Delhi District Court
State vs . Anil @ Bhola And Ors. Sc No. 24/11 on 30 May, 2015
State vs. Anil @ Bhola and ors. SC No. 24/11
IN THE COURT OF SH. DEEPAK GARG : SPECIAL JUDGE NDPS
PATIALA HOUSE COURTS: NEW DELHI
SC No. 24/11
ID No. 02403R0053152011
FIR No. 08/11
PS Special Cell
u/s 21(c)/25A/29 of NDPS Act
State Vs. 1. Anil @ Bhola
S/o Chhattar Singh
R/o B155, Raghubir Nagar,
Delhi
2. Hari Prasad Verma
S/o Sh. Mahender Singh
R/o DB695, near Bada Jain Mandir,
Main Ganj Bazar, Sonepat, Haryana
3. Om Prakash
S/o Sh. Shankar Lal
R/o Villae Buradiya Joga, PS Misrouli,
Distt. Jhalawar, Rajasthan
4. Nand Kishore Tiwari
S/o Sh. Prem Chand Tiwari
R/o A108, Ganesh Puri, Behind ShivChowk
Shalimar Garden Extension, Sahibabad,
Ghaziabad, UP
FIR No. 8/11 PS Special Cell Page 1 of 57
State vs. Anil @ Bhola and ors. SC No. 24/11
Date of Institution : 06.07.2011
Judgment reserved on : 27.05.2015
Date of pronouncement : 30.05.2015
JUDGMENT
1. The chargesheet in the present case has been filed against the aforementioned accused persons u/s 21, 22, 25A and 29 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as 'NDPS Act').
2. Briefly stated the allegations made against the accused persons that can be culled out from the contents of the chargesheet and the documents filed with the same are as follows:
(a) On 14/02/2011 at about 11:30 AM, one secret informer came to the office of Special Cell, NR, Rohini and informed SI Virender Tyagi that one person namely Hari Prasad r/o Sonepat who was indulging in processing and supply of heroin in various part of Delhi would be coming in between 1:152:15 PM to Montfort School, Ashok Vihar, Delhi in his golden colour Maruti car bearing no. UP16B 5987 to deliver a consignment of drugs to one of his contacts namely Anil @ Bhola.
(b) SI Virender Tyagi produced the secret informer before Inspector Attar Singh who in turn telephonically informed ACP Subhash Tandon about the information received. ACP Subhash Tandon directed for the FIR No. 8/11 PS Special Cell Page 2 of 57 State vs. Anil @ Bhola and ors. SC No. 24/11 conduct of a raid. SI Virender Tyagi lodged the information in DD No. 10 in this regard and as per the directions of the ACP, a raiding team comprising SI Virender Tyagi, SI Prahlad Singh, ASI Rakesh, HC Raj Singh, HC Ram Niwas, ASI Bhagat Bahadur and the secret informer left the office of Special Cell at about 12:30 PM in govt. vehicle no. DL1CH 9796 and reached the spot at about 01:00 PM.
(c) On reaching the spot, IO requested certain passersby to join the raiding team but none of them agreed to do so. IO briefed the team members and the members of the raiding team positioned themselves at strategic points and started waiting. At about 01.30 PM, one person was seen coming in motor cycle Hero Honda CBZ no. DL9SZ6023 black & red colour. The said person stopped the motor cycle at police colony side and started waiting for someone and he was identified as the suspect Anil @ Bhola by the secret informer. After 10 minutes, one golden coloured Maruti car bearing no. UP16B5987 came from the Keshav Puram side and stopped near motor cycle. One person got down from the said Maruti car and he was identified as the suspect Hari Prasad by the secret informer. Thereafter, both started talking with each other and after 5 minutes thereafter the driver of the car took out a white polythene out of his Maruti car and handed over the same to the motor cycle rider and at that point of time, both were surrounded by the raiding team. FIR No. 8/11 PS Special Cell Page 3 of 57
State vs. Anil @ Bhola and ors. SC No. 24/11 (d) The IO introduced himself and the members of the raiding team to
the said persons and apprised them about the information within his knowledge. On enquiry, the accused persons revealed their names as Anil @ Bhola and Hari Prasad Verma. Before initiating proceedings IO requested 4 passersby to join the proceedings but none of them agreed to do so. Both were then informed about their legal rights and were issued notices u/s 50 of NDPS Act and were made to understand that they have a legal right to be searched before a Magistrate or a Gazetted Officer. Both the accused refused to exercise the said rights and wrote their refusal in their own handwriting.
(e) Thereafter, SI Virender Tyagi conducted the search of the accused Anil @ Bhola and the white colour polythene which was being held by this accused and which was handed over to him by accused Hari Prasad was opened and on checking was found containing gray colour substance which on testing with the field testing kit gave positive for heroin. The said recovered substance was then weighed and its weight came out to be 500 grams. Nothing incriminating was recovered from the personal search of accused Hari Prasad. Thereafter SI Virender Tyagi conducted the search of the car of accused Hari Prasad and during the said search one white colour packet was found under the driver seat. On opening the polythene, it was found containing gray colour powder which on testing FIR No. 8/11 PS Special Cell Page 4 of 57 State vs. Anil @ Bhola and ors. SC No. 24/11 with the field testing kit gave positive for heroin. The said recovered substance was then weighed and its weight came out to be 500 grams.
(f) Two samples of 5 grams each were taken out from the packet which was recovered from car of the accused Hari Prasad Verma and put in separate small transparent polythene pouches and converted into cloth pullandas with the help of white cloth and given mark A and B. The polythene containing the remaining heroin was also converted into cloth pullanda and was given mark C. All the Pullandas were sealed by the IO with the seal of 'VK'. Seizure Memo was also prepared.
(g) Two samples of 5 grams each were taken out from the packet which was recovered from the hand of accused Anil @ Bhola and put in separate small transparent polythene pouches and converted into cloth pullandas with the help of white cloth and given mark D and E. The polythene containing the remaining heroin was also converted into cloth pullanda and was given mark F. All the Pullandas were sealed by the IO with the seal of 'VK'. The impression of the seal was then affixed on the Form FSL, which was filled up by the IO. Seizure Memo was also prepared. Seal after use was handed over to HC Raj Singh. Car and motor cycle was also seized by the IO.
(h) The Rukka was prepared and the same alongwith the seizure memos and sealed property was handed over to HC Ram Niwas, who FIR No. 8/11 PS Special Cell Page 5 of 57 State vs. Anil @ Bhola and ors. SC No. 24/11 thereafter went to PS Special Cell and produced the case property before SHO, PS Special Cell and handed over the rukka to Duty Officer for registration of FIR. SHO affixed his seal on all the pullandas and documents and also put the FIR number on the carbon copy of seizure memos, FSL forms and all the pullandas with his signature and deposited the same with MHCM. Further investigation was handed over to SI Satender Vasisth who came to the spot and he was narrated the facts of the case by SI Virender Tyagi and the accused persons and the documents prepared were handed over to him. SI Satender Vasisth then inspected the site and prepared the siteplan. After interrogation the accused persons were then arrested.
(i) Thereafter on 15/2/2011 in pursuance of disclosure statements of accused Hari Prasad and Anil @ Bhola, SI Satender Vasisth along with accused persons and raiding staff reached at the house of accused Anil @ Bhola i.e. B155, Raghuvir Nagar. After reaching there, SI Satender Vasisth requested 45 neighbours to join the proceedings but none agreed. Thereafter IO conducted the search of the house and during the search of a bed lying in the room situated at ground floor, one transparent polythene was found inside the bed. On opening the polythene, it was found containing powder which on testing with the field testing kit gave positive for heroin. The recovered substance was also weighed and its FIR No. 8/11 PS Special Cell Page 6 of 57 State vs. Anil @ Bhola and ors. SC No. 24/11 weight came out to be 250 grams. Two samples of 5 grams each were taken out from the polythene packet and put in separate small transparent polythene pouches and converted into cloth pullandas with the help of white cloth and given mark G and H. The polythene containing the remaining heroin was also converted into cloth pullanda and was given mark I. All the Pullandas were sealed by the IO with the seal of 'SV'.
(j) On further search of the room, near the bed in the room, one white colour can containing some liquid was also found. On inquiry, accused Anil @ Bhola revealed that the liquid in the abovesaid can was acetic anhydride which is used in processing of heroin and same was received by him from accused Hari Prasad. The abovesaid can was then weighed and its weight came out to be 10.180 kg. One sample of 250 grams was taken out from the abovesaid acetic anhydride and put into a small plastic can and was given mark J and the can recovered was given mark K. The mouth of the abovesaid can of the sample and can of case property were tied with the help of white cloth. Both the cans were sealed with the seal of SV. Form FSL was filled and seal of SV was also affixed on it. Seizure memo was prepared. During the further search of room some documents were also recovered and a separate seizure memo was prepared in this regard. Seal after use was handed over to SI Bhushan. FIR No. 8/11 PS Special Cell Page 7 of 57
State vs. Anil @ Bhola and ors. SC No. 24/11
(k) Thereafter on the same day, SI Satender Vasisth along with staff and accused Hari Prasad reached at the house of accused Hari Prasad i.e. H.No. 286/8, OMEX City, Sonepat, Haryana. After reaching there, SI Satender Vasisth requested 45 neighbours to join the proceedings but none agreed. Thereafter IO pressed the bell of the said house and one person opened the door of the house. On seeing the police party that person ran inside the room and picked a polythene and entered the bathroom and tried to bolt it. The raiding party pushed open the door of the bathroom and apprehended that person and snatched polythene from the hand of that person. The IO introduced himself and the members of the raiding team to the said person and apprised him about the disclosure statement made by other coaccused persons. On enquiry, the accused revealed his names as Om Prakash. Thereafter, he was then informed about his legal rights and was issued notice u/s 50 of NDPS Act and was made to understand that he has a legal right to be searched before a Magistrate or a Gazetted Officer. The accused refused to exercise the said rights and his refusal was written by SI Prahlad Singh on his request.
(l) Thereafter, SI Satender Vasisth then took the polythene packet from the hand of accused Om Prakash. On opening the polythene, it was found containing grey colour powder which on testing with the field testing kit gave positive for heroin. The recovered substance was also FIR No. 8/11 PS Special Cell Page 8 of 57 State vs. Anil @ Bhola and ors. SC No. 24/11 weighed and its weight came out to be 500 grams. Two samples of 5 grams each were taken out from the packet and put in separate small transparent polythene pouches and converted into cloth pullandas with the help of white cloth and given mark L and M. The polythene containing the remaining heroin was also converted into cloth pullanda and was given mark N. All the Pullandas were sealed by the IO with the seal of 'SV'. Seizure Memo was also prepared. Seal after use was handed over to SI Bhushan Azad.
(m) During further search of the house of Hari Prasad, one polythene containing 350 grams of a substance called barbitone, one polythene containing 400 grams of a substance called "power", 2 blue colour cans and 3 white colour cans of each weighing 10.2 kg. of substance called acetic anhydride were also recovered. On inquiry accused Hari Prasad had stated that all the aforementioned substances were used in preparation of heroin only. Samples from the aforementioned substances were drawn and converted into the separate cloth pullandas and given separate markings. The remaining substances were also separately sealed and seized. Accused Om Prakash was arrested. His personal search was conducted and his disclosure statement was recorded.
(n) Thereafter raiding team along with the accused persons went to PS Special Cell and produced the case property before SHO, PS Special FIR No. 8/11 PS Special Cell Page 9 of 57 State vs. Anil @ Bhola and ors. SC No. 24/11 Cell. SHO affixed his seal of RSS on all the pullandas and cans and deposited the same with MHCM. IO then also deposited the personal search articles of the accused Om Prakash in the Malkhana at PS Special Cell, Lodhi Colony. Special Reports u/s 57 of NDPS Act were prepared.
(o) During police custody the supplementary disclosure statement of accused persons were also recorded and thereafter on 23/2/2011, in pursuance of the supplementary disclosure statement given by accused Hari Prasad about one of his associates namely Nand Kishore raiding party along with accused Hari Prasad reached at H.No. A39, in front of Hanuman Mandir, Ganesh Puri, near Shiv Chowk, Shalimar Garden Extension, Sahibabad, UP where he pointed out the abovesaid house. Before initiating proceedings IO requested 4 neighbours to join the proceedings but none of them agreed to do so. The raiding party knocked the door of the house and the door was opened by one person who was having one polythene in his hand.
(p) The IO introduced himself and the members of the raiding team to the said person and apprised them about the information within his knowledge. On enquiry, the accused revealed his name as Nand Kishore Tiwari. He was then informed about his legal rights and was issued notices u/s 50 of NDPS Act and was made to understand that he has a legal right to be searched before a Magistrate or a Gazetted Officer. The FIR No. 8/11 PS Special Cell Page 10 of 57 State vs. Anil @ Bhola and ors. SC No. 24/11 accused refused to exercise the said rights and wrote his refusal in his own handwriting.
(q) Thereafter, SI Satender Vasisth conducted the search of the accused Nand Kishore Tiwari and the polythene which was being held by this accused was opened and on checking was found containing substance which on testing with the field testing kit gave positive for heroin. The said recovered substance was then weighed and its weight came out to be 300 grams. Two samples of 5 grams each were taken out from the packet and put in separate small transparent polythene pouches and converted into cloth pullandas with the help of white cloth and given mark Z1 and Z2. The polythene containing the remaining heroin was also converted into cloth pullanda and was given mark Z. All the Pullandas were sealed by the IO with the seal of 'RK'. Seizure Memo was also prepared.
(r) During search of the house of Nand Kishore, one katta containing a red coloured stone of weight 9 kg., one katta containing 24 kg. of paracetamol, one polythene containing 1.6 kg. of a substance called "power", one polythene containing 5 kg. of phenobarbital, one polythene containing 2 kg. of mixture of diazepam, paracetamol & caffeine, three polythenes containing 9 kg. of diazepam were also recovered. On inquiry accused Nand Kishore had stated that all the aforementioned substances FIR No. 8/11 PS Special Cell Page 11 of 57 State vs. Anil @ Bhola and ors. SC No. 24/11 were used in preparation of heroin only. Samples from the aforementioned substances were drawn and converted into the separate cloth pullandas and given separate markings. The remaining substances were also separately sealed and seized. Apart from the aforementioned substance one Optrat weighing machine, one Phillips grinder with two jars, one quick polysealer, six empty chemical boxes and some packing material were also recovered. All the aforementioned articles were seized and sealed with the seal of RK. Seizure memo was prepared. FSL was filled up. Accused Nand Kishore Tiwari was arrested. Thereafter raiding team along with the accused persons went to PS Special Cell and produced the case property before SHO, PS Special Cell. SHO affixed his seal of RSS on all the pullandas and cans and deposited the same with MHCM. IO then also deposited the personal search articles of the accused Nand Kishore Tiwari in the Malkhana at PS Special Cell, Lodhi Colony. Special Reports u/s 57 of NDPS Act were prepared.
(s) Thereafter the sample pullandas of this case were sent to FSL, Rohini through ASI Shamsher Singh and the present chargesheet was filed. Later on the report from FSL was also filed before the Court.
3. On the basis of material placed on record, charges were framed by the Ld. Predecessor of this court vide order dated 27.04.2012. Accused Anil @ Bhola and Hari Prasad were charged for the offence u/s 21(c) r/w FIR No. 8/11 PS Special Cell Page 12 of 57 State vs. Anil @ Bhola and ors. SC No. 24/11 section 29 NDPS Act and accused Anil @ Bhola was also separately charged for the offence u/s 21(c) r/w section 25A NDPS Act. Accused Hari Prasad and Om Prakash were charged for the offence u/s 21(c), 25A r/w section 29 NDPS Act and accused Nand Kishore was charged for the offence u/s 21(c) and 25A NDPS Act. All the accused persons pleaded not guilty to the said charges and claimed trial.
4. In order to prove its case against the accused, the prosecution has examined 18 witnesses in all.
5. PW4 SI Virender Tyagi, PW3 ASI Ram Niwas and PW8 ASI Raj Singh are members of the raiding team. They have deposed on similar lines and have reiterated more or less the assertions made in the charge sheet. As per their depositions, DD No. 10, in which the secret information was reduced has been exhibited as Ex.PW4/B. The notices issued to the accused persons Anil @ Bhola and Hari Prasad u/s 50 of the NDPS Act have been exhibited as Ex.PW3/A and Ex.PW3/C respectively and the refusal written by accused persons on the said notices have been exhibited as ExPW3/B and ExPW3/D respectively. The seizure memo prepared with respect to the recovery from both the accused persons have been exhibited as ExPW3/E and Ex.PW3/F. The tehrir prepared at the spot has been exhibited as Ex.PW4/C. The seizure memo prepared with respect to car and motor cycle have been exhibited as ExPW3/I and FIR No. 8/11 PS Special Cell Page 13 of 57 State vs. Anil @ Bhola and ors. SC No. 24/11 ExPW3/G respectively. Special Report u/s 57 of NDPS Act has been exhibited as ExPW4/J.
6. PW1 Duty officer SI Balkar Singh has interalia deposed that he was the duty officer on 14/2/2011 and that on this date he had received the rukka of the present case through HC Ram Niwas and had registered the FIR, Ex.PW1/A and had made his endorsement Ex.PW1/B thereon.
7. PW5 SI Gyan Chand, SO to ACP, Special Cell, NR. As per the record produced by this witness, on 14/2/2011 DD no. 10 regarding secret information, on 15/2/2011 reports u/s 57 NDPS Act regarding seizure prepared by SI Virender Tyagi, report u/s 57 NDPS Act regarding seizure of heroin from accused Om Prakash and arrest of accused Anil @ Bhola, Hari Prasad and Om Prakash prepared by SI Satender Vasisth, on 23/2/2011 report u/s 57 NDPS Act regarding recovery and arrest of accused Nand Kishore Tiwari prepared by SI Satender Vasisth were received in the office of ACP and that the said report was put before ACP. The reports and record produced by this witness have been duly exhibited during his testimony as Ex.PW5/A to Ex.PW5/J.
8. PW6 ASI M. Baxla Malkhana Incharge has inter alia deposed about the deposit of the case property/jamatalashi articles with the malkhana on various dates and has also proved the relevant entries thereof in the malkhana register.
FIR No. 8/11 PS Special Cell Page 14 of 57
State vs. Anil @ Bhola and ors. SC No. 24/11
9. PW7 ASI Shamsher Singh has deposed that on 03/03/2011 on the directions of IO, he had gone to PS Special Cell, Lodhi Colony and had taken nineteen pullandas along with six FSL forms from MHC(M) and had got the same deposited with FSL, Rohini, obtained receipt and handed over the same to MHC(M). The receipt of the FSL has been exhibited as ExPW6/J.
10.PW10 Inspector Satender Vasisth is the second investigating officer of the present case who has deposed that on reaching the spot he had met SI Virender Tyagi and he had produced before him the accused persons Hari Prasad and Anil @ Bhola and documents prepared by him. As per this witness he had thereafter prepared the site plan Ex.PW3/DA. Seizure memos of motor cycle and Maruti car have been exhibited as Ex.PW3/G and Ex.PW3/I. According to this witness he had arrested accused persons vide arrest memos, Ex.PW4/F and Ex.PW4/G and conducted personal search of accused persons vide Ex.PW4/H and Ex.PW4/I. Thereafter he had interrogated the accused persons and pursuant to disclosure made by accused Anil @ Bhola and Hari Prasad, he along with PW9 HC Dilawar and PW11 SI Bhushan Azad and other police officials had reached the house of accused Anil @ Bhola i.e. B155, Raghuvir Nagar from where recovery was effected. They have deposed on similar lines and have reiterated more or less the assertions made in the charge sheet. FIR No. 8/11 PS Special Cell Page 15 of 57
State vs. Anil @ Bhola and ors. SC No. 24/11 These witnesses have further deposed that he along with raiding party also went to the house of accused Hari Prasad i.e. House No. 286/8, Omex City, Sonipat where accused Om Prakash was apprehended and recovery was effected from accused Om Prakash and from house. The notice issued to the accused Om Prakash u/s 50 of the NDPS Act has been exhibited as Ex.PW9/B and the refusal written on behalf of the accused by SI Prahlad Singh has been exhibited as ExPW9/C. The seizure memos prepared have been exhibited as Ex.PW9/A, Ex.PW9/D, ExPW9/E. According to PW10 he had arrested accused Om Prakash vide arrest memo Ex.PW9/F and conducted personal search of accused vide Ex.PW4/H. According to PW10 he had recorded supplementary disclosure statements of accused Hari Prasad and pursuant to disclosure made by accused Hari Prasad, he along with PW2 ASI Bijender Singh and other police officials had reached the house of accused Nand Kishore Tiwari i.e. H.No. A108, Ganesh Puri, near Shiv Chowk, Shalimar Garden Extension, Sahibabad, Ghaziabd, U.P. from accused Nand Kishore Tiwari was apprehended and recovery was effected. The notice issued to the accused Nand Kishore Tiwari u/s 50 of the NDPS Act has been exhibited as Ex.PW2/A and the refusal written by accused has been exhibited as ExPW2/B. The seizure memos prepared have been exhibited as Ex.PW9/A. According to PW10 he had arrested accused FIR No. 8/11 PS Special Cell Page 16 of 57 State vs. Anil @ Bhola and ors. SC No. 24/11 Nand Kishore Tiwari vide arrest memo Ex.PW2/E and conducted personal search of accused vide Ex.PW2/F. PW10 has also inter alia proved the reports prepared by him u/s 57 NDPS Act.
11.PW12 Sh. Sarvesh Kumar has deposed that his mother Rajwati Devi is the owner of House bearing no. A39, Ganeshpuri Shalimar Garden and on the request of one Ms. Meena Devi, he had let out a room on rent to Nand Kishore on 4/2/2011 at a month rent of Rs.1500/ on behalf of her mother. This witness has identified the accused in the court and proved copy of voter I card of accused as ExPW12/A which was given to him by the accused at the time of taking the premises on rent and HP gas connection of house house as ExPW12/B.
12.PW13 Sh. Inspector Rajender Sehrawat has interalia deposed that on 14/2/2011, he was posted as SHO, PS Special Cell and on that day at about 06:00 PM, HC Ram Niwas had produced before him, 6 pullandas, one FSL Form and two carbon copies of seizure memo. As per the deposition of this witness, he had put his initials and his seal 'RSS' on all the pullandas and the FSL forms and then got the said property deposited in the Malkhana. He has further deposed that on 15/2/2011 at about 03:45 PM SI Satender Vasisth had again produced before him, 24 sealed pullandas, three FSL Forms and three carbon copies of seizure memos. As per the deposition of this witness, he had put his initials and his seal FIR No. 8/11 PS Special Cell Page 17 of 57 State vs. Anil @ Bhola and ors. SC No. 24/11 'RSS' on both the pullandas and the FSL form and had then got the said property deposited in the Malkhana. According to this witness, on 23/2/2011 at about 07:00 PM SI Satender Vasisth had produced before him, 21 sealed pullandas, two FSL Forms and two carbon copies of seizure memos. As per the deposition of this witness, he had put his initials and his seal 'RSS' on both the pullandas and the FSL form and had then got the said property deposited in the Malkhana. The DD entries made by this witness in register no. 19 have been duly exhibited during his testimony as Ex.PW13/A to Ex.PW13/C.
13.PW14 Ms. Meena Devi has deposed that in the year 2011 she was residing at B34, Ganeshpuri Ghaziabad, UP and was running a kirana store along with her son. This witness has further deposed that Nand Kishore used to come at her shop and had made a request to help him search rented premises for him. According to this witness she had introduced Nand Kishore to Sarvesh Sharma who rented out his premises to Nand Kishore.
14.PW15 Sh. Murlidhar Tayal has deposed that he had purchased car no. UP16B 5987 from Honda Siel Ltd. and in the year 2004 he had sold the vehicle to Neelam Verma and Hari Prasad Verma for approximately Rs. 1,20,000/. According to this witness he had handed over RC, sale letter and other relevant documents of the vehicle and other documents related FIR No. 8/11 PS Special Cell Page 18 of 57 State vs. Anil @ Bhola and ors. SC No. 24/11 to the Honda Siel Ltd. to Hari Prasad and issued delivery receipt in the name of Neelam Kumar who is brother of Hari Prasad. Delivery receipt has been exhibited as ExPW15/A.
15.PW16 Sh. Ajay Malhotra has deposed that in the year 2011 he had handed over a copy of registry to the police regarding ownership of villa no. 286, Omex City, Sonipat. According to this witness as per record the abovesaid house is in the name of Smt. Usha w/o Hari Prasad r/o DB 695 near Bada Jain Mandir, Halwai Hatta, Sonipat, Haryana. The registered sale deed has been exhibited as ExPW16/A.
16.PW17 Dr. Lingraj Sahoo, Senior Scientific Officer, FSL, Rohini has proved the report prepared by him with respect to the analysis conducted by him of the samples sent to FSL. The said report has been exhibited as Ex. PW17/G and the six forwarding letters (FSL forms) have been exhibited as ExPW17/A to ExPW17/F.
17. PW18 Inspector Attar Singh has inter alia deposed that on 14/2/2011 at about 11:45 AM SI Virender Tyagi along with secret informer had come to his office and apprised him regarding the secret information. He has further deposed that after satisfying himself regarding the information he conveyed the information to Sh. Subhash Tandon, ACP and on his direction he had directed SI Virender Tyagi to proceed as per law. According to this witness he had forwarded various reports u/s 57 of FIR No. 8/11 PS Special Cell Page 19 of 57 State vs. Anil @ Bhola and ors. SC No. 24/11 the NDPS Act prepared by SI Virender Tyagi and SI Satender Vasisth to ACP.
18.The aforesaid incriminating evidence was put to the accused persons and their statements were recorded u/s 313 Cr.PC. All the accused persons in their statements u/s 313 Cr.PC have taken a defence that they have been falsely implicated in this case and that no contraband had been recovered from their possession or at their instance at any point of time. In particular accused Hari Prasad Verma has stated that he was arrested by the police on 13.02.2011 itself and on that day, he received a telephonic call by his wife intimating that the vehicle of their son who was student of law at Amity had broken down and his wife asked him to pick him up from there. In pursuance of the same, he left for Delhi from Sonepat in his Maruti car bearing no. UP 16B 5987 alongwith one family friend namely Ms. Dimple whom he knew from the last about 2022 years as she was his tenant and she had also requested him to take along as she wanted to meet her sister on Kingsway Camp, Delhi. At about 09.00 PM when they reached Singhu Border, Karnal Bypass, they noticed that barricades had been put up at the said road and that vehicles were going from slow and when the turn of their car came to cross the said barricades, 67 persons surrounded their car and forced them to get down from the car and they were made to sit on the rear seat and the said FIR No. 8/11 PS Special Cell Page 20 of 57 State vs. Anil @ Bhola and ors. SC No. 24/11 persons drove their car about 100200 mtr away from the said place where a Qualis vehicle was already parked and then they were shifted to the said Qualis vehicle where one old man was already sitting name of the said old man was revealed as Om Prakash and the police officials who had apprehended them revealed their names as Bijender and Hawa Singh. From Singhu Border, they all were taken to Meera Bagh, Keshav Pur via Mukarba Chowk, Pitampura, Madhuban Chowk and Piragarhi. On the way one the directions of the police officials, he (accused Hari Prasad) called coaccused Anil @ Bhola from one of his mobile no. 9729945950 and asked him to come with an amount of Rs.50,000/ at Meerabagh, Keshavpur bus depot at about 10.15 PM and he had made almost seven calls to him between 0909.30 PM. After they reached Meerabagh, Keshavpur, he again made a call to Anil @ Bhola and after the said call, Anil came to the spot within 1015 minutes who had come on a bike and he was overpowered by the police officials. At Keshavpur bus depot, 67 more persons had also joined the police party. Thereafter he himself, Ms. Dimple and Om Prakash were taken away from the said spot in the said Qualis vehicle to a building in sector 6, Rohini and it was told that the said building was the office of Special Cell. There five mobile phones out of six mobile phones which he was carrying were taken into possession by the police officials and he managed to hide one FIR No. 8/11 PS Special Cell Page 21 of 57 State vs. Anil @ Bhola and ors. SC No. 24/11 mobile phone bearing no. 9729945950 and he was in constant touch with his son Vikas through SMS and phone calls during the intervening night of 13.02.2011 and 14.02.2011 and he was able to inform his son about his forcible apprehension. On the morning of 14.02.2011 police official Satender Vashisht noted that he still had a mobile phone in his possession and he then took it away. The police officials started demanding an amount of Rs.10 Lac from him. At about 10.3011.00 AM the police officials took him and Ms. Dimple in a Maruti Eeco to Kundli, Haryana where they had breakfast at Rasoi dhaba Kundli, Haryana. At that point of time, police officials Bijender received a phone call and after attending the same he informed Satender Vashisht that Inspector Attar Singh has called up and had asked them to bring all of us to Montfort School, Ashok Vihar and hence they were then brought to Montfort School where few other police personnels were also present and after sitting there for about 30 minutes, they were taken to Sector6, Rohini at the office of Special Cell and from there they were again taken to Omax City, Sonepat where at the entry gate of G.T. Road, Ms. Dimple was let off and he was asked to make a call to his son Vikas but his son told that he could not arrange the money as per their demand and hence he was taken back to Rohini. On 15.02.2011, his dossier were prepared and he was taken to Ambedkar Hospital for his medical examination. He was FIR No. 8/11 PS Special Cell Page 22 of 57 State vs. Anil @ Bhola and ors. SC No. 24/11 also produced before the court where five day PC remand was given. He was not taken anywhere and he was kept in the office of Special Cell. During the period 13.02.2011 to 23.02.2011, he was forced to sign many blank papers and printed papers.
19.Accused Om Prakash in his statement u/s 313 Cr.PC has also taken the same stand that he has been falsely implicated in this case. He has stated that he is a resident of Tehsil Bhiwani, Mandi, Rajasthan and is a farmer by profession and he had been coming to Delhi to take medicines for his health problems from a vaid in Sagarpur, New Delhi as the Ayurvedic medicines prescribed by the said vaid were found beneficial for his ailment. On 13.02.2011 he had come to Delhi through train at about 07.00 AM and when he came outside Nizamuddin railway station, four persons in civil clothes surrounded him and that they told him that they were police officials and they forcibly brought him to PS Rohini where he was kept for the entire day. At about 05.00 PM, 67 police officials took him in a vehicle to Singhu Border where one person whose name was later on revealed to him as Hari Prasad and one lady were apprehended by the police officials and they were made to sit in the same Qualis vehicle in which he was sitting. The Police took all of them to Keshavpur Depot and on the way the police officials told Hari Prasad to make phone call to a person with whom he had some money transactions FIR No. 8/11 PS Special Cell Page 23 of 57 State vs. Anil @ Bhola and ors. SC No. 24/11 and at Keshavpur Bus depot, Anil @ Bhola also came to the spot and they all were brought back to PS Rohini. It was further stated by him that on 14.02.2011, Ms. Dimple and Hari Prasad were taken away by the police officials and in the evening only Hari Prasad was brought back. He further stated that on 15.02.2011, he was forcibly made to sign some blank papers and certain semi written documents and the police officials threatened him that in case he did not sign the said papers, they would falsely implicate him and his 17 years old son in a NDPS case.
20.Accused Anil @ Bhola in his statement u/s 313 Cr.PC has also corroborated the statement of accused Hari Prasad and Om Prakash and he stated that he had taken a loan of Rs.50,000/ from Hari Prasad and he was not able to arrange to repay the said amount to Hari Prasad and he was frequently calling him time and again. He further stated that on 13.02.2011 Hari Prasad called him continuously from 08.00 PM to 10.30 PM and on his instance, he (Anil @ Bhola) reached at Keshavpur Depot, Khyala at about 10.30 PM on his motorcycle and there he was apprehended by 1012 persons who he later came to know were the police officials from Special Cell. He further stated that he saw Hari Prasad also in another vehicle alongwith some other persons and he was slapped by the police officials and was made to speak to his wife asking her to arrange an amount of Rs.2 Lacs and since his wife could not FIR No. 8/11 PS Special Cell Page 24 of 57 State vs. Anil @ Bhola and ors. SC No. 24/11 arrange the said amount, he was kept in the office of Special Cell and he was made to sign many blank papers and was also made to write some lines.
21.Accused Nand Kishore Tiwari in his statement u/s 313 Cr.PC has stated that he was also not apprehended by the police officials in the manner deposed by them but infact he was picked up by the police officials from his tenanted residential premises at 108, Ganesh Puri, Shalimar Garden Extension, Sahibabad, Ghaziabad, UP. He further stated that after his apprehension, he was taken by the police to the office of Special Cell where he was made to sign many blank papers and some partly written documents.
22.In support of their defence, these accused persons have produced 13 defence witnesses.
23.DW1 Ms. Roshni (wife of accused Anil @ Bhola) has inter alia deposed that on 13/2/2011at about 9:15 PM when she had called her husband to take dinner, he told her that he is going to meet his friend one Hari as he is receiving continuous calls from him. She told him to first have dinner and since his health was not good he should avoid going out. According to this witness, her husband however told her that he would come back in a short while. He however did not come till 10:30 PM. This witness has further deposed that she made various calls during the period FIR No. 8/11 PS Special Cell Page 25 of 57 State vs. Anil @ Bhola and ors. SC No. 24/11 10:3011:00 PM on his mobile bearing no. 8802149589 using her own mobile bearing no. 9999649652 but the phone was engaged. Finally she was able to speak to him and her husband told her that he has some work in the Uttam Nagar area and that he will be late and that she and the children should eat food and go to sleep. This witness has further deposed that at about 01:00 AM in the night she again received a call from him and this time he told her that he had been apprehended by the police officials of PS Sector 6 Rohini and that they are demanding Rs. 2 lakhs from him for his release and also told her to arrange for the said sum and come to the PS Sector 6 Rohini in morning. According to this witness she tried to arrange the said amount by asking for the same from her relatives but when she could not, she went to the PS Sector 6 Rohini in the afternoon along with her father in law where she met 23 police officials there and pleaded with them to release her husband but they did not agree to release him without the money. According to this witness on the date of the incident her husband was using two mobiles but she does not remember the other mobile number being used by him except that its last digits were 9923. The said witness has been cross examined by the Ld. APP for the State.
24.DW2 Sh. Chandrashekher, Nodal Officer, Bharti Airtel Ltd. has proved the call detail records, Caller ID chart of the mobile numbers FIR No. 8/11 PS Special Cell Page 26 of 57 State vs. Anil @ Bhola and ors. SC No. 24/11 9958993936, 9958993970, 9958993985, 9896263532, 9729945103, 9896812899, 9729945950, 9928202041 and 9660393185. The call detail records and cell ID charts have been exhibited as ExDW2/C and ExDW2/D colly.
25.DW3 Sh. Sunil Kumar, Nodal Officer, MTNL has proved the call detail records, Caller ID chart of the mobile numbers 9868392442, 9868392443 and 9868392452. The call detail records, cell ID charts and certificate u/s 65 B Evidence Act have been exhibited as ExDW3/A to ExDW3/F.
26.DW4 Durga Lal has deposed that on 12/2/2011 at about 7:00 PM Sh. Om Praksh told him to drop him at the railway station from the village as there is no communication and he told him that he had to go to Delhi to get some diabetic medicine as he was a diabetic patient. According to this witness he dropped Om Prakash at the railway station Bhiwani Mandi on 12/2/2011 on his motor cycle and helped him board Inter City Express which was to go to Delhi at about 9:15 PM
27.DW5 Sh. Naresh Chander MRO, Baba Saheb Ambedkar Hospital has deposed that their department had received one application moved by Hari Prasad under RTI Act and in response to the said application/direction he had submitted the MLCs in the name of Anil, Om Prakash and Hari Prasad to the PIO vide letter no F7(22)/200304/BSAH/MRD/Pt. File/16854 dated 17/10/2011. The FIR No. 8/11 PS Special Cell Page 27 of 57 State vs. Anil @ Bhola and ors. SC No. 24/11 MLCs have been exhibited as ExDW5/A and ExDW5/B colly.
28.DW6 Dr. A.K. Koan, Additional DCP has proved the RTI applications ExDW6/A to ExDW6/C and the reply given by him in the capacity of Public Information Officer in response to these RTI applications as ExDW6/D to ExDW6/F.
29.DW7 Sh. Umesh Kumar, Additional DCP has proved the RTI application ExDW7/A and the reply given by him in the capacity of Public Information Officer in response to the RTI application as ExDW7/B.
30.DW8 Ms. Dimple has inter alia deposed before the court that in the last week of December, 20101st week of January, 2011, she had shifted to 286/8, Omaxe City, Sonepat from Delhi and at that time, she was using two mobile phones No. 9999512857 and 9671215056. According to this witness accused Hari is known to her for the last 2022 years and his family is well known to her. This witness has further deposed that on 13.02.11, Hari had told her that he was going to Delhi to pick up his son. She told him to take her along as she also had to go to Delhi to meet her sister who was staying at Kingsway Camp. This witness has further deposed that at about 88:30pm, accused Hari picked her from my house at Omex City. While going towards Delhi, when they reached Singhu Border at about 9pm, at that time, the traffic was moving at very slow FIR No. 8/11 PS Special Cell Page 28 of 57 State vs. Anil @ Bhola and ors. SC No. 24/11 pace and there were barricades put by the police. At that moment, 67 unknown persons stopped their car and forcibly took us out of the car and made us to sit on the rear seat of the said car. 23 persons also sat in the said car. One of them drove the car for distance of about 100150 meters and then stopped the car. Thereafter, the said persons forced them to sit in a Qualis Car on the back seat, which was stationed at that spot. One old person, whose name she came to know later on as Om Parkash, was already sitting on the rear seat of the said car. According to this witness when Hari asked about the reason for making them sit in the car, the said persons asked to sit quietly and two of them disclosed their names as Hawa Singh and Bijender and told that they were police officials. They also asked their names and accordingly, they disclosed our names. This witness has further deposed that then these two persons asked them to call Anil Bhola, with whom Hari had money transactions, at Keshavpur Depot. They made them call to Anil Bhola. When they reached Keshavpur Depot, few other persons were already present there, who joined them. This witness has further stated that thereafter, one person came there on motorcycle, whose name she lateron came to know as Anil. His motorcycle was hit and he fell down and he was overpowered by the said persons. Thereafter, 34 persons took her, Hari and Om Parkash in Qualis car to a building in Sector 6, Rohini, which she lateron FIR No. 8/11 PS Special Cell Page 29 of 57 State vs. Anil @ Bhola and ors. SC No. 24/11 came to know as office of Special Cell. There, she also came to know that above said persons are police persons. According to this witness her handbag was left in the car which contained her mobile phone, ICard etc. Inside the Special Cell office, mobile phones of Hari were also taken except one mobile phone which was hidden by him. This witness has further deposed that the whole night all three of them were made to stay in a room in the said office. At night, Hari was able to send SMS and made few calls to his son Vikas and informed him that these police officials have illegally detained us at Sector 6, Special Cell. According to this witness in the early hours of 14.02.2011, one police official found that mobile in Hari's possession and took the said mobile. This witness has further deposed that on 14.02.2011 at about 10:3011am, 3 police officials namely Bijender, Satinder Vashist and Rakesh Kumar alongwith one Driver took her and Hari in the Echo Car on the pretext of dropping us to their house. She asked for her handbag which also had her house keys, on which they returned her two mobile phones and out of bunch of keys, one key of her house was returned. While on the way, these police officers demanded money from them and on fulfillment of demand, they assured to release them. Thereafter, the said police officials took them to one Rasoi Dhaba at Kundali, Haryana, which is situated immediately after the Singhu Border. They had taken breakfast there. While they were FIR No. 8/11 PS Special Cell Page 30 of 57 State vs. Anil @ Bhola and ors. SC No. 24/11 having breakfast, Bijender received a telephonic call, after which he told Satinder Vashist that Attar Singh called them back and asked to bring them at Mont Fort School, Ashok Vihar. Thereafter, they took them to Mont Fort School. Some 67 persons were already present there. They all stayed there for about 3040 minutes. Satinder Vashist, Rakesh Kumar gave their mobile phones to the said persons and asked them to attend and make calls from their mobile till evening, so as to create location at Mont Fort School. From there, Satinder Vashist, Rakesh Kumar, Bijender brought them to Special Cell at Sector 6 Rohini where they were made to stay outside and out of the said police official, one police official went inside the building and came back after 1015 minutes and thereafter, they took them back to Omex City, Sonepat via Singhu Border. While on the way, Hari kept calling his son Vikas to arrange for money so as to pay the officials. On reaching the main gate of Omex City, she was let off. While getting down, she asked for her handbag and about releasing of Hari on which Bijender gave his mobile number and asked her to contact him on this said number regarding release of Hari and her handbag. They further threaten her not to make any complaint otherwise she alongwith Hari would be implicated in a false case. Thereafter, she contacted Bijender on the number given by him regarding her bag and release of Hari. Thereafter, Hari was not released, however, FIR No. 8/11 PS Special Cell Page 31 of 57 State vs. Anil @ Bhola and ors. SC No. 24/11 after 34 days, her bag was returned. The said witness has been duly cross examined by the Ld. APP for the State.
31.DW9 Sh. Shishir Malhotra, Nodal Officer, Aircel Ltd. Delhi has proved the call detail records, Caller ID chart of the mobile numbers 7503370650, 7503370800, 7503370087, 7503370551, 7503370006, 7503370666, 7503370564, 7503370652, 7503370600, 7503370566, 7503370569 and 7503370653. The call detail records and cell ID charts have been exhibited as ExDW9/A to ExDW9/C.
32.DW10 Israr Babu, Nodal Officer, Vodafone Mobile Service Ltd. has proved the call detail records, Caller ID chart of the mobile numbers 9813301510, 9671519788, 8930000943, 9671215056, 9811689212, 9811713311, 9811470989, 9999886233, 9999649652, 8447019923, 9999512857, 9999394389 and 9671219770. The call detail records and cell ID charts have been exhibited as ExDW10/A to ExDW10/D.
33.DW11 Sh. Amarnath Singh, Nodal Officer Idea Cellular Ltd. has proved the call detail records, Caller ID chart of the mobile numbers 9891287725 and 9911370391. The call detail records and cell ID charts have been exhibited as ExDW11/A to ExDW11/C.
34.DW12 Sh. Rajeev Ranjan, Nodal Officer Tata Tele Services has proved the call detail records, Caller ID chart of the mobile numbers 9212751773 and 921205177. The call detail records, cell ID charts and FIR No. 8/11 PS Special Cell Page 32 of 57 State vs. Anil @ Bhola and ors. SC No. 24/11 certificate u/s 65 Indian Evidence Act have been exhibited as ExDW12/A to ExDW12/F.
35.DW13 Sh. Vikas Verma, has inter alia deposed that in the year 2011 he was using two mobile phones bearing no. 9999886233 and 9896812899. According to this witness on 13/2/2011 he was at his office situated at Rohini, Sector 8 where his father namely Hari Prasad was to come and pick him up. But he did not come. This witness has further deposed that at about 11:00 PM he received a call from mobile number 9729945950 on his mobile number 9999886233 to the effect that he (hari prasad) has been illegally confined by certain police officials, who are demanding money from him for his release so kindly arrange for the same. According to this witness he was in constant touch with his father over his mobile phone 9729945950 from his mobile phone 9999886233 during the intervening night of 1314 February, 2011 through calls and SMS. This witness has further deposed that on 14/2/2011 at about 11:00 AM his father called him up on his mobile phone number 9896812899 from his mobile number 9671519788 and informed him that police officials are bringing him to Sonipat to take money and told him that if he is able to arrange for the same they would release him. Till evening his father was in constant touch with him over phone. However, he could not arrange money. Around 5:00 PM his father along with few other FIR No. 8/11 PS Special Cell Page 33 of 57 State vs. Anil @ Bhola and ors. SC No. 24/11 police officials, names of whom he later on came to know as Satender Vasisth, Bijender, Rakesh and one driver, came to Housing Board Sonipat. According to this witness he was already present there as asked by his father. As he was not able to arrange the money the abovesaid police officials asked him to arrange the same and not to inform anyone about this otherwise they would not release his father and would implicate him in a false case. Thereafter they all left. This witness has further deposed that as he could not arrange for the money his father has been falsely implicated in the present case.
36.After the conclusion of the defence evidence, Ld. Defence counsels Sh. Alok Bhachawat (for accused Hari Prasad and Nand Kishore), Sh. S.S. Das (for accused Om Prakash) and Sh. K.J.S. Mann (for accused Anil @ Bhola) and Ld. APP for the State advanced final arguments and written submissions have also been filed on their behalf. The main contention taken on behalf of the accused persons is that they were not arrested in the manner put forth by the investigating agency and the entire case of the prosecution with regard to their date, time and mode of arrest is concocted and no contraband was ever recovered from them. As stated above, it is the case of accused Hari Prasad, Om Prakash and Anil @ Bhola that they were apprehended by the police on 13.02.2011 itself and not on 14.02.2011. As narrated above, as per the case of the accused Hari FIR No. 8/11 PS Special Cell Page 34 of 57 State vs. Anil @ Bhola and ors. SC No. 24/11 Prasad on 13.02.2011 while he was coming to Delhi in the evening with his tenant namely Ms. Dimple, certain police officials forcibly apprehended them from Singhu Border, Karnal Bypass and they were made to sit in a vehicle in which accused Om Prakash was already sitting and they were taken by the police at Meerabagh, Keshavpur depot and on the way the police made him to speak to Anil and the said Anil also came to the spot and they all were brought to the office of Special Cell. As per his case, although the police had seized his mobile phone but he was able to hide one mobile phone bearing no. 9999886233 and he was in constant touch with his son through SMS and phone call throughout the intervening night of 13.02.2011 and 14.02.2011. At Singhu Border, Karnal Bypass when accused Hari Prasad and Dimple were made to sit in a vehicle alongwith coaccused Om Prakash, the name of police officials present in the vehicle were revealed as Bijender and Hawa Singh.
37.It is relevant here to state that before the prosecution commenced its evidence in this case, accused Hari Prasad moved an application u/s 91 Cr.PC praying that the call detail records and the SMS details of 42 mobile phones may be directed to be produced before this court. List of the said 42 mobile phones contained 25 mobile numbers of the police officials and 17 were of either accused Hari Prasad or his son or the remaining accused persons. It was argued by Sh. Alok Bhachawat, Ld. FIR No. 8/11 PS Special Cell Page 35 of 57 State vs. Anil @ Bhola and ors. SC No. 24/11 Counsel that the defence of accused Hari Prasad is that accused Hari was not arrested in the manner portrayed by the investigating agency and that he was picked up by the police officials on 13.02.2011 at about 0708.00 PM from Singhu Border and on the way coaccused Anil @ Bhola was also arrested by the police. The IO of the case verified that the numbers of the police officials given in the list were correct and hence after considering the entire circumstances, my Ld. Predecessor court vide order dated 08.02.2012 directed the concerned mobile companies/service providers to preserve the Cell ID tower chart/details of the said mobile phones of police officials and the accused.
38.The call detail record of the mobile number 7503370652 belonging to HC Bijender has been proved by DW9 Shishir Malhotra, Nodal Officer, Aircel Ltd. as Ex.DW9/B (colly). According to the Cell ID Chart and the call detail records he was present on 13.02.2011 at village Singhu and in the adjoining area of Village Nanglipoona from 05.12 AM till about 09.40 PM and then at Bhalswa at 09.56 PM, at Pitampura at 10.03 PM, at Meerabagh from 10.08 to 10.41 PM and then at Uttam Nagar at 11.23 PM and thereafter at Matiyala till 11.55 PM.
39.The call detail record of the mobile number 7503370569 belonging to HC Hawa Singh has been proved by DW9 Shishir Malhotra, Nodal Officer, Aircel Ltd. as Ex.DW9/B (colly). According to the Cell ID Chart FIR No. 8/11 PS Special Cell Page 36 of 57 State vs. Anil @ Bhola and ors. SC No. 24/11 and the call detail records he was present on 13.02.2011 at village Singhu and in the adjoining area of Village Nanglipoona from 10.38 AM till 09.45 PM and then at Mirabagh at 10.10 PM.
40.The call detail record of the mobile number 9729945950 belonging to accused Hari Prasad has been proved by DW2 Chandra Shekhar, Nodal Officer, Bharti Airtel Ltd, New Delhi as Ex.DW2/C (colly). As per the record, the holder of this mobile phone was at Nanglipoona at 09.39 PM and then at Prashant Vihar at 09.55 PM, at Sunder Vihar at 10.25 PM, at Santgarh at 10.33 PM, at Keshavpur at 10.43 PM to 10.46 PM and then at Santgarh from 10.49 to 1.51 PM and then at Khyala at 10.54 PM and then at Sector 6, Rohini from 11.38 PM till 05.20 in the morning of 14.02.2011.
41.Further the call detail records of PW2 HC Bijender having no. 7503370652 (Aircel), DW3 ASI Ram Niwas having no. 7503370564, ASI Raj Singh having no. 7503370660 (Aircel), PW10 SI Satender Vashisht having no. 7503370800 (Aircel) also show their presence in the area of Meerabagh till late evening on 13.02.2015.
42.It is relevant here to state that before the call detail records of the accused Hari Prasad and the police officials came on record, the defence of accused Hari Prasad that he has been falsely apprehended by the police on 13.02.2011 from village Singhu had already come on record and in FIR No. 8/11 PS Special Cell Page 37 of 57 State vs. Anil @ Bhola and ors. SC No. 24/11 this background, the call detail records of accused Hari Prasad and HC Bijender and HC Hawa Singh become relevant and when the same is read alongwith the Cell ID Chart of the said phones, the presence of all of them at village Singhu and in the adjoining area of Village Nanglipoona on 13.02.2011 at about 0910.00 PM raises a suspicion and gives credence to the defence propounded by accused Hari Prasad that he was apprehended by police in the evening of 13.02.2011 and not on 14.02.2011 as portrayed by the investigating agency.
43.From the call detail records of the police officials, as stated above, it is proved that HC Bijender and HC Hawa Singh were in the area of village Singhu border and in the adjoining area on 13.02.2011 in the evening hours and thereafter they were at Meerabagh at about 1011.00 PM where many other police officials, whose call detail records have also been discussed above were already present. If accused Hari Prasad was not apprehended on 13.02.2011 in the manner as claimed by him, the question arises how on earth he came to know about the presence of police officials on 13.02.2011 at village Singhu/Nanglipoona and later at Meerabagh. In view of this and also in view of the discussion made in the later part of this judgment, it is apparent that the accused persons were not arrested in the manner and on the date on which the investigating agency wants this court to believe.
FIR No. 8/11 PS Special Cell Page 38 of 57
State vs. Anil @ Bhola and ors. SC No. 24/11
44.The defence taken by this accused get further strengthened when we analyse the call detail records/cell ID chart of the mobile phones of the raiding party members who had gone to the spot allegedly on 14.02.2011. As per the case of the prosecution, on 14.02.2011 after receiving the secret information at 11.30 AM, the members of the raiding party consisting of the police officials left the office of Special Cell at 12.30 PM and reached the spot i.e. Montfort School, Ashok Vihar, Delhi at about 01.00 PM where accused Anil came at about 01.30 PM and accused Hari came at about 01.40 PM and the entire proceedings at the spot continued till 07.30 PM and during this period no member of the raiding party left the spot except ASI Ram Niwas (PW3) who took the rukka to the office of Special Cell for getting the FIR registered and for depositing the contraband/parcels there. Now when we analyse the call detail records/ cell ID chart of some of the raiding party members, its entire proceedings on 14.02.2011 on the spot becomes highly doubtful:
(i) The call detail records/cell ID Chart of the mobile phone of HC Ram Niwas having no. 7503370564 (Aircel) shows that on 14.2.2011 he was present in the area of Ashok Vihar from 11.05 AM onwards and hence his presence at the office of Special Cell at Sector 6, Rohini at the time of receiving secret information, at the time of recording DD No.10, at the time of preparation of raiding party in the office of Special Cell FIR No. 8/11 PS Special Cell Page 39 of 57 State vs. Anil @ Bhola and ors. SC No. 24/11 become highly doubtful.
(ii) The call detail records/cell ID Chart of the mobile phones of HC Raj Singh having no. 7503370660 (Aircel) does not show his presence in or around Ashok Vihar on 14.02.2011. The said record shows that on 14.02.2011 he was at Rithala, Sector 6 Rohini, Krishna Park Extension and Rajender Park throughout the day from 11.42 AM to 08.43 PM and hence his presence at the spot at Ashok Vihar is also highly doubtful.
(iii) As per the case of the investigating agency, after the conclusion of the proceedings at the spot, the raiding party left the spot at about 07.30 PM and had reached PS Lodhi Colony at 08.15 PM where they deposited the jamatalashi and the vehicle of the accused in malkhana. In the cross examination, SI Satender Vashisht admitted that on that day he alongwith the raiding party members had directly gone to Lodhi Colony from the spot but this is belied by his mobile phone record. His call detail records/cell ID Chart of mobile phone no. 7503370800 (Aircel) show his location at Sector 3, Rohini and Rithala between 07.41 to 08.02 PM. He has admitted in his crossexamination that sector 3, Rohini and Rithala do not come on the way between Ashok Vihar to Lodhi Colony and hence it is highly doubtful that the proceedings were conducted on the spot on 14.02.2011 as claimed by the prosecution.
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State vs. Anil @ Bhola and ors. SC No. 24/11 At this stage, it is relevant here to discuss the call detail records/cell ID Chart of accused Hari Prasad with respect to the events on 14.02.2011. As per the case of the prosecution itself, four mobile phones of accused Hari were seized by the police on 14.02.2011 including mobile phone no. 9671519788. The call detail records/cell ID Chart of this phone has also come on record which shows its location at VPO Rasoi, Sonepat from 12.19 PM to 12.48 PM and then at Delhi Circle from 02.36 PM to 03.54 PM and then again at Sector 15, Sonepat till 05.50 PM and then again at Delhi from 07.02 PM till 07.17 PM. If this accused was arrested at the spot at Montfort School then the call detail records/cell ID Chart of his phone should have shown his location to be at Ashok Vihar but as discussed above, it is controverted by the cell record which has been produced in the court. The said record rather strengthens the defence of the accused who had stated that he was arrested by the police on 13.02.2011 itself and on 14.02.2011, he was taken to Sonepat where they had lunch at Rasoi Dhaba and he was made to speak with his son as the police officials were demanding money and subsequently he was brought to Delhi after the police officials received the intimation from Inspector Attar Singh to bring the accused back to Delhi at Ashok Vihar so that the location of Delhi is created and again he was taken to Sonepat in the evening and then brought back to Delhi late evening. No explanation has FIR No. 8/11 PS Special Cell Page 41 of 57 State vs. Anil @ Bhola and ors. SC No. 24/11 been furnished by the prosecution in regard to these above discussed material points.
45.It is next argued by Ld. Counsels for the defence that in the present case, there is complete non compliance of section 42 NDPS Act which goes to the root of the matter. It is stated that the prosecution witnesses have themselves admitted in the crossexamination that the investigating agency was having information about the accused much prior to 14.02.2011 and still it was not recorded in writing and hence the case of the prosecution must fall on this ground alone. It is controverted by Ld. APP for the State. In my view, it would be relevant if the testimony of some of the witnesses is discussed in this regard:
(i) PW3 HC Ram Niwas has admitted in his crossexamination that since many days prior to the date of arrest of the accused persons, the calls were being intercepted. He further stated in the crossexamination that during the evening of 13.02.2011, there was a briefing in the office of Special Cell that there shall be a case pertaining to the present case on 14.02.2011 and he should report to the office on the next day morning.
(ii) PW8 HC Raj Singh admitted in his crossexamination that the mobile phone of accused Anil and Hari were on surveillance prior to 13.02.2011 and secret informer had also been deployed for keeping watch on their activities. He further admitted in his crossexamination FIR No. 8/11 PS Special Cell Page 42 of 57 State vs. Anil @ Bhola and ors. SC No. 24/11 that on 13.02.2011 few police personnels had gone to Kundli side/Singhu border (DelhiHaryana Border) but he does not recall their names and Inspector Attar Singh had told him that accused Hari will be coming from Sonepat and will enter Delhi through this border. He further admitted that the said team had gone to Meerabagh area in the evening of 13.02.2015 between 0811.00 PM.
(iii) PW9 HC Dilawar admitted in his crossexamination that the phones of the accused persons were on interception and he had heard telephonic conversations between the accused persons sometime in January, 2011 and Inspector Attar Singh had directed him to hear the intercepted calls. He further admitted that on 13.02.2011, he went to look for accused persons Anil and Hari at Meerabagh in the morning at around 08.00 AM and he was accompanied by Inspector Attar Singh, HC Raj Singh and Radha Krishan.
46.It is relevant here to state that the Constitution Bench of Hon'ble Supreme Court in Karnail Singh Vs. State of Haryana (2009) 8 SCC 539 has held that while the delayed compliance with satisfactory explanation about delay will be acceptable compliance of section 42 of the Act but the total non compliance of the requirement of subsection (1) and (2) of section 42 is impermissible. Similarly in Union of India Vs. FIR No. 8/11 PS Special Cell Page 43 of 57 State vs. Anil @ Bhola and ors. SC No. 24/11 Bal Mukund and Ors. (2009) 12 SCC 161 the compliance of section 42 of the Act has been held by Hon'ble Supreme Court to be the mandatory requirement of the law. In the present case, as discussed above, it is admitted by the prosecution witnesses and it is amply proved that the investigating agency were tapping the phones of the accused persons and they were monitoring their activities much prior to 13.02.2011 but inspite of same, it was not reduced into writing as is required u/s 42(1) of the Act and it was not informed to the superior officers of police as mandated u/s 42(2) of the Act. It is argued by Ld. APP for the State that no specific information regarding exchange/delivery of drugs by the accused persons or accurate date or time was ever received during monitoring and no information can be recorded on the basis of vague input and hence the same were not recorded in writing. I do not agree with this contention of the State. If the investigating agency was hearing the telephonic conversation of the accused persons prior to 14.02.2011, this fact should have come on record. An impression is being sought to be created that investigating agency came to know about this case and the accused persons for the first time only when secret information was received on 14.02.2011, which is false. In my view, no explanation has been offered in the present case as to why the mandatory requirements of law was not complied with and in my view, non compliance of this FIR No. 8/11 PS Special Cell Page 44 of 57 State vs. Anil @ Bhola and ors. SC No. 24/11 mandatory requirement vitiates the entire case.
47.Another circumstance which is relevant to be pointed out is that the witnesses of the prosecution have weaved a false story regarding non availability of their mobile phones with them in order to cover up the flaw of their non presence at the alleged places at the relevant time. It is pointed out by Ld. Counsel for the defence that witnesses like PW2 HC Bijender being aware of the fact that accused have already procured the call detail records which proves his presence at Singhu border has cooked up a false story of giving his mobile phone to Inspector Attar Singh.
48.It is relevant here to state that PW2 HC Bijender has stated in his cross examination that he did not remember whether he had gone to Singhu Border on 13.02.2011 at about 05.00 PM and he was not aware with whom he was on duty on that day. He also did not remember whether on that day i.e. on 13.02.2011 he was on duty either with SI Satender Vashisht, Hawa Singh, Raj Singh or any other officer of Special Cell. He admitted that he was using mobile number 9868392452 and 7503370652 during those days. He further deposed that on 13.02.2011, he had gone to Ghaziabad to execute a warrant in case FIR No. 07/09 under Arms Act PS Special Cell at about 09.30 AM and he returned back on 15.02.2011 and during this period he remained in Ghaziabad only. He further stated FIR No. 8/11 PS Special Cell Page 45 of 57 State vs. Anil @ Bhola and ors. SC No. 24/11 that in the morning of 13.02.2011 he was called by Inspector Attar Singh at the office and there he handed over his mobile phone to him since his mobile phone had call ID tracker which was required by Inspector Attar Singh and at that time, he remained with Inspector Attar Singh for about 1015 minutes and then he came back to his house. In this context, it is noteworthy that the call detail records of HC Bijender and Inspector Attar Singh show that from 05.00 AM to 11.00 AM the location of phone of HC Bijender is at Singhu Border whereas Inspector Attar Singh was present in the area of Meerabagh and therefore the mobile phone of HC Bijender could not have been handed over to Inspector Attar Singh between 05.00 AM to 06.00 AM on 13.02.2011, otherwise the phone location of both the phones would have been at the same place. It is not out of place to mention here that PW8 ASI Raj Singh has admitted in his crossexamination that he had two mobile numbers at the relevant time bearing no. 9958993985 and 7503390660 and he had used both the phones on 13.02.2011 and 14.02.2011 but he tried to amend in later part of his testimony by saying that he had given his mobile bearing no. 7503370660 to an informer whose name he did not want to disclose in the court and the said informer returned the said mobile phone to him in the night of 14.02.2011 to his wife in his absence. It is stated by Ld. Counsel for the defence that this part of the testimony of this witness is FIR No. 8/11 PS Special Cell Page 46 of 57 State vs. Anil @ Bhola and ors. SC No. 24/11 highly untrustworthy and it cannot be believed that he would hand over his official mobile phone to any of his informer who would return the said phone to his wife in his absence on the night of 14.02.2011. In my view, there is merit in the contention of Ld. Counsel for the defence and it appears that the witnesses of the prosecution are weaving false story regarding the non availability of their mobile phones with them.
49.It is argued by Ld. APP that the reason for not matching the position of few members of raiding party with the cell ID chart of their mobile phone is that sometimes neighboring cell IDs overlap each other. It is further stated that mobile service providers keep on changing the names and number of their cell towers from time to time and it is further stated that sometimes they join more areas or delete some areas from the jurisdiction of cell towers and hence this record cannot be foolproof and it may not reflect the true position. I do not agree with this contention of the State because no such suggestion has been given to the witnesses of the mobile service providers who have appeared in court. The State could have pinpointedly asked them about the location, name, number of the cell tower in question and the change, if any, made in that regard in the past but no such question was asked and hence at this stage of final argument, the State cannot present this argument.
50.The next circumstance which is doubtful is the secret information FIR No. 8/11 PS Special Cell Page 47 of 57 State vs. Anil @ Bhola and ors. SC No. 24/11 received by SI Virender Tyagi. As per the case of the prosecution on 14.02.2011 SI Virender Tyagi received secret information at about 11.30 AM which was recorded at about 12.15 PM as DD No.10. As per this secret information, the secret informer had come at about 11.30 AM to the office of Special Cell, Rohini, Delhi and he informed SI Virender Tyagi that one person namely Hari Prasad r/o Sonepat was trafficking in heroin and on that day he would come near Montfort School at Ashok Vihar between 01.15 to 02.15 PM to supply contraband to one Anil @ Bhola. It is alleged by Ld. Counsel for the defence that it was all concocted and he did not receive any secret information as alleged because till that time they had already apprehended accused Hari Prasad and Anil @ Bhola on 13.02.2011 itself. SI Virender Tyagi has admitted in his crossexamination that he did not know the said secret informer prior to 14.02.2011 and for the first time, he was meeting the said informer in the office of Special Cell on 14.02.2011. In these circumstances, it is not clear how the secret informer came to SI Virender Tyagi to give this information in question and not to any other police official of the Special Cell. In the crossexamination, he has admitted that the mobile phones no. 7503370087 and 9212015177 belong to him and he was using both the said phones throughout the month of February, 2011. He has further stated that he was residing at sector 16, FIR No. 8/11 PS Special Cell Page 48 of 57 State vs. Anil @ Bhola and ors. SC No. 24/11 Rohini and the distance between his residence and his office at sector 6, Rohini was about 6 KM and it takes approximately half an hour to reach from his residence to his office at sector 6, Rohini. The call detail records/Cell ID Chart of the mobile phones of this witness bearing no. 7503370087 shows his location on 14.02.2011 at 11.43 AM at sector 16, Rohini. It shows that at that time, he was at his residence and not at his office in the Special Cell which was admittedly at a distance of about half an hour from his residence.
51.Further there is contradiction in the statement of prosecution witnesses regarding the secret informer. According to ASI Raj Singh (PW8), the secret informer had come in his presence but this fact is denied by IO SI Virender Tyagi. Further according to ASI Raj Singh, Inspector Attar Singh had gone to the ACP alongwith the secret informer but Inspector Attar Singh who was examined as PW18 has denied the same. Further there is contradiction in the testimony of prosecution witnesses regarding the seat occupied by the secret informer in the vehicle when the raiding party members started from the office of Special Cell for going to the spot.
52.It is further argued by Ld. Counsels for defence that the proceedings allegedly conducted on 15/2/2011 and the recoveries allegedly effected from the accused Anil @ Bhola from his house, from accused Om FIR No. 8/11 PS Special Cell Page 49 of 57 State vs. Anil @ Bhola and ors. SC No. 24/11 Prakash and the recovery effected from the house of accused Hari Prasad at Omex City, Sonepat are also highly doubtful. I find merit in the contentions of Ld. Counsels for the defence. There is material contradiction in the statement of prosecution witnesses regarding the recoveries which were effected from the accused on that day. PW9 HC Dilawar Singh has deposed that on 15/2/2011 from the house of accused Anil @ Bhola two substances i.e. heroin and acetic anhydride were recovered. Whereas Inspector Satender Vasisth (PW10) has deposed that besides heroin and acetic anhydride other substances were also recovered i.e. power and phena. Further there is material contradiction in the statement of prosecution witnesses regarding recovery effected from accused Om Prakash at Omex City, Sonipat. PW9 HC Dilawar Singh has deposed that the accused Om Prakash after opening the house went to the bed room after seeing the police party and then he immediately went to bathroom with contraband. Whereas SI Satender Vasisth has deposed that the accused Om Prakash had opened the gate and he was holding polythene containing the contraband and on seeing the police party he ran towards the bathroom. There is contradictions in the sequence of events as to whether the accused Om Prakash was holding the contraband when he allegedly opened the gate or that after seeing the police party he went to the bedroom and then rushed towards the bathroom with FIR No. 8/11 PS Special Cell Page 50 of 57 State vs. Anil @ Bhola and ors. SC No. 24/11 contraband to flush the same. Further, admittedly the distance between the Ambedkar Hospital, Rohini, Delhi to Omex City, Sonipat was also 40 km. and further admittedly the police party remained at Sonipat for about 3 - 3 ½ hours and hence it looks impossible for the police party to leave Delhi for Omex City, Sonipat at about 11:00 AM and reach at Patiala House Courts at about 3:30 PM with the accused persons to take their remand. There is nothing on record to explain the contradictions mentioned above and in my view the same are very material and fatal to the case of the prosecution.
53.It is further relevant here to say that no sincere efforts were made by the Investigating Officer to join any independent witnesses in the recovery proceedings conducted with respect to the accused persons. As per the case of the prosecution accused Anil @ Bhola and Hari Prasad were apprehended on 14/2/2011 near Montfort School, Ashok Vihar, Delhi but despite availability of many offices and residential accommodations near the spot of alleged apprehension of these accused, no effort whatsoever was made by the investigating officer to join the occupants of the said premises in the proceedings at the spot. It has been admitted by the raiding party members that there was a police picket near the spot but no effort was made to join the police officials who were deputed there. The defence has placed on record information collected by them under RTI FIR No. 8/11 PS Special Cell Page 51 of 57 State vs. Anil @ Bhola and ors. SC No. 24/11 furnished by Delhi Police which states that HC Chet Ram and Woman Ct. Sunita were at duty in the said police picket from 10:00 AM to 8:00 PM on the said day and they were not aware of any such incident. It is not believable that a police party consisting of so many police officials of special staff apprehended two persons near a police picket and the police officials on duty in the said police picket do not come to know about the incident. These things make the case of the prosecution doubtful. Further the recoveries which were effected from the accused from their respective houses are also located in residential areas and no sincere efforts were made by the investigating agency to join the independent witnesses and it cannot merely take a stand that public witnesses refused to join the investigation. As discussed above on the basis of the call detail records and the cell ID card of the police officials who conducted the investigation from time to time their presence at the spot is highly doubtful. In such circumstances, in view of this Court the joining of the public witnesses and their testimony in court could have come to rescue of the police officials, if any, but the same is completely missing in the present case. The importance of joining of public witnesses in such cases has been recently highlighted by Hon'ble High Court of Delhi in case titled as Masoom & Ors. (Mohd.) Vs. State of NCT of Delhi 2015 IV AD (Delhi) 395 (date of decision: 09.04.2015).
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State vs. Anil @ Bhola and ors. SC No. 24/11
54.It is further relevant here to state that Inspector Attar Singh (PW18) has testified in Court that whatever he has deposed in court, he has deposed on the basis of what IO had informed him. However the testimony of HC Dilawar Singh (PW9) makes it amply clear that Inspector Attar Singh had played much more emphatic role in the investigation. HC Dilawar Singh has deposed that he had heard the telephonic conversations between the accused persons sometime in January, 2011 and Inspector Attar Singh had directed him to hear intercepted calls of the accused persons. He has further deposed that he was conveying the contents of suspected telephonic conversation heard by him in the present case on a daily basis to Inspector Attar Singh and he even used to make Inspector Attar Singh listen to the calls. He further admitted that Inspector Attar Singh listened to the call conversations between the accused persons at least 5060 times. No documents has been placed on record by the prosecution to show under what authority they were hearing the conversations between the accused at the office of Special Cell and no document authorising them to inspect the calls of the accused persons has been placed on record.
55.Further the recoveries allegedly made from accused Nand Kishore Tiwari are also highly doubtful. As per the case of the prosecution on the basis of the disclosure statement of accused Hari Prasad Verma the raiding FIR No. 8/11 PS Special Cell Page 53 of 57 State vs. Anil @ Bhola and ors. SC No. 24/11 party members consisting of SI Virender Tyagi, SI Satender Vasisth, HC Raj Singh and HC Bijender among others went to A39, Ganesh Puri, Shalimar Garden, Extension II, Ghaziabad and apprehended the accused Nand Kishore Tiwari who was running a factory of manufacturing heroin and there was recovery of 500 grams of heroin and other controlled substances which were being used for the preparation of heroin. However, the call detail records and the cell ID chart of SI Satender Vasisth (no. 7503370800 Aircel and no. 9212751773 Tata), SI Virender Tyagi (no. 7503370087 Aircel and no. 9212015177 Tata), HC Raj Singh (no. 7503370660 Aircel) and HC Bijender (no. 7503370652 Aircel) belies claim of the said police officials that they ever visited Ghaziabad on 23/2/2011. Their call detail records (the mobile numbers have been admitted by the said police officials) shows that on 23/2/2011 they never visited Ghaziabad and they were in Delhi throughout the day. The call detail records which are on record pertain to the entire day in question from morning till evening.
56. Besides the aspect mentioned above it is relevant here to state that there are material contradictions in the statement of the prosecution witnesses regarding the description of house no. A39, Ganesh Puri, Sahibabad as the witnesses have given varied description of the room in question from where the accused was allegedly arrested. There is also discrepancy in FIR No. 8/11 PS Special Cell Page 54 of 57 State vs. Anil @ Bhola and ors. SC No. 24/11 their statement regarding the arrival and entry in the house and regarding the staircase. Further the site plan of the said premises ExPW2/DA is also incorrect and it has been so admitted by PW12 Sh. Sarvesh Kumar Sharma, who is landlord of the said property. In the site plan the gali next to Hanuman Mandir has been shown in wrong direction and it is not possible that if the police officials prepared the site plan at the spot, this glaring error can come in the preparation of the site plan. It shows that the site plan was prepared by the police sitting in the police station and not at the spot. As stated above, no effort was made by the raiding party to join a public witness inspite of all the fact that there were a number of houses adjoining the house of this accused and it creates doubt in the case of the prosecution.
57.It is further relevant here to state that the site plan (Ex.PW3/DA) does not reflect true picture. It is admitted by the prosecution witnesses that the Montfort school and DDA Flats have been shown at wrong places in the site plan. It is admitted by them that the Montfort School is at point F where DDA flats are shown and the DDA flats are at point E where the Montfort School has been shown in the site plan. Similar was also the question in case titled as Ram Prakash Vs. State 2014(146) DRJ 629 in which Hon'ble court had held that the court can only observe that with so many technological advances where satellite imagery to the smallest FIR No. 8/11 PS Special Cell Page 55 of 57 State vs. Anil @ Bhola and ors. SC No. 24/11 degree of precision of any location in the world is available, the Delhi Police can no longer be excused for not improving its methods of gathering and presenting evidence.
58.In the light of the above referred deficiencies, inconsistencies and discrepancies, in the opinion of this court, it can be said that the prosecution has not been able to establish its case beyond reasonable doubt. The call detail records and the cell ID chart of the mobile phones of the raiding party members of the police of different dates creates doubt about their appearance at the spot and the evidence is lacking to establish that the contraband was recovered from the possession of the accused persons in the manner alleged by the prosecution on the said dates, time and places. The accused deserve benefit of doubt.
59.In view of the above and in totality of the facts and circumstances, it is held that the prosecution has not been able to prove its case beyond reasonable doubt and hence the accused persons are acquitted of the charges framed against them. Their bail bonds are cancelled and sureties are discharged.
60.Requisite bonds u/s 437A Cr.PC have already been furnished on behalf of all the accused except Nand Kishore Tiwari. Accused Nand Kishore Tiwari has not furnished bond u/s 437A Cr.PC inspite of several opportunities. It is stated by Ld. Defence counsel that he has already FIR No. 8/11 PS Special Cell Page 56 of 57 State vs. Anil @ Bhola and ors. SC No. 24/11 intimated this fact to his family members but they are not coming forward to furnish the requisite bond u/s 437A Cr.PC on his behalf. In view of the same, all the accused persons except accused Nand Kishore Tiwari be released from jail, if they are not required in any other case. Copy of the judgment be provided to all the accused persons free of cost.
61.Accused Nand Kishore Tiwari be again produced on the next date for further enquiry on this point.
Announced in open Court
on this 30th day of May, 2015 (Deepak Garg)
Special Judge NDPS : New Delhi
Patiala House : New Delhi
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