of Gazetted Officer or Magistrate. Not only this, they were also informed and given the option to conduct the search of private cars of the police officials before their search. The accused Mohd. Ali did not opt for the search and since he was illiterate, his reply was written by Inspector Arti Sharma. While accused Mafidul Islam had written his reply in English language as Ex. PW1/D. From the language used in the reply and the notice, it can be inferred that the accused were apprised about their legal S.C. No. 6880/2016 State Vs. Mohd. Ali & Anr.

right of search before a Gazetted Officer or Magistrate, although it was a case of recovery of contraband from the bags carried by the accused. Still there is a due compliance of section 50 of NDPS Act. It was submitted by the counsel for the accused Mafidul Islam that he is a resident of Assam, therefore, he does not understand language and was not conversant with English language as well. This, however, is not an appealing argument considering the statement of accused under section 313 Cr.P.C. The accused Mafidul Islam in his statement under section 313 Cr.P.C has stated that he had come to Delhi to purchase cheap computer when he was picked up by the police officials from the Nizamuddin Railway Station. He stated that he was asked certain questions in Hindi, which he could not reply as he cannot write or understand Hindi. The prosecution witnesses have also stated that accused Mafidul Islam has written reply in English as he was not conversant in writing Hindi. If the accused was not well conversant with Hindi or English language then how he could have communicated with the shopkeepers for the purchase of cheap computer. It is hard to believe that a person who is not conversant with English or Hindi would come to Delhi with any business purpose or for the purpose of doing some purchase. So the circumstances clearly indicate that though the accused Mafidul Islam might not have been conversant with Hindi language and writing the same, he was conversant with the English language to S.C. No. 6880/2016 State Vs. Mohd. Ali & Anr.

write the reply.

19. The learned counsels for the accused have relied upon the judgments in State of Rajasthan vs. Permanand (Supra) and Vijay Sinh Chandubha Jadeja vs. State of Gurarat (Supra) to submit the argument that the police officials should have taken the accused before a Gazetted Officer or a Magistrate to comply with the provisions of Section 50 of NDPS Act. In this regard it will be pertinent to refer to the observation of the Hon'ble Supreme Court in the case of Vijay Sinh Chandubha Jadeja vs. State of Gurarat (Supra) which is Constitution Bench judgment and wherein it was observed that "we also feel that though Section 50 of NDPS Act gives an option to the empowering officer to take such person (Suspect) either before the nearest Gazetted Officer or the Magistrate but in order to impart authenticity, transparency and creditworthiness to the entire proceedings, in the first instance, an endeavour should be made to produce the suspect before the nearest Magistrate. The law on the point of compliance of Section 50 of NDPS Act has been well settled in the case of Vijay Sinh Chandubha Jadeja vs. State of Gurarat. With regard to the observation made in this judgment, the Hon'ble Delhi High Court in the case of Lekan Akins vs. State (NCT of Delhi) Crl. Appeal 483/2014 date of decision 12.12.2014, has held that the law laid S.C. No. 6880/2016 State Vs. Mohd. Ali & Anr.

down by the Hon'ble Supreme Court in the aforesaid decision are unambiguous about what is mandatory to be conveyed to the suspect in terms of requirement of Section 50 (1) of NDPS Act. With regard to the observation of the Hon'ble Supreme Court in Vijay Sinh Chandubha Jadeja's case (Supra) that an endeavour should be made to produce the suspect before the nearest Magistrate, the Hon'ble Delhi High Court has held that it was in nature of a obiter dictum.

20. Coming to the facts of the present case, despite the fact that the recovery has been effected from the bags carried by the accused persons, the notice under section 50 of NDPS Act has been duly served upon the accused whereby they were informed about their legal right of search before a Gazetted Officer or a Magistrate. Therefore, there is a due compliance with the provisions in Section 50 of NDPS Act.

SECTION 41 AND 42 OF NDPS ACT

21. The learned counsels for the accused persons have argued that there is non-compliance of the provisions of section 41 of NDPS Act and Section 42 of NDPS Act. It was submitted that Inspector Arti Sharma (PW9) did not obtain any search warrant under section 41(1) of NDPS Act or under section 41 (2) of NDPS Act. It was also argued that there was no communication of the information to the "immediate" officer superior by Inspector Arti S.C. No. 6880/2016 State Vs. Mohd. Ali & Anr.

Sharma. Therefore, there is a violation of section 42 (1) of NDPS Act.

21.1 Ld. defence counsels have relied upon the following judgements :

(i) Kishan Chand vs. State of Haryana Crl. Appeal No. 1375 of 2008 decided on 13 December, 2012.

(ii) State of Punjab vs. Balbir Singh (1994) 3 SCC 299.

(iii) Sukhdev Singh vs. State of Haryana Crl. Appeal No. 2118 of 2008 decided on 13.12.2012.

(iv) State of Rajasthan vs. Jag Raj Singh @ Hansa, Criminal Appeal No. 1233 of 2006, decided on 29.06.2016.

(v) Om Prakash vs State Crl. A. 1696/2014 Decided on 18 th July, 2016.

(vi) State of Karnataka vs. D. N. Baddi Criminal Appeal No. 123 of 1997, decided on 05.08.2010.

21.2 Section 41 of the NDPS Act deals with the powers to issue a warrant and authorization for search of any building or conveyance etc for recovery of such contraband substances. Under sub-section (1) of Section 41 of the above said Act, a Magistrate of a given class has been empowered to issue a warrant for the arrest of any person whom he has reason to believe to have committed any offence under the Act or a warrant for the search of any building, conveyance or a place etc, whether by day or by night, in which he has reason to believe that any narcotic drug or psychotropic substance etc, in respect of which an offence punishable under the above Act has been committed, or any document or article etc., S.C. No. 6880/2016 State Vs. Mohd. Ali & Anr.

which may furnish evidence of the commission of such offence, is kept or concealed. Under sub-section (2) of Section 41 of the said Act, a Gazetted Officer of some given departments, as may be empowered in this behalf by a general or special order issued by the State or Central Government, has been empowered to issue an authorization for arrest of such a person or the search of such a building or conveyance etc if he has reason to believe, from his personal knowledge or information given by any person and taken down in writing, that any person has committed such an offence or any such narcotic drug or psychotropic substance etc is lying concealed in such a building or conveyance etc and as per this sub- section the above authorization has to be made to any officer subordinate to him, but superior in rank to a peon, sepoy or constable etc. In terms of sub-section (3) of the above Section, the officer who issues such warrant or authorization and the officer to whom the same is issued shall both have all the powers of an officer acting U/S 42 of the said Act.

21.3 Section 42 of the NDPS Act deals with the powers of entry, search, seizure and arrest etc without a warrant or authorization and sub-section (1) thereof provides that if an empowered officer of a given rank, i.e. above the rank of peon, sepoy or constable etc, of the departments as stated above, has reason to believe from his personal knowledge or information given S.C. No. 6880/2016 State Vs. Mohd. Ali & Anr.

by any person and taken down in writing, that any such narcotic drug or psychotropic substance etc is being transported or concealed in any building or conveyance etc then he can enter into and search such building, conveyance or place etc and seize such drug or substance and he can also detain, search and also arrest, if he thinks proper, any person whom he has reason to believe to have committed an offence punishable under the Act. However, the above power of search, seizure and arrest can be exercised by him before sunset and after sunrise only and for effecting the search or seizure etc between the sunset and sunrise, a search warrant or authorization, as mentioned in Section 41 of the NDPS Act, is required by him in his favour. However, if such officer has reasons to believe that a search warrant or authorization cannot be obtained without affording an opportunity for the concealment of evidence or facility for the escape of an offender then in such an urgency he can even effect such search, seizure and arrest etc between sunset and sunrise, provided that he record the grounds of his above belief for doing the same. As per sub-section (2) of Section 42 NDPS Act, a copy of the above information or the grounds of belief taken down in writing by such an officer has to be sent by him to his immediate superior official within 72 hours. Under both the above Sections 41 and 42 of the NDPS Act, if the source of the information is not the personal knowledge of the person receiving it, then the same is S.C. No. 6880/2016 State Vs. Mohd. Ali & Anr.

required to be reduced into writing.

21.4 It is settled position of law that compliance of provision of Section 42 of NDPS Act is mandatory. In the case of "Kishan Chand vs State of Haryana 2013 (I) AD (SC) 39", Hon'ble Supreme Court has categorically observed that provisions like Section 42 and 50 of the Act are the provisions which require exact and definite compliance as opposed to the principle of substantial compliance. Once there is total non-compliance and these provisions being mandatory in nature, the Prosecution case must fail.

21.5 It is clear from the above section 41 and 42 of the NDPS Act that if the source of information is not the personal knowledge of the persons receiving it then the same is required to be reduced into writing. Section 41 (2) of NDPS Act speaks about a Gazetted officer of the department mentioned therein who receives the information. Section 42 (1) of NDPS Act is applicable when the information is received by an empowered officer other that a Gazetted Officer as mentioned in section 41 (2) of NDPS Act. The requirement of a search authorization by an empowered officer who receives an information under section 42(1) of NDPS Act would arise only when search is to be conducted after Sunset and before Sunrise and that too in any building, conveyance or place. First of all it is to be noted that Inspector Arti Sharma (PW9) had reduced the information into S.C. No. 6880/2016 State Vs. Mohd. Ali & Anr.

writing by noting down DD No. 5 (Ex. PW7A) which is a due compliance with the provisions of Section 42 (1) of NDPS Act. Since the accused have been apprehended in an open place during the day time between Sunrise and Sunset, there was no mandatory requirement of any authorization from a Gazetted officer. So there is no deficiency in the compliance of section 42 (1) of NDPS Act. 21.6 The learned counsel for accused had further argued that the information was not conveyed to the immediate officer separately by Inspector Arti Sharma. It is the case of the prosecution that Inspector Arti Sharma was posted in the office of SIT, Crime Branch, Rohini and she conveyed the information to the Additional DCP, SIT, Crime Branch Sh. Joy Tirkey (PW7). The learned counsel for accused had argued that PW12 SI Sharad Kohli has admitted in his examination that in their hierarchy, the officer above Inspector is ACP. However, the learned defence counsel has ignored this fact that PW12 had also stated that in the office of SIT, Crime Branch, it was an Additional DCP, although he was not aware whether there was any circular in this regard or not. PW12 SI Sharad Kohli has, therefore, clarified that the Inspector, SIT, Crime Branch was to report to the Additional DCP. The defence counsel submitted that the prosecution has not produced any circular/notice to show that in the office of SIT, Crime Branch the Inspector posted there, was to report to Addl. DCP. This argument does not find S.C. No. 6880/2016 State Vs. Mohd. Ali & Anr.

favour with the Court, firstly, it has been clarified by PW12 SI Sharad Kohli that in the office of SIT, Crime Branch, Inspector was reporting to Addl. DCP, secondly, the emphasis of Section 42 (1) of NDPS Act is on the fact that the officer receiving the information should convey it to his superior officer. The word 'immediate' therein would only convey that the superior officer who is in the closest proximity of the officer receiving the information should be conveyed about the information. Moreover, the prosecution case cannot be thrown out only on this ground that the information was not conveyed to immediate officer superior of the empowered officer. FIR

22. The learned counsel for the accused have argued that the FIR Ex. PW2/A has not been proved as per the law. It was submitted that the Ex. PW2/A is a computerized copy of the FIR. HC Shamsher (PW2) was the Duty Officer at PS-Crime Branch, who has deposed that on receipt of the rukka he had registered the FIR. However, since it is a computerized FIR, there was a requirement for compliance with Section 65B of Indian Evidence Act, but in the present case no such certificate has been submitted. The learned counsels have relied upon the case Anwar P.V. vs. P.K. Basheer & Ors. Civil Appeal No. 4226/2012 decided on 18 th September 2014 wherein it was observed with regard to Section 65B of Indian Evidence Act that an electronic record by way of secondary S.C. No. 6880/2016 State Vs. Mohd. Ali & Anr.

evidence shall not be admitted in the evidence unless the requirements under section 65B of Indian Evidence Act are satisfied. Thus, in the case of CD, VCD, Chip etc. the same shall be accompanied by a certificate in terms of Section 65B of Evidence Act obtained at the time of taking the documents. 22.1 I have considered the submission of the learned counsels on this issue. The electronic record is vulnerable to manipulation, therefore, its veracity and reliability is always cause of concern. Therefore, Section 65B of Evidence Act was incorporated and it was mandatory to submit a certificate under Section 65B of Indian Evidence Act for admissibility of electronic record as secondary evidence. In the case where the computer has been utilized only as a tool as a typewriter for converting the text from one form to other such as a letter, then software of the computer does not have much role to play and the only function the computer plays is that of a typewriter. For example in case of registration of FIR, the writer of the FIR on the computer types the contents of the FIR, take out a print of the said documents/FIR verifying the text which has been generated and authenticate the same by putting his signature. The typing and taking out the print of the FIR simultaneously diminish the role of computer as a mechanical device nor the computer is used in such a situation for storage of any data which is reproduced later on. Typing of an FIR, taking out S.C. No. 6880/2016 State Vs. Mohd. Ali & Anr.

its print and signing of the text by the concerned person simultaneously is equivalent to typing a letter on a typewriter. Therefore, in such a case, in my considered view, there is no requirement of any certificate under section 65B of Indian Evidence Act with regard to an FIR which is a computerized print out. The FIR Ex. PW2/A has been signed by PW2 HC Shamsher Singh, who has identified his signature on the same.

DELAY IN SENDING THE SAMPLES AND DIFFERENCE IN WEIGHT OF SAMPLE OF CONTRABAND SUBSTANCE

23. The learned defence counsels have assailed the case of the prosecution on the ground that there has been a considerable delay in sending the samples to the FSL and therefore there is a possibility of tampering with the samples because in between the time the seal and the samples have remained in the police station only. It was submitted that another important fact which indicate tampering of the samples is the difference in the weights of samples which have been noticed in the matter. It was submitted that the samples which were taken by the Inspector Arti Sharma (PW9) were of 1000 Gms each and as per the prosecution case the samples contained in the pullindas Mark A and C were having 1000 Gms of Ganja therein. However, when these samples were opened in the FSL, they weighed 1083.51 Gms and 1129.76 Gms. Thus, it was submitted by the learned defence counsels that there is a possibility of tampering with the samples when they were in the custody of S.C. No. 6880/2016 State Vs. Mohd. Ali & Anr.

police officials. So long as the question of delay in sending the samples is concerned, the learned defence counsels has relied upon the following judgments :

(i) Valsala vs. State of Kerala (1993) Supp3 SCC 665

(ii) State of Haryana vs. Asu Ram Cri. N. no. 103-DBA of 1997- Decided on 1.04.2014.

(iii) Rajesh Jagdamba Awasthi vs. State of Goa Crl. Appeal No. 1148 of 1999, date of decision 03.11.2004.

(iv) Amarjit Singh vs. State of Punjab Crl. Appeal No. 534-SB of 1997, date of decision 3.3.2008.

(v) Lachhman Dass vs. State of Punjab Crl. Appeal No. 2266-

SB of 2005, date of decision 10.09.2009.

23.1 But the question is whether the delay in sending sample to FSL by itself would be a ground to believe that there has been a tampering with the samples. In the case of Hardip Singh vs. State of Punjab (2008) 8SCC 857, the Hon'ble Supreme Court while dealing with the question of delay in sending of sample of Opium had pointed that it was of no consequence for the fact that recovery of said sample from the possession of the appellant had been proved and established by cogent and reliable evidence and that apart it had come in evidence that till the date all parcels of sample were received by the chemical examiner, the seal put on that parcel was intact. A similar contention was also rejected in the case of Mohan Lal vs. Rajasthan (2015) 6 SCC 222. So, delay in sending the sample parcel to FSL, would not be fatal to prosecution S.C. No. 6880/2016 State Vs. Mohd. Ali & Anr.

if the link evidence rule out any tampering with the case property. It has come in the statement of PW9 Inspector Arti Sharma that she had prepared sample pullinda on which she had put a seal of AS. She also filled up the form FSL on which the seal of AS was affixed. She handed over the seal to HC Bahadur (PW11). She has further deposed that she handed over the parcels with FSL form and the rukka to HC Rajender (PW8) who was directed to hand over the samples and the case property to the SHO of PS-Crime Branch. PW8 HC Rajender Kumar has deposed that he handed over all the sealed parcels, form FSL to Inspector C.R. Meena, SHO of PS-Crime Branch. PW6 Inspector C.R. Meena has deposed that he had received all the pullindas with seal of AS and the same seal was also found affixed on the FSL form. He deposed that he put his seal of CRM on all the pullindas and form FSL. He handed over the same to the MHC(M) HC Jag Narain. PW3 HC Jag Narain has deposed that Inspector C.R. Meena had handed over to him pullinda Mark A to D and Mark A1, A2, C1 and C2 alongwith FSL form and copy of seizure memo. He deposed that all the parcels and the FSL form were having the seal of AS and CRM. He deposited the same in Malkhana vide entry in register no. 19 Ex. PW3/A. 23.2 PW3 HC Jag Narain has further deposed that on 15.11.11, he had sent the sample parcel A and C alongwith form FSL having the seal of AS and CRM in intact condition to the FSL through S.C. No. 6880/2016 State Vs. Mohd. Ali & Anr.

Ct. Deepak. PW1 HC Deepak has deposed that he had taken two 'sealed' samples with the FSL form having the seal of AS and CRM from the MHC(M). He deposited the same with the FSL and obtained the receipt of depositing the same. The FSL result Ex. PW12/B states that two sealed parcels Mark A and C having the seal of AS and CRM were received with the seal in intact condition which tallied with the specimen seal as per the forwarding letter (FSL from). Thus, the evidence led by the prosecution has established that the sample parcel mark A and C remained intact with the seal right from the time they were seized and till they were received in the FSL. Therefore, delay in sending of sample to FSL is not of much importance.

23.3 The learned counsels for accused had further argued that the weight of the sample as per the prosecution was 1 Kg. (1000 Gms each) but at the FSL their weight found to be different i.e. 1083.51 Gms and 1129.76 Gms each. It may be mentioned that the weight which has been mentioned in the FSL form includes the weight of plastic sack in which the samples were taken and weighed by the FSL. Moreover, such a discrepancy in the weight of sample can also be on account of different weighing scale being used by the police officials and the FSL. Such type of discrepancy in the weight of the sample cannot be held material, so as to doubt the genuineness of the sample as the mere possibility of tampering with S.C. No. 6880/2016 State Vs. Mohd. Ali & Anr.

the sample cannot be made a ground to draw an inference that the same were actually tampered with.

23.4 The learned counsels for accused have also submitted that the possibility of the tampering with the case property becomes more prominent in view of the evidence on the record. It has been submitted by the learned counsel that the case property when produced during the examination of PW8 HC Rajender Singh was identified by the witnesses as a "leave and grass type substance"

and even the Court had observed that the Katta which was produced in the Court was having some stitches with plastic thread at one place which was explained by MHC(M) by saying that he had stitched the plastic katta as it was bitten by rats. The possibility that this plastic Katta was damaged while being in custody of MHC(M) cannot be ruled out as this plastic katta Ex. PW7 when produced during the examination PW1 HC Deepak, was found to be duly sealed without their being any extra stitches on the same. The defence counsels had further argued that the substance which was recovered from the accused has been described as "grassy substance having brown colour" in the seizure memo as well in rukka. However, when the sample packets were opened in the FSL for testing, then it was observed as "brownish green pressed vegetative flowering and fruiting top material". The learned counsel has submitted that Ganja has been defined in Section 2 (iii) (b) of S.C. No. 6880/2016 State Vs. Mohd. Ali & Anr.

the NDPS Act as under :

"(b) ganja, that is, the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops), by whatever name they may be known or designated; and "

He submitted that the different description of the substance allegedly recovered from the accused further makes a strong case for tampering with the case property.

24. It has come in the evidence particularly in the statement of Inspector Arti Sharma (PW9) and other recovery witnesses that it was a grassy substance which was found in the bags carried by the accused and they had identified the substance as Ganja on the basis of its smell. The witnesses have described the substance in a crude manner. No doubt the observation of the officials could have gone wrong, but the samples which have been sealed at the spot and received at the FSL with the seal intact, on the basis of their scientific examination have been confirmed as "Ganja". Therefore, difference in the description of the substance by the witnesses is of not much importance in present case.

FSL REPORT

25. The FSL report Ex. PW12/B has proved that the samples were received intact and on physical, microscopic, chemical and TCL examination, the samples A and C were found to be Ganja (Cannabis). Ld. Counsel for accused has submitted that this report S.C. No. 6880/2016 State Vs. Mohd. Ali & Anr.

has not been proved on the record. The Additional Public prosecutor, however, submitted that it was not required to be proved by virtue of section 293 CrP.C. This report being prepared by Chemical Examiner was per se admissible in evidence. As per section 293 Cr.P.C. a report prepared by any Chemical Examiner or Assistant Chemical Examiner to the government may be used as evidence in inquiry, trial or other proceedings. However, such examiner can be called in the Court. In the present case the report has been prepared by Sh. Subhra Kumar Paul, designated as Senior Scientific Officer (Chemistry) Forensics Science cum Ex-Officio Chemical Examiner to the Government of National Capital Territory of Delhi. The designation of Sh. Subhra Kumar Paul, therefore shows that he is an Ex. Officio Chemical Examiner to the Government. Therefore, report prepared by him is covered under section 293 Cr.P.C. Accordingly, the report is admissible in evidence. Although it was upon the accused to make a request for summoning of this official from FSL for the purpose of cross-examination, however, the accused have not preferred to call him for the purpose of examination.

MOTIVATED AND DEFECTIVE INVESTIGATION

26. The learned counsel for accused have also taken a plea that the prosecution case is motivated and there a deliberate attempt to save one Amma @ Kanan Shukla whose name has S.C. No. 6880/2016 State Vs. Mohd. Ali & Anr.

initially figured in the secret information received by Inspector Arti Sharma. It has come in the evidence that an attempt was made to apprehend Amma @ Kanan Shukla and police officials visited the house of the said Amma @ Kanan Shukla which was pointed out by the accused. The Investigation Officer met Amma @ Kanan on 04.11.2011 but did not find anything incriminating in her house. Here I would like to mention that the investigation agencies do not proceed with the investigation with same zeal and enthusiasm once a recovery of contraband has been effected and the same thing has happened in the present case. The IO appeared to have made half hearted attempt/efforts to apprehend Amma @ Kanan Shukla. Though the statement of Amma @ Kanan Shukla was recorded under section 67 of NDPS Act and her house was also searched on 04.11.11, but nothing incriminating was found. Obviously after so much time has passed from the date of apprehension of the accused persons when name of Amma @ Kanan Shukla appeared in their disclosure statements as the recipient of contraband, nothing could have been found by the Investigating Officer in the house of Amma @ Kanan. Therefore, I am constrained to observe that the police officials who have conducted the investigation of this case have shown lack of diligence and sincere efforts to proceed in the investigation qua Amma @ Kanan Shukla. However, that cannot be a ground to disbelieve their statements on the point of recovery of S.C. No. 6880/2016 State Vs. Mohd. Ali & Anr.

contraband substance from the accused persons. SAMPLING PROCEDURE

27. Another deficiency which is noticeable in the investigation for which the accused needs to be given benefit is about sample procedure adopted by the Inspector Arti Sharma (PW9). As per the case of the prosecution, the accused Mohd. Ali and accused Mafidul Islam were carrying two bags each. The bags carried by the accused Mohd. Ali were having small plastic white colour polythenes containing substance smelling like Ganja. Inspector Arti Sharma (PW9) took out the substance in white colour polythenes found in the bags carried by accused Mohd. Ali into an another plastic bag. This plastic bag was then given marking as A1. Thereafter the weight of the bag was taken. Similarly, the another bag carried by Mohd. Ali was checked which was also having number of white colour polythenes which were not counted. The substance of those polythenes was taken out in a plastic bag which was given mark as A2. Once the substance carried by the accused in two plastic bags was put into two separate bags which were given Mark A1 and A2, the proceedings of taking sample was started. Inspector Arti Sharma (PW9) took 500 Gms from the bag A1 and 500 Gms from the bag A2. She mixed up this substance and put the same in an another plastic bag which was given marking as Mark A. Similar procedure was adopted with regard to the recovery effected S.C. No. 6880/2016 State Vs. Mohd. Ali & Anr.

from the accused Mafidul Islam. He was carrying two bags, the contents of those two bags which were having number of white polythenes were put in the bags Mark C1 and C2. Thereafter, 500 Gms of substance was taken from the bags C1 and C2 and put into another bag which was given marking C.

28. These sample packets bearing mark A and C were sent to FSL. The sample procedure adopted by Inspector Arti Sharma (PW9) is defective as it is not as per the Standard Instructions of NCB. Sample has to be taken from each packet separately. But in the present case Inspector Arti Sharma (PW9) had mixed the sample taken from two separate bags and placed in one bag, though samples from each bag should have been kept separate. Therefore, a suspicion arises in the mind that one of the bag may not be having Ganja. Once the substance taken from both the bags is mixed and sample gave positive test for contraband substance, then one can logically infer with certainty that at least one of the bag was having contraband but there may not be any certainty that both the bags were having contraband. What is the effect of this defective procedure of sampling by Inspector Arti Sharma (PW9) ? The accused have been put to trial for the offence under section 20 (b) (C) of the NDPS Act as the quantity of Ganja recovered from each accused was stated to be more than 20 Kg. As per the Notification specifying "small quantity" and "commercial quantity", a quantity of S.C. No. 6880/2016 State Vs. Mohd. Ali & Anr.

one Kg of Ganja is "small quantity" and a quantity of 20 Kg or more is a "commercial quantity". For the offence of keeping Ganja of a small quantity, the accused would be liable for an imprisonment of one year with a fine and for keeping a commercial quantity of Ganja an accused would be liable to imprisonment of not less than 10 years. If the quantity of Ganja is more than small quantity but less than commercial quantity it would be an "intermediate quantity" for which there is a punishment which may extend upto 10 years with fine.

29. In the present case, both accused were stated to be carrying two bags each and the quantity of both the bags was more than 20 Kg. But here is the case where the possibility of one of the bag not having the contraband (Ganja) cannot be ruled out. Therefore, the quantity which the accused said to be having would fall in the category of "intermediate quantity".

30. In the case of Luvkesh Kumar vs. State Criminal Appeal no. 344/2011 decided on 06.10.15, the Hon'ble Delhi High Court on account of some discrepancy in the weight of sample had given benefit to the accused and had converted the conviction of the accused for keeping in possession Ganja which was less than commercial quantity. Applying the same analogy by giving the benefit of doubt qua the total quantity of Ganja in possession of the accused, it can be said that both accused were in possession of S.C. No. 6880/2016 State Vs. Mohd. Ali & Anr.

Ganja of intermediate quantity.

CONSPIRACY

31. The prosecution has also alleged that both the accused were part of criminal conspiracy to deal in contraband substance and having brought the contraband substance i.e. Ganja into Delhi in furtherance of the criminal conspiracy. However, it has noticed from the evidence on the record that the prosecution was not able to establish its case for the offence under section 29 of NDPS Act. Section 29 of NDPS Act provides punishment for abetting the commission for an offence under the NDPS Act or being a party to a criminal conspiracy to commit offence which is punishable under NDPS Act. So far as the abettment of the commission of offence is concerned, the accused persons themselves have been found in possession of the contraband substance. Therefore, there is no question of abettment by them. So far as their being a party to a criminal conspiracy is concerned, the evidence is found deficient to show that they have been a part of a criminal conspiracy and sharing the information together. The gist of a conspiracy is an agreement by two or more persons to do or cause to be done an illegal act or legal act by illegal means. The unlawful agreement is the essence of conspiracy. A prior meeting of mind to do criminal act together is very much necessary to establish a charge of conspiracy against the accused persons. In the present case, the S.C. No. 6880/2016 State Vs. Mohd. Ali & Anr.

prosecution has claimed that the accused Mohd. Ali was found in possession of mobile phone no. 9560695800 and accused Mafidul Islam was in possession of mobile no. 9859528049. It is the case of the prosecution that both the accused had conspired with one Kanan Shukla to procure Ganja from Odisha and supply it in Delhi. The prosecution obtained the mobile number of said Kanan Shukla bearing no. 9583473483 and the CDR of all these mobile phone numbers. Even as per the case of the prosecution there was no contact between the accused Mafidul Islam with Kanan Shukla on their respective phones, although there is record of telephonic calls on the mobile phones of the accused Mohd. Ali and said Kanan Shukla, but this call detail record pertains to the month of August 2011 and September 2011 and there was no contact in the month of October 2011. The entire conspiracy angle in the present case has emerged from the disclosure statement of the accused person and no other evidence could be collected by the prosecution to show that there was any conspiracy between the accused persons to deal with contraband substance i.e. to procure the same and supply it in Delhi at the instance of Ms. Kanan Shukla. Therefore, the element of previous meeting of mind is found missing in the present case. Both accused are liable only for their individual acts. Therefore, the charge under section 29 of NDPS Act is not established against the accused persons.

S.C. No. 6880/2016                                           State Vs. Mohd. Ali & Anr.
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CONCLUSION

32. In view of the above discussion, both the accused persons namely Mohd. Ali and Mafidul Islam are acquitted of the charge under section 29 of NDPS Act read with section 21 (C) of NDPS Act. Both the accused are held guilty for the offence under section 20 (b) (ii) (B) of NDPS Act for keeping in possession and importing into Delhi the contraband substance i.e. Ganja of intermediate quantity and convicted accordingly.

33. Order on sentence will be announced after hearing both accused.



Announced in open Court on
07th March, 2017.                                  (Ajay Kumar Kuhar)
                                                   Special Judge (NDPS)
                                                    South District: Saket




S.C. No. 6880/2016                                             State Vs. Mohd. Ali & Anr.

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S.C. No. 6880/2016 State vs . Mohd. Ali & Anr. on 10 March, 2017