Delhi District Court
State vs Jameel on 5 June, 2024
IN THE COURT OF SPECIAL JUDGE (NDPS), SHAHDARA,
KARKARDOOMA COURTS, DELHI
STATE VS. JAMEEL
Session Case No. : 231/2018
CNR No. : DLSH01-003153-2018
FIR No. : 88/2018
U/s : 21/61/85 of the NDPS Act, 1985
PS : Seema Puri
In the matter of :-
State
Versus
Jameel
S/o Sh. Habib
R/o Mohalla Nizampur near Badi Mazar,
town Jalalabad, District Shahjahanpur,
Uttar Pradesh.
.......... Accused
Date of institution : 09.05.2018
Date when judgment reserved : 03.06.2024
Date of Judgment : 05.06.2024
JUDGMENT:-
1. This is a case in which accused Jameel has faced trial for commission of offence punishable under Section 21/61/85 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short "the NDPS Act") on the allegation that he was found in possession of contraband i.e. heroin weighing about 271 grams without any permit SC No. 231/2018 Page 1 of 37 State vs. Jameel Judgment dt. 05.06.2024 or licence/authority in contravention of provisions of the NDPS Act.
2. The case of the prosecution as borne out from the charge-sheet is as under: -
2.1. On 31.01.2018, ASI Mewa Ram along with HC Sunil Kumar and Ct. Virendra was on patrolling duty in the area of PS Seema Puri vide DD no. 96B and while patrolling when they reached in front of gate of Shamshan Ghat via Apsara Border, Old Seema Puri, Delhi at around 10.25 pm, they saw one person standing there who on seeing the police team got nervous and started moving fast and on suspicion, the said person was apprehended by the aforesaid police officials after chasing him for few steps.
2.2. ASI Mewa Ram took search of said person and one transparent polythene containing some matmella powder was recovered from the inner left pocket of his wearing black colour jacket which smelled like heroin . On interrogation, the said person disclosed his name as Jameel, son of Sh. Habib (the accused herein) and he was apprehended by the aforesaid police officials.
2.3. ASI Mewa Ram informed about recovery of contraband to the SHO telephonically who directed him to conduct the proceedings as per law. ASI Mewa Ram asked 3-4 passersby to join the investigation but none agreed. He then tested the recovered substance with the help of field testing and it was found positive for heroin and on weighing, the entire contraband along with polythene was SC No. 231/2018 Page 2 of 37 State vs. Jameel Judgment dt. 05.06.2024 found 271 grams.
2.4. Since there were chances of further recovery of contraband from the possession of the accused, his search was required to be conducted. ASI Mewa Ram apprised the accused about his legal rights to get himself searched in presence of a Gazetted Officer or Magistrate and to take search of the raiding party before his search and served notice under Section 50 of the NDPS Act upon the accused in this regard, but he refused to avail his legal rights stating that whatever contraband was in his possession, had already been recovered. The accused was further searched but no other contraband was recovered from his possession.
2.5. Thereafter, ASI Mewa Ram out of the 271 grams heroin recovered from possession of the accused drew two samples of 5 grams each, kept them in two separate transparent polythenes and prepared two pullandas of it with the help of cloth which were marked as A1 & A-2. He kept the remaining contraband i.e. 261 grams heroin in the same transparent polythene and the same was also converted into a pullanda which was marked as A and then he sealed and seized all the pullandas along with FSL form which he filled at the spot.
2.6. ASI Mewa Ram prepared a tehrir and handed over the same to Ct. Virendra along with all the sealed case property, FSL Form and carbon copy of seizure memo with a direction to hand over the tehrir to the Duty Officer SC No. 231/2018 Page 3 of 37 State vs. Jameel Judgment dt. 05.06.2024 for registration of case and other articles to the SHO for further proceedings who complied with the said directions.
2.7. After registration of FIR, further investigation was marked to SI Monu Chauhan who during investigation prepared the site plan, arrested the accused, conducted his personal search, recorded his disclosure statement and obtained 04 days PC remand of the accused. During PC remand of accused Jameel, SI Monu Chauhan arrested accused Taslim from Bareily, Uttar Pradesh at the instance of accused Jameel and at the instance of accused Taslim arrested another co-accused Ansar, however nothing incriminating was found against accused Taslim and Ansar and they were released by the Court. During further investigation, SI Monu Chauhan got deposited the exhibit at FSL Rohini and recorded the statement of witnesses.
After completion of investigation and pending FSL result, he prepared the charge sheet against accused Jameel and filed in the Court on 09.05.2018.
3. FSL result was filed by way of supplementary charge-sheet on 04.10.2018 as per which Exhibit 'A-1' was found to contain 'Diacetylmorphine', '6- monacetylmorphine', 'Phenobarbital', 'Acetaminophen', 'Caffeine' and 'Acetylcodeine'. Further Exhibit 'A-1' was found to contain 'Diacetylmorphine'2.3% and 'Phenobarbital' 2.2%.
4. After compliance of section 207 Cr.P.C., charge SC No. 231/2018 Page 4 of 37 State vs. Jameel Judgment dt. 05.06.2024 under Section 21/61/85 of the NDPS Act was framed against the accused on 19.03.2019 to which he pleaded not guilty and claimed trial.
5. In order to prove its case, the prosecution has examined 13 witnesses. Brief outline of the testimonies of the prosecution witnesses is discussed as under:-
6. PW-1 is Ct. Vikas who was the Diarist at Office of ACP, Seema Puri on 01.02.2018. He received the report under Section 57 of the NDPS Act in the present case on 01.02.2018 and made entry in this regard in the Daily Diary register at Serial No. 436, copy of which is Ex. PW1/A. He has also produced on record the original report under Section 57 of the NDPS Act as Ex.PW1/B bearing signature of the ACP Ram Singh at point A.
7. PW-2 HC Sunil Kumar and PW-3 Ct. Virendra Kumar were the members of the police team led by 1 st IO/ASI Mewa Ram which apprehended the accused along with contraband. They were also witnesses to the proceedings carried out by SI Monu Chauhan, the 2nd IO at the spot and have deposed more or less as per deposition of 1st IO/ASI Mewa Ram and 2nd IO/SI Monu Chauhan whose testimonies shall be discussed at the later stage.
8. During evidence of PW-2 HC Sunil Kumar, the entire case property which includes the contraband recovered from the accused as well as the sample which was received back from the FSL were brought on record. The witness has identified the same as part of the SC No. 231/2018 Page 5 of 37 State vs. Jameel Judgment dt. 05.06.2024 contraband recovered from the possession of the accused. The documents as well as the case property which were brought on record by this witness are mentioned as under
along with their identification marks:-
i. Carbon copy of notice under Section 50 of the NDPS Act served upon the accused as Ex. PW2/A;
ii. seizure memo of the case property as Ex. PW2/B;
iii. arrest memo of the accused as Ex.PW2/C;
iv. personal search memo of the accused as Ex.PW2/D;
v. pullanda Mark A-1 which was sent to FSL and produced by MHC(M) containing sample of contraband in a transparent polythene taken out from the recovered contraband from the accused and the sample contraband along with polythene is Ex. P-1 ; vi. Sealed cloth pullanda Mark A-2 produced by MHC(M) containing sample of contraband in a transparent polythene taken out from the recovered contraband from the accused and the sample contraband along with polythene is Ex. P-2 ;
vii. Sealed cloth pullanda Mark A produced by MHC(M) containing contraband in a transparent polythene recovered from the accused from which two samples were taken out and the contraband along with polythene is Ex.P -3.
9. PW-4 Ct. Lalit Kumar was the DD writer at PS Seema Puri on 31.01.2018 and his duty hours were 4.00 pm to 12 midnight. He has produced on record the original DD no. 96B regarding departure of the police team from the police station in the area of PS Seema Puri for prevention of crime and the same is Ex.PW4/A. SC No. 231/2018 Page 6 of 37 State vs. Jameel Judgment dt. 05.06.2024
10. PW-5 Inspector Sanjeev Kumar is the then SHO, PS Seema Puri, Delhi who received three sealed pullandas bearing seal of 'MR' along with FSL form and carbon copy of seizure memo from Ct. Virendra on 01.02.2018 which he deposited in the malkhana through MHC(M) and entry in this regard was made by MHC(M) at serial no. 78/1804 in register no. 19 which was also signed by him. He also lodged DD no. 4A at 1.09 am regarding proceedings conducted by him, true copy of which is Ex.PW5/A. He also received report under Section 57 NDPS Act Ex.PW1/B in the present which he forwarded to ACP concerned.
11. PW-6 HC Rohtas was working as MHC(M), PS Seema Puri, Delhi on 15.02.2018. On that day, he made entry in register no. 19 from point X to X1 at serial no. 78/1804 in register no. 19 to the effect that one sealed cloth pullanda Mark A-1 along with other documents were sent to FSL through Ct. Virendra vide RC no. 11/21/18. After depositing the case property, Ct. Virendra handed over him the acknowledgment of case acceptance along with road certificate and he made entry in this regard from point Y to Y1 at serial no. 78/1804 in register no. 19. Copy of the said entry is Ex. PW6/A. He has also placed on record the photocopy of RC no. 11/21/18 as Ex. PW6/B and photocopy of acknowledgment as Ex. PW6/C.
12. PW-7 ASI Mewa Ram is the 1st Investigating Officer (IO) of the case. He is the head of the patrolling team SC No. 231/2018 Page 7 of 37 State vs. Jameel Judgment dt. 05.06.2024 which apprehended the accused and recovered the contraband from him. This witness more or less deposed as per the averments made in the charge-sheet. Thus, the detailed account of his testimony is not being repeated here for the sake of brevity and shall be discussed at the later and appropriate stage of the judgment. The witness during his deposition has identified the original notice under Section 50 of the NDPS Act served by him upon the accused which is Ex.PW7/Y.
13. PW-8 is ASI Ram Kumar, who was the Duty Officer at PS Seema Puri on 01.02.2018 and his duty hours were from 12 midnight to 8.00 am. He registered the present case FIR on the basis of tehrir, copy of which is Ex.PW8/A. He also issued certificate under Section 65 B of the Indian Evidence Act which is Ex. PW8/B and also made DD no.3A regarding registration of FIR and DD No. 4A regarding deposition of case property in the malkhana on 01.02.2018, copy of which is Ex. PW8/C.
14. PW-9 is ASI Rajender, the then MHC(M), PS Seema Puri who deposited the case property i.e. three pullandas duly sealed with the seal of 'MR' & 'SK' having mark A, A1 and A-2 with FSL form in the malkhana in the intervening night of 31.01.2018/01.02.2018 which were handed over to him by SHO/Inspector Sanjeev Kumar and he made entry in this regard in register no. 19 at serial no. 1804 which was counter signed by Inspector Sanjeev Kumar. The copy of the relevant page of register no. 19 SC No. 231/2018 Page 8 of 37 State vs. Jameel Judgment dt. 05.06.2024 showing the said entry is Ex. PW9/1. He also produced on record copy of RC no. 11/12/18 made by HC Rohtash who was working as MHC(M) on 15.02.2018 by which sample mark A-1 was sent to FSL Rohini through Ct. Virendra as Ex.PW9/2 and copy of acknowledgment as Ex. PW9/3. This witness received FSL result on 31.07.2018 which he handed over to concerned IO after making relevant entry in register no. 19 at Serial No. 1804.
15. PW-10 is ASI Netra Pal Singh is one of the police officials who had joined the investigation in this case along with 2nd IO/ SI Monu Chauhan on 02.02.2018 and 04.02.2018. On 02.02.2018, he along with Ct. Prince, IO SI Monu Chauhan and accused Jameel went to Bareily at Chopla Choraha near flyover in search of accused Taslim and accused Taslim was arrested by IO SI Monu Chauhan in this case on the identification of accused Jameel vide arrest memo Ex.PW10/A, personal search of said accused was conducted vide personal search memo Ex. PW10/B and his disclosure statement was recorded which is Ex. PW10/C. On 04.02.2018, this witness along with Ct. Prince, IO SI Monu Chauhan and accused Taslim went to Bareily and reached at Dulhe miyan ki mazar where they apprehended accused Ansar on the pointing out of accused Taslim, who was arrested in this case by SI Monu Chauhan vide arrest memo Ex.PW10/D, personal search of said accused was conducted vide personal search memo Ex. PW10/E and his disclosure statement was recorded which is Ex. PW10/F. SC No. 231/2018 Page 9 of 37 State vs. Jameel Judgment dt. 05.06.2024
16. PW-11 SI Monu Chauhan is the 2nd IO who conducted the investigation after registration of FIR. After receipt of copy of FIR and original rukka, he alongwith Ct. Virendra reached at the spot i.e. near Shamshan Ghat Electricity transformer, Old Seema Puri, Delhi where ASI Mewa Ram handed over him original seizure memo and copy of notice and custody of accused Jameel. He prepared the site plan Ex.PW11/A at the instance of ASI Mewa Ram, arrested the accused vide arrest memo Ex. PW2/C, conducted personal search of the accused vide memo Ex.PW2/D during which original notice under Section 50 of the NDPS Act, Rs. 200/- and one keypad mobile phone were recovered from the possession of the accused. He, thereafter, recorded disclosure statement of the accused which is Ex. PW11/B, obtained 04 days PC remand of the accused and prepared report under Section 57 of the NDPS Act and sent the same to senior officer. During PC remand of accused of accused Jameel, he arrested co-accused Taslim and at the instance of accused Taslim arrested another co-accused Ansar. On 15.02.2018, he got deposited the exhibit at FSL Rohini through Ct. Virendra. After completion of the investigation, he prepared the charge-sheet and submitted the same before the Court and also filed the FSL result by way of supplementary charge-sheet.
17. PW-12 Dr. Subhash Chandra is the Senior Scientific Officer, Chemistry who was posted at Forensic Science Laboratory (FSL), Rohini on 15.02.2018 and to whom SC No. 231/2018 Page 10 of 37 State vs. Jameel Judgment dt. 05.06.2024 sealed parcel mark A-1 was marked for chemical analysis. He chemically examined the exhibit and prepared his detailed report dated 15.06.2018 which is Ex. PW12/A as per which Ex. A-1 was found to be heroin ('Diacetylmorphine'2.3% and 'Phenobarbital' 2.2%). After examination, he sealed the remnants of the exhibit with the seal of 'SC FSL DELHI' and forwarded the report in a sealed envelope to the concerned authority.
18. PW-13 HC Prince Tomar was another police official who along with ASI Netra Pal Singh had joined the investigation in this case carried out by 2 nd IO/ SI Monu Chauhan on 02.02.2018 and 04.02.2018. He has deposed on the similar lines as deposed by PW-10 ASI Netra Pal Singh.
19. After closing of the prosecution evidence, statement of the accused under Section 313 Cr.P.C. was recorded wherein he pleaded his innocence and claimed that he has been falsely implicated in the present case. The accused opted not to lead evidence in his defence.
20. I have heard the Ld. Additional Public Prosecutor and the Ld. Counsel for the accused and perused the record.
21. During course of the arguments, Ld. Addl. Public Prosecutor submitted that the prosecution through testimonies of recovery witnesses i.e. PW-2 HC Sunil Kumar, PW-3 Ct. Virendra Kumar and PW-7 ASI Mewa Ram, the 1st IO has successfully proved its case regarding SC No. 231/2018 Page 11 of 37 State vs. Jameel Judgment dt. 05.06.2024 recovery of contraband from the possession of the accused at the spot. He further argued that the relevant provisions of the NDPS Act were duly complied with in the present case. He further argued that all the witnesses have supported the case of the prosecution and the prosecution has been able to prove its case against the accused and, therefore, the accused may be convicted for the offence charged with.
22. Per contra, Ld. Counsel for the accused has argued that the accused is innocent and has been falsely implicated in the present case. He further argued that no contraband was recovered from the possession of the accused and alleged contraband has been planted upon the accused. He further argued that there are material contradictions in the testimonies of prosecution witnesses which put the prosecution case under suspicion. He further submitted that no public witness has been joined during the entire investigation and the entire case rests solely on the testimony of police officials which further makes the story of the prosecution doubtful. He further submitted that two different seals of IO i.e. "MR" and "MW" were found affixed on the pullandas allegedly sealed by the IO/ASI Mewa Ram at the spot and hence possibility of tampering with the pullandas cannot be ruled out. He further submitted that there is no compliance of provisions of Section 50 of the NDPS Act. He further submitted that as per seizure memo Ex.PW2/D, carbon copy of notice was recovered from the possession of the accused, while as per SC No. 231/2018 Page 12 of 37 State vs. Jameel Judgment dt. 05.06.2024 deposition of prosecution witnesses, original notice was served upon the accused and this discrepancy clearly shows that no such notice was served upon the accused at the spot and the accused was made to sign the notice at the police station. He further submitted that provisions under Section 57 of the NDPS Act in the present case has not been complied with as the 1 st IO/ASI Mewa Ram has not made any report informing his superior about the seizure of the contraband from the possession of the accused and the report prepared by 2nd IO/ SI Monu Chauhan Ex.PW1/B is not regarding the arrest of the accused, rather he has reported about the proceedings carried out by 1 st IO/ASI Mewa Ram. Ld. Counsel for the accused further submitted that there was also no compliance of Section 52A of the NDPS Act as the samples were not drawn by the IO in the presence of Magistrate. He contended that the prosecution has failed to comply with the mandatory provisions under the NDPS Act in the present case and also failed to prove its case against the accused beyond reasonable doubt and hence the accused is liable to be acquitted.
23. As per case of the prosecution, accused Jameel was apprehended by the patrolling team of PS Seema Puri, Delhi comprising ASI Mewa Ram, HC Sunil Kumar and Ct. Virendra on 31.01.2018 at around 10.25 pm from the area of Shamshan Ghat, Old Seema Puri, Delhi as they found the accused standing in suspicious condition in front of gate of Shamshan Ghat and on seeing the police SC No. 231/2018 Page 13 of 37 State vs. Jameel Judgment dt. 05.06.2024 patrolling team, he got nervous and tried to flee away from there. Upon search, the accused was found in possession of 271 grams heroin. While the accused has denied the entire case of the prosecution in his statement recorded under Section 313 Cr.P.c. and claimed that he has been falsely implicated by the police in the present case and no alleged contraband was recovered from his possession.
24. In order to prove its case, the prosecution has examined the patrolling team members, namely, PW-2 HC Sunil Kumar, PW3 Ct. Virendra Kumar and PW-7 ASI Mewa Ram who have spelled out in detail how the accused was apprehended with contraband.
25. PW-7 ASI Mewa Ram who was the initial IO and head of the patrolling team which apprehended the accused with contraband has deposed that on 31.01.2018, he was on patrolling duty along with HC Sunil and Ct. Virendra in the area of PS Seema Puri vide DD No. 96-D and while patrolling, when they reached at Shamshan Ghat via Apsara Border at about 10.25 pm, they saw one person standing in front of gate of Shamshan Ghat who on seeing the police party started to slip away from there. On suspicion, he asked Ct. Virendra and HC Sunil to apprehend the said person and both of them apprehended the said person. He further deposed that he took cursory search of the accused and one transparent polythene containing some matmella powder was recovered from the inner left pocket of black colour jacket of the accused SC No. 231/2018 Page 14 of 37 State vs. Jameel Judgment dt. 05.06.2024 which smelled like heroin. He informed about recovery of contraband to the SHO telephonically who directed him to conduct the proceedings as per law. He further deposed that he directed HC Sunil Kumar to bring field testing kit and electronic weighing machine from the police station who brought the same at the spot and then he took out some powder from the polythene after mixing it and tested it on the field testing kit and it was found positive for heroin. He then asked 3-4 passersby to join the investigation but none agreed and due to paucity of time, no notice in writing could be served upon those persons. He further deposed that he weighed the entire contraband along with polythene and it was found 271 grams.
26. The other patrolling team members examined by the prosecution i.e. PW-2 HC Sunil Kumar and PW-3 Ct. Virendra have deposed more or less on the similar lines as deposed by PW-7 ASI Mewa Ram regarding apprehension of the accused from the spot and recovery of 271 grams heroin from his possession.
27. It is to be noted here as per deposition of PW-2 HC Sunil Kumar and PW-3 Ct. Virendra, they along with ASI Mewa Ram had departed from the police station on 31.01.2018 for patrolling duty in the area of Seema Puri, Delhi vide DD No. 96 B, while PW-7 ASI Mewa Ram has deposed that he along with HC Sunil Kumar and Ct. Virendra had departed from the police station for patrolling vide DD No. 96D. However, the said SC No. 231/2018 Page 15 of 37 State vs. Jameel Judgment dt. 05.06.2024 discrepancy in the DD number in the deposition of PW-7 ASI Mewa Ram appears to be a typographical mistake. True copy of the said DD has been produced on record by PW-4 Ct. Lalit Kumar as Ex.PW4/A and it mentions the DD number as 96B dated 31.01.2018. Therefore, in view of documentary evidence on record, it is evident that correct number of departure entry is DD No. 96B and due to typographical mistake, the DD number has been mentioned as 96D in the deposition of PW-7 ASI Mewa Ram instead of 96B.
28. However, there are other discrepancies and contradictions in the testimonies of aforesaid recovery witnesses of the prosecution to doubt its story of apprehension of the accused from the spot with 271 grams heroin.
29. PW-2 HC Sunil Kumar, one of the recovery witnesses, stated in his cross-examination that they had left the PS at about 9.30 pm and they were on patrolling duty in the area of chowki Seemapuri and this fact is mentioned in DD no. 96B. He further stated that the Shamshan Ghat road is from East to West direction and they reached near Shamshan Ghat from East direction. However, the witness himself contradicts his own statement when in the later cross-examination, he stated that the Shamshan Ghat road is leading from East to West direction and they reached at the spot from West Direction. The earlier statement of the witness is also in contradiction to the statement made by SC No. 231/2018 Page 16 of 37 State vs. Jameel Judgment dt. 05.06.2024 PW-7 ASI Mewa Ram who stated in his cross-examination that the Shamshan Ghat road is from east to west direction and they reached at Shamshan Ghat from western side.
30. PW-2 HC Sunil Kumar has also stated in his cross-
examination that DD no. 96B does not contain about the description of ammunition and other articles being carried by the patrolling team. He volunteered that the said fact is mentioned in the malkhana register and it is mentioned in DD no. 96B that the patrolling team is carrying ammunition and other articles as per malkhana register entry. However, this statement of the witness is contrary to the record. No such fact is mentioned in DD no. 96B Ex.PW4/A. When the attention of the witness was drawn to DD no. 96B, the witness admitted that there is no mention of the description of ammunition and other articles in the said DD entry Ex. PW4/A.
31. Similarly, statement of another recovery witness, namely, PW-3 Ct. Virendra Kumar during his cross- examination that at the time of going for patrolling duty in the area at 10.25 pm, they were having government ammunition with them is contrary to the record as the patrolling team left the police station for patrolling duty at 9.30 pm as per DD no. 96B Ex.PW4/A and not at 10.25 pm as stated by the witness.
32. The aforesaid discrepancies as noted above in the testimonies of both the witnesses goes to show that both the above witnesses themselves are not sure about the SC No. 231/2018 Page 17 of 37 State vs. Jameel Judgment dt. 05.06.2024 contents of the departure entry made vide DD no. 96B Ex. PW4/A and it creates doubt about their departure from the police station for patrolling duty.
33. Further, PW-2 HC Sunil Kumar stated in his cross-
examination that they had noticed the accused from a distance of 20-25 meters from their location, while PW-3 HC Virendra stated in his cross-examination that they had seen the accused from a distance of 40-50 steps and PW-7 ASI Mewa Ram stated that he had seen the accused from a distance of 50-60 meters.
34. Similarly, PW-2 HC Sunil Kumar stated in his cross-
examination that the accused was apprehended after a distance of 15-20 steps when they reached near him. PW-3 HC Virendra also stated that they had apprehended the accused after about moving 20 steps from where he was standing, however PW-7 ASI Mewa Ram contradicts this version of these two recovery witnesses when he states that the accused was chased by HC Sunil and Ct. Virendra and they apprehended the accused after about 60 meters from the place where he was standing.
35. PW-2 HC Sunil Kumar, who as per the case of the prosecution, was sent by IO/PW-7 ASI Mewa Ram to the police station to bring the field testing kit and electronic weighing machine stated in his cross-examination that he went to PS after about one hour to bring field testing kit, weighing machine and IO bag from the spot. He further stated that he went to PS on foot and it took about 15-20 SC No. 231/2018 Page 18 of 37 State vs. Jameel Judgment dt. 05.06.2024 minutes to reach in the PS. He further stated that all the above said three articles were lying in the IO room of ASI Mewa Ram and the field testing kit was lying in the IO bag. He further stated that he reached at the spot after about 30-35 minutes
36. From the aforesaid statement of PW-2 HC Sunil Kumar, it can be deduced that he left the spot for police station to bring the field testing kit, electronic weighing machine and the IO bag at around 11.25 pm as the patrolling team reached at the spot at around 10.25 pm as per their deposition and he went to police station on foot and he reached the police station within 15-20 minutes and came back at the spot after about 30-35 minutes i.e. around 12 midnight.
37. PW-3 Ct. Virendra Kumar has also stated in his cross-examination that HC Sunil went to PS at about 11.30 pm for bringing field testing kit, IO bag and weighing machine. He further stated that HC Sunil went to PS on foot from the spot and took about half an hour for returning from PS to the spot.
38. While, as per statement of PW-7 ASI Mewa Ram, the 1st IO made in his cross-examination, HC Sunil went to PS in a battery rickshaw at 10.40 pm and came back at the spot in the same battery rickshaw at 11.00 pm which statement is completely in contradiction to the statement of other two recovery witnesses as per whom HC Sunil Kumar went to PS on foot at around 11.30 pm and came SC No. 231/2018 Page 19 of 37 State vs. Jameel Judgment dt. 05.06.2024 back at the spot at around 12 midnight.
39. Not only this, PW-2 HC Sunil Kumar contradicts his own statement that all the said three articles i.e. IO bag, field testing kit and electronic weighing machine were lying in the IO room of ASI Mewa Ram in the police station when in his later cross-examination he stated that the IO bag was already with ASI Mewa Ram while going for patrolling duty. He admitted that there is no mention of carrying the IO bag in DD no. 96B Ex. PW4/A. As such, this statement of the witness is not only self contradictory but is also contrary to the record.
40. Further, PW-2 HC Sunil Kumar stated that the field testing kit was having about 6 small size bottles, while as per statement made by PW-3 Ct. Virendra Kumar and PW-7 ASI Mewa Ram, there were two bottles of chemical in the field testing kit.
41. There are further contradictions in the statement of above prosecution witnesses regarding arrival of SI Monu Chauhan at the spot after registration of FIR.
42. PW-2 HC Sunil Kumar stated that SI Monu Chauhan came at the spot at about 1.20 am and remained at the spot for 1.30 - 2.00 hours, while PW-3 Ct. Virendra Kumar stated that he finally left the spot at around 1.30 am alongwith SI Monu Chauhan, ASI Mewa Ram and HC Sunil. This statement of PW-3 Ct. Virendra Kumar is further in contradiction to the version of PW-7 Mewa Ram who deposed that he was relieved from the spot after SC No. 231/2018 Page 20 of 37 State vs. Jameel Judgment dt. 05.06.2024 preparing site plan by the 2nd IO/SI Monu Chauhan at his instance. In his cross-examination also, he stated that he finally left the spot between 1.25 am to 1.30 am alone.
43. As regards the service of notice under Section 50 of the NDPS Act upon the accused, as per deposition of 1st IO/ PW-7 ASI Mewa Ram, he prepared notice under Section 50 NDPS Act in duplicate vide carbon process and served the original notice Ex.PW7/Y upon the accused after apprising him about his legal rights to be searched in presence of a Gazetted Officer or a Magistrate and to take search of the police party before his search but the accused refused to avail his said legal rights and refusal of the accused was written by him on the carbon copy of the notice Ex.PW2/A as the accused stated that he was illiterate and could only write his name in Hindi.
44. Similar deposition was made by other two recovery witnesses, namely, PW-2 HC Sunil Kumar and PW-3 Ct. Virendra regarding service of original notice under Section 50 of the NDPS Act.
45. As such, as per deposition of the above recovery witnesses, original notice under Section 50 of the NDPS Act Ex. PW7/Y was served upon the accused and his refusal was written on the carbon copy of the notice Ex.PW2/A. PW-11 SI Monu Chauhan, the 2 nd IO of the case, who conducted the investigation after registration of FIR, arrested the accused and conducted personal search of the accused vide personal search memo Ex. PW2/D has SC No. 231/2018 Page 21 of 37 State vs. Jameel Judgment dt. 05.06.2024 deposed in his examination-in-chief that original notice under Section 50 of the NDPS Act, Rs. 200/- and one keypad mobile phone were recovered from the personal search of the accused. PW-2 HC Sunil Kumar has also deposed on the similar lines.
46. During his cross-examination also, PW-11 SI Monu Chauhan has stated that he had mentioned in the personal search memo of accused Jameel that original notice under Section NDPS Act was recovered during personal search of the accused.
47. However, perusal of personal search memo of the accused Ex.PW2/D shows that copy of notice under section 50 of the NDPS Act was recovered from his personal search besides other articles and not the original notice as deposed by the above prosecution witnesses. Thus, the aforesaid statement made by PW-11 SI Monu Chauhan in his cross-examination that original notice was recovered during personal search of the accused is contrary to the record. In this regard, PW-2 HC Sunil Kumar during his cross-examination, when his attention was drawn towards Ex. PW2/D, admitted that copy of notice under Section 50 of the NDPS Act was recovered from the accused, which statement is again in contradiction to his own deposition as well as deposition of above prosecution witnesses who claimed that original notice was served upon the accused.
48. These contradictions in the statement of recovery SC No. 231/2018 Page 22 of 37 State vs. Jameel Judgment dt. 05.06.2024 witnesses render the prosecution story regarding apprehension of the accused from the spot, recovery of contraband effected from him and proceedings carried out at the spot doubtful.
49. It may also be noted that in this case, no public witness has been joined upon to authenticate the apprehension of the accused with the contraband at the spot. Right from the apprehension of the accused upto the investigation carried out by PW-11 SI Monu Chauhan, the 2nd IO of the case, it can be seen that neither any notice was served upon the public persons nor any action was taken against them on their refusal to join the investigation.
50. As per deposition of PW-7 ASI Mewa Ram, the 1 st IO, he after recovery of the contraband i.e. heroin from the possession of the accused asked 3-4 passersby to join the investigation after disclosing facts to them but none agreed and went away without disclosing their names and address. He also deposed that due to paucity of time, no notice in writing was served to them.
51. Similar deposition was made by other recovery witnesses, namely, PW-2 HC Sunil Kumar and PW-3 Ct. Virendra Kumar.
52. The Hon'ble Supreme Court in Ritesh Chakraborty vs. State of Madhya Pradesh, 2006 (3) JCC (Narcotics) 150 deprecated the practice of Investigating Officer in not noting down the names of the public persons, who fail to SC No. 231/2018 Page 23 of 37 State vs. Jameel Judgment dt. 05.06.2024 join the investigation.
53. In Anup Joshi vs. State, 1999 (2) CC Cases 314 and Roop Chand vs. State of Haryana, 1999 (1) CLR 69, the failure to proceed against the public persons, who refused to join the investigation was considered as suggestive of the fact that the explanation for non-joining of witnesses is an afterthought and is not worthy of credence.
54. As such, in view of the preposition of law laid down as above, it is to be examined as to whether serious efforts were made by the police to associate the public witnesses or not.
55. In this regard, PW-2 HC Sunil Kumar, who was part of the patrolling team stated in his cross-examination that they reached at the spot after about one hour of their departure from the police station and there was some traffic on the road as well as 1-2 passersby were passing through the place of incident. He further stated that the door of the Shamshan Ghat was closed when they reached surrounding the said area. He further stated that IO had requested 2-4 public persons to join the investigation but none had agreed and left the place without disclosing their identity and no notice was given to those public persons who had refused to join the proceedings. He further stated that the IO had not noted down the reason assigned by those public persons. He further stated that the patrolling team had no other assignment except the investigation of the present case. He further stated that the Holy Cross SC No. 231/2018 Page 24 of 37 State vs. Jameel Judgment dt. 05.06.2024 Hospital is situated at 700 meter from the spot and there is a booster pump house of DJB situated about 150 meter from the spot. He further stated that he and the IO did not make any efforts to call any government official of DJB or Holy Cross Hospital to become witness of the proceedings.
56. PW-3 Ct. Virendra, the another team member of the patrolling team stated in his cross-examination that when they noticed the accused, several public persons were also present there. He further stated that the accused tried to slip away from the spot, however other public persons were also moving through the said road where the spot is located. He further stated that ASI Mewa Ram had not noted down the reason assigned by those public persons who had refused to join the proceedings. He further stated that there is a water boosting pump office of Delhi Jal Board near the spot i.e. at about 200 meters from the spot. He further stated that the officials remained inside the water boosting pump around the clock but its gate gets closed during night time.
57. PW-7 ASI Mewa Ram, the 1st IO during his cross-
examination stated that he had no other assignment except to complete the proceeding of the present case. He further stated that he had requested some public persons to join the proceedings but nobody joined the proceedings and left the spot without disclosing their names and identity and no written notice was given to those public persons. He SC No. 231/2018 Page 25 of 37 State vs. Jameel Judgment dt. 05.06.2024 further stated that the Red Cross hospital is at a distance of about 600 meter from the spot and no government official was called from that place to join the proceedings. He further stated that there is a Delhi Jal Board booster pumping station across the road from the spot but no government officer was called from that place to join the investigation. He volunteered that it was night time and office was closed. He denied the suggestion that the said office of DJB remains opened around the clock.
58. PW-11 Monu Chauhan, the 2nd IO stated in his cross-examination that there was no public movement as it was night time of around 1.30 am when the accused was apprehended though it was a main road. This statement of the witness is in sharp contradiction to the statement of other recovery witnesses who have stated that the accused was apprehended at around 10.30 pm and at the time of apprehension of the accused there was movement of the public persons. This witness further stated that there is Red Cross Hospital at a some distance of the spot and a booster pump house at a distance of 150-200 meters from the spot. He could not say that it remains opened for 24 hours. He further stated that he had not asked any government employee from the above mentioned hospital and DJB booster pump house to become a witness to the proceedings.
59. From the aforesaid cross-examination of the prosecution witnesses, it can be deduced that it was night SC No. 231/2018 Page 26 of 37 State vs. Jameel Judgment dt. 05.06.2024 time when the accused was allegedly apprehended by the patrolling team with contraband at around 10.25/10.30 pm, but still there was movement of the public persons as admitted by the patrolling team members in their cross- examination. Further, Red Cross Hospital and a booster pump house of Delhi Jal Board were situated at a few distance from the spot where allegedly the accused was apprehended with contraband. It is a common knowledge that hospital generally remains open for 24 hours and hence the officials of Red Cross Hospital must be available in the hospital even during the night time. Similarly, the officials of the booster pump house of Delhi Jal Board were also available in the office though its gate was closed as stated by PW-3 Ct. Virendra Kumar in his cross- examination. But despite availability of the government officials and other hospital staff/public witnesses, PW-7 ASI Mewa Ram, the 1st IO did not bother to associate any of the officials of the said booster pump house of DJB or the staff of the hospital in the investigation carried out by him at the spot. Likewise, no such effort was made by 2 nd IO/ PW-11 SI Monu Chauhan to authenticate the proceedings carried out by him at the spot. PW-7 ASI Mewa Ram even did not note down the reasons of refusal of the public persons who allegedly had refused to join the investigation despite the fact that he had no other assignment to be carried out and had sufficient time.
60. It is, thus, clear that no sincere or genuine effort was made by both the IOs to join the public witnesses to verify SC No. 231/2018 Page 27 of 37 State vs. Jameel Judgment dt. 05.06.2024 the proceedings conducted at the spot despite availability of the public witnesses over there.
61. In Mohd. Masoom vs. State of NCT of Delhi, Criminal Appeal 1404/11 decided on 09.04.2015, the Hon'ble High Court in Para No. 10 held as under:-
"10."Appellants" conviction is primarily based upon the testimonies of the police officers/officials only. Admittedly, no independent public witness was associated at any stage of the investigation. True, it is no rule of law that public witnesses should be joined in every eventuality and no conviction can be based upon the testimonies of the police officials. Sometimes, it becomes highly difficult for the police officials to associate independent public witnesses for various reasons. At the same time, it is undoubtedly true that joining of independent public witnesses is not a mere formality. Simply saying by the police witnesses that public witnesses were not available without any evidence to that effect would not suffice. The Investigating Officer is required to make genuine efforts to associate independent public witnesses if available. This is insisted so as to lend authenticity and credibility to the search and recovery that are effected. It is of course not an absolute rule and fact of each case has to be appreciated and scrutinized on its own merits.
62. The Hon'ble High Court in para '21' of the aforesaid Judgment held that, "It has become almost routine practice for the police to say that passersby were requested to join and they declined and went away without disclosing their names and therefore, the Court should be wary of routinely accepting such explanation."
63. In Om Prakash vs. State, III (2014) CCR 1 (Del.), it SC No. 231/2018 Page 28 of 37 State vs. Jameel Judgment dt. 05.06.2024 is held that, "In absence of clear evidence to show that sincere effort was made, Court should not simply accept proposition that generally in such cases no member of public comes forward to help prosecution". Reliance is also placed on Raj Bahadur vs. State of Punjab 2008(4) CC Cases HC 357.
64. It is also to be noted that PW-7 ASI Mewa Ram, the 1st IO has not reported to his immediate superior official about apprehension of the accused and seizure of contraband recovered from possession of the accused within forty-eight hours after such seizure in compliance of Section 57 of the NDPS Act.
65. In this regard, PW-7 ASI Mewa Ram has stated in his cross-examination that he had not lodged any DD in the police station regarding the apprehension of the accused and recovery of contraband effected from his possession, however he had informed telephonically to the SHO. He further stated that no document in writing was made regarding the apprehension of the accused and recovery effected from him when he was apprehended by him. He had also not sent any written information to the PS in this regard through HC Sunil, when he had sent him to bring IO kit, weighing machine and field testing kit. He further stated that he had not submitted any report to the higher officers under Section 57 of the NDPS Act.
66. PW-11 SI Monu Chauhan, the 2nd IO has also stated during his cross-examination that ASI Mewa Ram had not SC No. 231/2018 Page 29 of 37 State vs. Jameel Judgment dt. 05.06.2024 handed over any report under Section 57 NDPS Act to him or to the SHO till filing of the charge-sheet.
67. Although 2nd IO/ PW-11 SI Monu Chauhan has prepared a report under Section 57 of the NDPS Act in the present case which is Ex.PW1/B and produced the same before PW-5 Inspector Sanjeev Kumar, the then SHO PS Seema Puri who further transmitted it to the ACP concerned, however perusal of said report Ex.PW1/B shows that SI Monu Chauhan by the said report has informed about the proceedings carried out by 1st IO/ ASI Mewa Ram i.e. apprehension of the accused with 271 grams heroin and its seizure. It is not understandable that when he was not present at the spot at that time, how he could have reported the said proceedings carried out by ASI Mewa Ram. He did not mention the proceedings carried out by him at the spot in the said report Ex.PW1/B.
68. This fact has been admitted by PW-11 SI Monu Chauhan in his cross-examination when he stated that he had mentioned the facts in the report under Section 57 of the NDPS Act other than investigated by him on the basis of record.
69. It was obligatory on the part of 1 st IO/ASI Mewa Ram to prepare report regarding apprehension of the accused and seizure of contraband from his possession as he conducted the said proceedings. Similarly, 2 nd IO/SI Monu Chauhan was required to prepare report informing the arrest of the accused, but no such procedure has been SC No. 231/2018 Page 30 of 37 State vs. Jameel Judgment dt. 05.06.2024 adopted by both the IOs in the present case. In these facts, it cannot be said that there was proper compliance of Section 57 of the NDPS Act.
70. The Ld. Counsel for the accused has also assailed the sampling done by the 1st IO in this case and argued that sampling in this case has been done in violation of Section 52 A of the NDSP Act.
71. In the present case, samples of the contraband i.e. heroin recovered from the possession of the accused were drawn by ASI Mewa Ram, the 1st IO at the spot. In this regard, PW-7 ASI Mewa Ram has deposed that he took out two samples of 5 grams each from the contraband recovered from the accused and kept them in two separate transparent polythenes and prepared two pullandas of it with the help of cloth which were marked as A1 & A-2; and the remaining contraband i.e. 261 grams heroin was kept in the same transparent polythene which was also converted into a pullanda with the help of cloth which was marked as A and then he put his seal 'MR' on all the samples. He also filled FSL form and put his seal 'MR' on the same and then he seized all the pullandas vide seizure memo Ex.PW2/B. Thereafter, he prepared a tehrir Ex.PW7/X and handed over the same to Ct. Virendra along with all the sealed case property, FSL Form and carbon copy of seizure memo with a direction to hand over the tehrir to the Duty Officer for registration of case and other articles to the SHO for further proceedings. He further SC No. 231/2018 Page 31 of 37 State vs. Jameel Judgment dt. 05.06.2024 deposed that after registration of FIR, Ct. Virendra along with SI Monu Chauhan came at the spot and he produced the accused before new IO/SI Monu Chauhan. He also handed over the original copy of seizure memo and carbon copy of notice under Section 50 NDPS Act to IO/SI Monu Chauhan. He further deposed that IO/ SI Monu Chauhan prepared site plan at his instance and, thereafter, he was freed by the IO and he left the spot.
72. Similar deposition was made by two other two witnesses, namely, PW-2 HC Sunil Kumar and PW-3 Ct. Virendra Kumar.
73. Now, it has to be seen as to whether the act of drawing samples by the 1st IO without taking recourse to the provisions of sub-section 2 of Section 52A of the NDPS Act has rendered the entire prosecution against the accused vitiated as also argued by the Ld. Counsel for the accused.
74. In Simaranjit Singh vs. State of Punjab, Criminal Appeal No. 1443 of 2023 decided on 09.05.2023, similar issue was raised by the Ld. Counsel for the appellant that the prosecution is vitiated as the work of drawing sample was done by PW-7 without taking recourse to sub-section 2 of Section 52A of the NDPS Act.
75. The Hon'ble Apex Court while referring to paragraphs 15 to 17 of its decision in Union of India vs. Mohanlal & Anr., (2016) 3 SCC 379 observed as under: -
"9. Hence, the act of PW-7 of drawing SC No. 231/2018 Page 32 of 37 State vs. Jameel Judgment dt. 05.06.2024 samples from all the packets at the time of seizure is not in conformity with the law laid down by this Court in the case of Mohanlal. This creates a serious doubt about the prosecution's case that substance recovered was a contraband".
76. With these observations, the Hon'ble Apex Court held that the the case of the prosecution is not free from suspicion and the same has not been established beyond a reasonable doubt; accordingly set aside the impugned judgments and quashed the conviction and sentence of the appellant in that case.
77. In Yusuf @ Asif vs. State, Criminal Appeal No. 3191 of 2023 decided on 13.10.2023, a case was registered in the year 2000 on the basis of information received by the Intelligence Officer of Narcotics Control Bureau. As per the information, a vehicle was intercepted on 28.03.2000 and four persons present in the vehicle were found in possession of commercial quantity i.e. 20 kilogram of heroin. After trial, all the said four persons were held guilty under the provisions of NDPS Act and they were sentenced to rigorous imprisonment for 10 years and to pay fine of Rs. 1 lakh each, in default to undergo further imprisonment of one year. The said conviction was confirmed by the Hon'ble High Court by dismissing the appeal preferred by all the four convicts holding that there was no error in the findings of the Trial Court. Aggrieved by his conviction and sentence, one of the convicts has preferred an appeal before the Hon'ble Apex Court.
SC No. 231/2018 Page 33 of 37State vs. Jameel Judgment dt. 05.06.2024
78. The Hon'ble Supreme Court taking note of provisions of Section 52A(2), (3) and (4) of the NDPS Act, held as under: -
12. A simple reading of the aforesaid provisions, as also stated earlier, reveals that when any contraband/narcotic substance is seized and forwarded to the police or to the officer so mentioned under Section 53, the officer so referred to in sub section (1) shall prepare its inventory with details and description of the seized substance like quality, quantity, mode of packing, numbering and identifying marks and then make an application to any Magistrate for the purposes of certifying its correctness and for allowing to draw representative samples of such substances in the presence of the Magistrate and to certify the correctness of the list of samples so drawn.
13. Notwithstanding the defence set up from the side of the respondent in the instant case, no evidence has been brought on record to the effect that the procedure prescribed under sub-sections (2), (3) and (4) of Section 52A of the NDPS Act was followed while making the seizure and drawing sample such as preparing the inventory and getting it certified by the Magistrate. No evidence has also been brought on record that the samples were drawn in the presence of the Magistrate and the list of the samples so drawn were certified by the Magistrate. The mere fact that the samples were drawn in the presence of a gazetted officer is not sufficient compliance of the mandate of sub-section (2) of Section 52A of the NDPS Act.
14. It is an admitted position on record that the samples from the seized substance were drawn by the police in the presence of the gazetted officer and not in the presence of the Magistrate. There is no material on record to SC No. 231/2018 Page 34 of 37 State vs. Jameel Judgment dt. 05.06.2024 prove that the Magistrate had certified the inventory of the substance seized or of the list of samples so drawn.
15. In Mohanlal's case, the apex court while dealing with Section 52A of the NDPS Act clearly laid down that it is manifest from the said provision that upon seizure of the contraband, it has to be forwarded either to the officer-in-charge of the nearest police station or to the officer empowered under Section 53 who is obliged to prepare an inventory of the seized contraband and then to make an application to the Magistrate for the purposes of getting its correctness certified. It has been further laid down that the samples drawn in the presence of the Magistrate and the list thereof on being certified alone would constitute primary evidence for the purposes of the trial.
16. In the absence of any material on record to establish that the samples of the seized contraband were drawn in the presence of the Magistrate and that the inventory of the seized contraband was duly certified by the Magistrate, it is apparent that the said seized contraband and the samples drawn therefrom would not be a valid piece of primary evidence in the trial. Once there is no primary evidence available, the trial as a whole stands vitiated.
79. In view of proposition of law laid down by the Hon'ble Apex Court in the aforesaid judgments, it is clear that if samples of the seized contraband are not drawn in the presence of the Magistrate and the inventory of the seized contraband is not duly certified by the Magistrate as required under Section 52A (2) of the NDPS Act, the whole trial against the accused stands vitiated.
SC No. 231/2018 Page 35 of 37State vs. Jameel Judgment dt. 05.06.2024
80. In the instant case, it has come on record from the testimonies of recovery witnesses that PW-7 ASI Mewa Ram, the 1st IO after seizure of contraband, drew samples on the spot. He after seizure of the contraband did not send it to the officer as required under Section 53 of the Act nor inventory of the seized contraband was prepared by the Officer as mentioned in sub section (1) of Section 52A nor the samples were drawn in the presence of the Magistrate nor the samples so drawn at the spot have been certified by the Magistrate to be correct. It is, thus, evident that the IO did not follow the procedure as laid down under Section 52A(2) of the NDPS Act while drawing the samples and there is violation of said mandatory provision. Hence, the accused is liable to be acquitted on this ground alone as has been done by the Hon'ble Apex Court in the judgments cited supra.
81. In view of the aforesaid discussions and the entirety of facts and circumstances of the case, I have no hesitation to hold that the prosecution has failed to prove its case against the accused beyond reasonable doubt and the accused deserves benefit of doubt. Even otherwise, there was no compliance of mandatory provisions under Sections 57 & 52 A(2) of the NDPS Act in the present case on the part of the prosecution and on this ground also, the accused is liable to be acquitted.
82. Accordingly, accused Jameel is acquitted of the offence punishable under Sections 21/61/85 of the NDPS SC No. 231/2018 Page 36 of 37 State vs. Jameel Judgment dt. 05.06.2024 Act, 1985. Bail bonds furnished by him under Section 439 Cr.P.C. stand cancelled and his surety is discharged. The bail bonds furnished by him under Section 437A Cr.P.C in the sum of Rs.15,000/- are accepted, which shall remain in force for a period of six months.
83. File be consigned to Record Room after necessary compliance.
Digitally
signed by
BALWANT BALWANT RAI
BANSAL
RAI Date:
BANSAL 2024.06.07
15:05:18
Announced in the open Court +0530
on 5th June, 2024 (Balwant Rai Bansal)
Special Judge (NDPS Act), Shahdara
Karkardooma Courts, Delhi
SC No. 231/2018 Page 37 of 37
State vs. Jameel Judgment dt. 05.06.2024