Delhi District Court
State vs Dilshad on 6 September, 2023
IN THE COURT OF SHRI ARUL VARMA, ASJ-04 AND
SPECIAL JUDGE (NDPS) SOUTH-EAST: SAKET COURTS: NEW
DELHI
CNR No. DLSE01-007946-2017
SC No 413 of 2017
FIR No. 98/2017
P.S. Crime Branch South-East
State
Vs.
Dilshad
S/o Sh. Ali Hasan
R/o 772, Nai Abadi Mabud Nagar'
Shahzamal Koil Aligarh,
Aligarh, Uttar Pradesh-202001
Saleem
S/o Sh. Sabbir
R/o House B-59, J.J Camp Tigri
New Delhi-110051
........ Accused
Date of Institution : 25.10.2017
Date of reserving the Judgment : 06.09.2023
Date of Judgment : 06.09.2023
JUDGMENT
FACTS IN BRIEF / CASE SET UP BY THE PROSECUTION
1. The facts as alleged by the prosecution, are hereby succinctly recapitulated. It was alleged that on 24.06.2017, at about 02:00 Am Near Sarita underpass on road leading towards Okhla Phase-II New Delhi, accused Dilshad and Saleem were found in possession of 240 grams and 260 grams of heroine respectively. Thereafter, the accused was arrested, and investigation was conducted. Whereafter, the present chargesheet FIR No 98/2017 State Vs.Dilshad & Anr. Page No. 1/65 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.09.06 17:28:41 -0300 came to be filed.
CHARGES FRAMED QUA THE ACCUSED
2. Charges under section 21 of NDPS Act, were framed qua the accused to which they pleaded not guilty and claimed trial.
EVIDENCE LED BY PROSECUTION
3. In the trial, the prosecution in support of its case, examined fifteen witnesses, the succinct testimonies whereof are as follows:
4. PW-1 HC Rajiv Kumar deposed that on 24.06.2017, he was working as HC and was on duty at PS Crime Branch at Saket as DO from 08:00 pm to 08:00 am. At around 06:50 am, Ct. Kuldeep produced one rukka who was sent by ASI Krishan Kumar for registration of the FIR. On the basis of said rukka, he registered the FIR through Computer Operator, copy of which was proved as Ex.PW1/A bearing his signatures at point A. He also made endorsement on the rukka Ex.PW1/B, bearing his signature at point-A. He had brought the original FIR register. On that day his duty was from 23.06.2017 at 08:00 pm to 08:00 am of 24.06.2017. On that day, he also recorded DD No. 2 photocopy of which was proved as Ex.PW1/C. After the registration of FIR, he recorded DD No. 4 photocopy of which was proved as Ex.PW1/D regarding the closure of the FIR. After the registration of FIR he handed over FIR and original rukka to Ct. Kuldeep. Further investigation of this case was handed over to ASI Pawan Kumar as per the directions of Senior officials. FIR No 98/2017 State Vs.Dilshad & Anr. Page No. 2/65
ARUL Digitally signed by ARUL VARMA VARMA 17:28:52 -0300 Date: 2023.09.06
5. PW-2 Inspector R Sriniwasan deposed that on 24.06.2017, he was posted as SHO PS Crime Branch. He had proved the original roznamcha register containing DD No.3 dated 24.06.20117 as Ex PW2/A.
6. PW-3 Sh. Shailendra Yadav, Senior Scientific Officer deposed that he was the FSL expert, who proved his report viz Ex.PW3/A whereby it was opined that the seized item contained Heroine.
7. PW-4 Inspector Manoj Kumar deposed that on 24.06.2017, he was posted as Inspector in Narcotics Cell, Crime Branch, Delhi. On the at about 12:15 am (midnight), ASI Krishan Kumar came in his office alongwith secret informer and informed about the secret information that a person namely Saleem resident of J. J. Camp Tighri, Delhi who was present residing somewhere in Mansoori, Gahaziabad and who was indulge in the supply of Heroin in retail as well wholesale in Delhi after bringing the same from Bareily (UP) and that on that day, Saleem alongwith his associate Dilshad had gone to Bareily in his car No. DL- 3CAG-4189 and would bring Heroin in huge quantity in the said car and would supply the same to someone in Tighri J. J. Camp and he would pass through kalandi Kunj to Okhla Phase-II in between 01:45 am to 02:15 am and would go to Tighri J. J. Camp to supply Heroin. He further informed that if a raid will be conducted on a way from Kalandi Kunj to Okhala Phase-II at underpass Sarita Vihar and they both could be apprehended alongwith the Heroin in their vehicle. He verified the FIR No 98/2017 State Vs.Dilshad & Anr. Page No. 3/65 Digitally signed by ARUL ARUL Date:
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contents of the secret information from the informer and after being satisfied he informed ACP N & CP Sh. Sanjeev Kumar Tyagi telephonically about the aforesaid secret information after knowing the facts, ACP directed to conduct a raid and to taken necessary action as per law. He directed ASI Krishan Kumar regarding the direction given by ACP N & CP. ASI Krishan Kumar lodged DD No. 2 at about 12:40 am in this regard and produce the copy of the same to him for proceeding u/s 42 of the NDPS Act. Carbon copy of the said DD lying in the Court file was mark-A bearing his signatures at point-A. As per his directions, ASI Krishan Kumar constituted a raiding party comprising of ASI Krishan Kumar, HC Jitender, Ct. Jitender and Ct. Kuldeep and they left taking alongwith them IO bag, field testing kit, electronic machine and spring weighing scale. Secret informer also left alongwith them. They left vide DD No. 3 at about he was in a Government Gypsy bearing Registration No. DL-1CJ-5545 driven by Ct. Pawan for the spot. In the morning of 24.06.2017 he forwarded the information given to him by DD No. 2 to the office of ACP for the compliance of Section 42 of the NDPS Act. The raid was successful and further investigation of the case was marked to ASI Pawan Kumar of Narcotics Cell. On 24.06.2017 at about 02:20 pm, ASI Pawan Kumar, ASI Krishan Kumar alongwith the members of the raiding party came to his office. ASI Pawan Kumar produced two accused persons of this case before him namely Saleem and Dilshad i.e. FIR No 98/2017 State Vs.Dilshad & Anr. Page No. 4/65 Digitally signed by ARUL ARUL VARMA Date:
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He interrogated both the accused persons and found the recovery of 260 grams of Heroin from accused Saleem and 240 grams of Heroin from accused Dilshad and their arrest justified in this case. Thereafter, ASI Pawan Kumar recorded his statement in between 02:25 pm to 02:45 pm. Thereafter, ASI Krishan Kumar produced a report u/s 57 of the NDPS Act regarding the seizure of Heroin from the accused persons and ASI Pawan Kumar produced a report u/s 57 of the NDPS Act regarding the arrest of both the accused persons which he had gone through and then signed on them at point-A. The said report was proved as Ex.PW4/A and Ex.PW4/B. He forwarded the said reports to ACP/ N & CP. Both the accused persons were produced in the Court by him alongwith ASI Pawan on the same day. On his request accused Saleem was remanded to three days PC for the search of the source of the contraband. Thereafter, the accused was handed over in the custody of ASI Pawan for further investigation. Accused Dilshad was remanded to J/C.
8. PW-5 ASI Jag Narain deposed that on 24.06.2017, he was posted as ASI and was working as MHC(M) in PS Crime Branch, New Delhi. On that day, on being called by Inspector R. Shri Niwasan, SHO, PS Crime Branch reached in his office alongwith Register No. 19. In the office SHO handed over to him 6 sealed pullandas No. A1, A2, B1, B2, A & B alongwith form FSL all having seals of 7B PS/NB DELHI and RSS alongwith two carbon copies of seizure memos in this case regarding FIR No 98/2017 State Vs.Dilshad & Anr. Page No. 5/65 Digitally signed by ARUL ARUL VARMA VARMA Date:
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which an entry at Sl. No. 2611 in Register No. 19 was made by him Thereafter SHO had signed in Register No. 19 against the said entry. Photocopy of the said entry was proved as Ex.PW5/A. The said entry bore the signature of SHO at point-A and his signatures at point-B. Thereafter, on the same day ASI Pawan Kumar had deposited with him one Baleno Car No. DL-3CAG-4189 alongwith key and the belonging of personal search items of accused Saleem and Dilshad vide personal search memos regarding which an entry at Sl. No. 2612 was made by him in register no. 19 photocopy of which was proved as Ex.PW5/B. On 27.06.2017, he had sent the two cloth sealed parcels marked A-1 & B-1 alongwith FSL Form and other documents to FSL Rohini through Constable Sunil, as per the directions of the SHO vide RC no. 181/21/17 photocopy of which was proved as Ex.PW5/C bearing his signatures at point-A. On return, Ct. Sunil produced acknowledgement of case acceptance to him from FSL, Rohini which he pasted in Register No. 19 photocopy of which was proved as Ex.PW5/D. He had made an entry in this regard in register No. 19 from point-A to A in entry Ex.PW5/A . On 14.09.2017, the FSL Result in this case in two sealed parcels alongwith sealed pullandas sealed with the seal of FSL were received in the Malkhana through Ct. Pankaj. The sealed parcels were deposited in the Malkhana and the FSL result was handed over to IO and an entry in this regard from point-B to B was made by him in Register No. 19 against FIR No 98/2017 State Vs.Dilshad & Anr. Page No. 6/65 Digitally signed by ARUL ARUL VARMA Date:
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entry Ex.PW5/A . The case property remained intact during the period it remained in his possession and was not tampered with in any manner.
9. PW-6 Sh. R.K. Pahwa, Assistant Section Officer, deposed that he had brought certified copy of vehicle particular pertaining to vehicle no.DL3CAG-4189 and as per record, the present owner of the said vehicle is Salim, S/o Sh. Sabbir from 07.02.2017. Certified copy of report of the aforesaid vehicle was proved as Ex.PW6/A. He had also brought original record pertaining to aforesaid vehicle and as per record first owner of the aforesaid vehicle was Karma Leasing and Finance Limited from 04.07.2005 to 24.02.2015 and thereafter ownership of the vehicle was transferred in the name of Sh. Mohar Singh from 25.02.2015 to 06.02.2017. Thereafter ownership of the vehicle was again transferred in the name of Salim from 07.02.2017 till date. Photocopy of the aforesaid record pertaining to transfer of the ownership of the vehicle from first owner Karma Leasing Finance Limited to present owner Salim were proved as Ex.PW6/B.
10.PW-7 HC Kuldeep Singh deposed that on 24.06.2017, he was posted at Narcotics Cell, Crime Branch, New Delhi as a constable. On that day, at around 12:45 AM (in night), ASI Krishan Kumar called HC Kuldeep Singh HC Jitender, Ct. Jitender and informed them about the secret information that one person in the name of Salim who used to supply heroine after bringing the same from Bareli, U.P., and he alongwith one FIR No 98/2017 State Vs.Dilshad & Anr. Page No. 7/65 Digitally signed by ARUL ARUL Date:
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Dilshad will come in his car bearing no.DL3CAG-4189 to Delhi through Kalindi Kunj and will supply the heroine in Tigri, J.J. Camp, Okhla Phase II, New Delhi. ASI Krishan Kumar further told them that if raid be conducted by putting barricade on the way from Sarita Vihar, underpass to Okhla Phase II, the aforesaid persons with heroine and his car can be apprehended. Thereafter, ASI Krishan Kumar also conveyed the said information to senior officer Inspector Manoj Kumar who directed him to constitute a raiding party and proceed further. Thereafter, ASI Krishan Kumar constituted a raiding party consisting of him, HC Jitender, Ct. Jitender and IO ASI Krishan Kumar took IO bag, field testing kit, electronic weighing machine, electronic weighing scale and thereafter they alongwith secret informer went to Sarita Vihar, Underpass in government gypsy bearing registration no.DL1CJ-5545 with driver / Ct. Pawan and mentioned DD No. 3 for the said departure. They reached at Sarita Vihar, under pass at around 01:30 AM and on the way at Shanti Van red light, Rajghat, Ashram and also at the spot, IO requested 3-4 passerby to join the investigation but none of them agreed and left the spot without disclosing their names and addresses. Thereafter, at the spot i.e., Sarita Vihar, underpass, the aforesaid Government gypsy was parked at the distance of 50 meters from the entry of the underpass and driver / Ct. Pawan Kumar was left on the said gypsy. Thereafter, barricades was putting at the entry point of Sarita Vihar underpass and they took position FIR No 98/2017 State Vs.Dilshad & Anr. Page No. 8/65 Digitally signed by ARUL ARUL VARMA Date:
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there. IO and secret informer were standing ahead of the barricade and they were in civil dress. At around 01:55 AM, one silver colour Baleno Maruti Car bearing no.DL3CAG4189 was found from the side of Kalindi Kunj. Secret informer saw the said vehicle and told to IO ASI Krishan Kumar that the driver of the said vehicle was Salim and another person sitting besides of driver seat was Dilshad. After pointing out towards them at the distance of around 10 meters, secret informer left the spot. Thereafter, the aforesaid vehicle was stopped with the help of raiding party. Both persons sitting in the said vehicle was got down from the vehicle and IO gave introduction of the raiding party to both aforesaid persons and thereafter, their names were revealed as Salim and Dilshad. Thereafter, IO informed both of accused persons that he had information that both of you came from Bareli, U.P with huge quantity of heroine to supply the same to someone in Delhi and for which he will have to search them and their vehicle. IO further intimated both the accused persons that prior to search themselves and their vehicle they have right to search the raiding party and police vehicle by themselves and they had right to search themselves before the Magistrate or gazetted officer and further IO explained the meaning of Magistrate or Gazetted Officer. Thereafter, IO prepared a notice u/s 50 NDPS Act and served to both the accused persons which was proved as Ex.PW7/A and Ex.PW7/B bore his signature at point A. Upon which, both of the accused persons refused to FIR No 98/2017 State Vs.Dilshad & Anr. Page No. 9/65 Digitally signed by ARUL ARUL Date:
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search the member of raiding party and police vehicle and also refused to search themselves before Gazetted officer or Magistrate and both of accused persons was willing to search themselves and their vehicle by the raiding party and endorse the same on respective notice u/s 50 NDPS Act at Ex.PW7/A in his own handwriting which was proved as Ex.PW7/C and notice u/s 50 NDPS Act in the handwriting of IO on the dictation given by accused Dilshad as he stated that he was not able to write down and little bit to know only his signature which was proved as Ex.PW7/D, both bore his signatures at point A. Thereafter, IO requested 4-5 passerby to join the investigation for searching the accused persons and their vehicle, but none of them agreed and left the spot without disclosing their names and address. Upon cursory search of accused Salim, one transparent polythene bag was recovered from right side pocket of his wearing pant, the said polythene was opened and found containing one pink colour Potli which was opened and found containing one transparent polythene which was found containing some powder which was checked with the help of field testing kit and it was revealed as heroine product. Thereafter, the said heroine was measured with the help of electronic weighing machine and it was found of 260 gms. Thereafter, IO ASI Krishan Kumar took two samples each of 5 gms from the aforesaid heroine product and put into the same in two small transparent polythene and wrapped with white cloth pullanda and sealed with the seal of FIR No 98/2017 State Vs.Dilshad & Anr. Page No. 10/65 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.09.06 17:30:15 -0300 "7BPSNBDELHI" and remaining aforesaid heroine product was also wrapped with the white cloth pullanda and seal with the seal of "7BPSNBDELHI" and put serial no. A1, A2 and A respectively vide seizure memo Ex.PW7/A bearing his signature at point A and FSL form was also filled up and put the seal of "7BPSNBDELHI" thereon. Upon cursory search of accused Dilshad, one transparent polythene bag was recovered from right side pocket of wearing Kurta, the said polythene was opened and found containing one pink colour Potli which was opened and found containing one transparent polythene which was found containing some powder which was checked with the help of field testing kit and it was revealed as heroine product. Thereafter, the said heroine was measured with the help of electronic weighing machine and it was found of 240 gms. Thereafter, IO ASI Krishan Kumar took two samples each of 5 gms from the aforesaid heroine product and put into the same in two small transparent polythene and wrapped with white cloth pullanda and sealed with the seal of "7BPSNBDELHI" and remaining aforesaid heroine product was also wrapped with the white cloth pullanda and seal with the seal of "7BPSNBDELHI" and put serial no. B1, B2 and B respectively vide seizure memo Ex.PW7/F bearing his signature at point A and FSL form was also filled up and put the seal of "7BPSNBDELHI" thereon. Seal after use was handed over to HC Jitender. Thereafter, IO prepared rukka and handed over the same to him for registration of FIR FIR No 98/2017 State Vs.Dilshad & Anr. Page No. 11/65 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.09.06 17:30:25 -0300 and also he handed over the aforesaid six pullandas alongwith two FSL form and two carbon copy of seizure memo of heroine for further handing over the same to SHO concerned and SHO further sealed the pulanda with the seal of "RSS" and FSL Form was also sealed with seal of "RSS". Rukka was handed over to concerned duty officer and aforesaid pullanda with FSL form and carbon copy of the same were handed over to SHO concerned. SHO concerned had prepared a report u/s 55 NDPS Act and same was given to Malkhana Incharge alongwith aforesaid pullanda and concerned documents. MHCM recorded the same seized material by entering into register no. 19 and concerned SHO signed the same. However, after registration of FIR, FIR number was mentioned before sending the same to MHCM. Thereafter, he came back with original rukka and copy of FIR and handed over the same to another IO ASI Pawan Kumar at Narcotic Cell as further investigation of the present case was marked to him. Thereafter, his statement u/s 161 Cr.P.C was recorded by IO ASI Pawan Kumar.
11.PW-8 Ct. Sunil deposed that on 27.06.2017 he was posted as constable at above stated office. On that day, on the direction of IO, he went to PS Crime Branch at Malviya Nagar and from the malkhana of PS Crime Branch obtained two sealed pullandas of present case marked as A-1 and B-1 and each duly sealed with seal of '7BPSNBDELHI' and 'RSS' from MHC (M) HC Jag Narain alongwith two FSL forms and copy of seizure FIR No 98/2017 State Vs.Dilshad & Anr. Page No. 12/65 Digitally signed by ARUL ARUL Date:
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memo and took them to FSL Rohini vide RC no. 181/21 Dt. 27.06.2017. He deposited the abovestated case property in FSL Rohini and obtained acknowledgment. He returned to PS Crime Branch and handed over copy of RC and original acknowledgment receipt. Thereafter, he returned to his office and handed over to IO copy of RC and acknowledgment. IO recorded his statement to the above said effect. So long as case property remained in his possession same was not tampered with in any manner.
12.PW-9 ASI/Tech Devender Kumar deposed that on 19.09.2017 on the request of ASI Pawan Kumar of Narcotic Cell, Crime Branch, Pushp Vihar, New Delhi, he inspected the vehicle no. DL3C AG 4189 Maruti Baleno car in his office at Pushp Vihar. During the inspection the battery was found low and the car could not be start. He did not find any other deficiency and the said car was in working condition but at that time due to the battery deficiency it was not fit for road test. He prepared his report below the request of IO. His inspection report was proved as Ex. PW- 9/A.
13.PW-10 ASI Krishan Kumar deposed that on 24.06.2017 he was posted in the Narcotic Cell at Kotwali. On that day i.e. in the intervening night of 23/24.06.2017 at about 12 midnight the secret informer came to his office and informed that one Salim resident of J.J. Camp, Tigri but during these days he was residing in the area of Masuri, Ghaziabad and he used to supply heroine in retail and in huge quantity in the area of Delhi. He FIR No 98/2017 State Vs.Dilshad & Anr. Page No. 13/65 Digitally signed by ARUL ARUL VARMA Date:
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also told that the said Salim used to bring the heroine from Bareily, UP. He further told him that on that day also the said Salim alongwith his one associate namely Dilshad would bring heroine from Bareily in a car no. DL3C AG 4189 via Sarita Vihar and deliver the same in the area of Tigri Camp and they would come between 1.45 AM to 2.15 AM. They could be apprehended if raid conducted. After having satisfy with the information at 12.15 AM, he produced the informer before the Inspector Manoj Kumar and apprised him about the information. The Inspector also made enquiry from the secret informer. After having satisfied with the enquiry made by him, the Inspector informed the ACP Sanjeev Kumar Tyagi on his telephone. The ACP directed the Inspector to conduct raid and proceed accordingly. Due to paucity of time, he could not obtain the search warrant for the vehicle about which the information was received. I told this fact to Inspector Manoj Kumar. Thereafter, at about 12.40 AM regarding the secret information he recorded DD No. 2 vide carbon Ex. PW-10/A bore his signature at point B. The copy of the said DD was given to Inspector Manoj Kumar. He then constituted a raiding party comprising PW-10 HC Jitender, Ct. Kuldeep and Ct. Jitender. He also collected the field testing kit, IO bag and electronic weighing machine from the office and then proceeded for the disclosed place alongwith raiding party and secret informer. They proceeded from the office at about 1 AM by a government gypsy bearing no. DL1C J 5545. He FIR No 98/2017 State Vs.Dilshad & Anr. Page No. 14/65 Digitally signed by ARUL ARUL Date:
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recorded DD No. 3 in this regard before leaving the office. The said attested DD was proved as Ex. PW-10/B bore his signature at point A. At about 1.30 AM they reached the spot i.e. near Sarita Vihar underpass on the road which leads towards Okhla Phase-II from the side of Kalindi Kunj via Shanti Van, Ashram Chowk and Apollo Hospital. On the way i.e. at the traffic light of Shanti Van and Ashram Chowk, he asked several public persons to join the raiding party but none could prepare to join the raiding party and went away after giving reasonable excuses and without telling their names and number. At the spot he also asked four persons to join the raiding party but they also did not join and went away after disclosing their excuses. He asked the driver Ct. Pawan to park the gypsy in the underpass at the distance of about 50 meter from the plane road. They put the barricades on the road at the entry point of underpass, which was leads towards Okhla Phase-II. He alongwith secret informer took position at some distance from the barricades towards Kalindi Kunj. At about 1.40 AM we started the checking of vehicle. During the vehicle at about 1.55 AM one Maruti Baleno car bearing registration no. DL3C AG 4189 silver colour came then the secret informer pointed out the car from the distance of about 10 meter. The informer pointed out the driver of the car as Salim and the person who was sitting in the side of driver was Dilshad. Thereafter, the secret informer went away from there towards Kalindi Kunj. He with the help of other member of the team got stopped FIR No 98/2017 State Vs.Dilshad & Anr. Page No. 15/65 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.09.06 17:31:02 -0300 the aforesaid car and both the accused persons were apprehended at about 2.00 AM. On enquiry when accused told his name as Salim who was driving the vehicle and the another person told his name as Dilshad. He called the driver of gypsy with gypsy at the spot. He apprised both the accused persons about the secret information that they were bringing heroine in order to supply the same in Delhi. He asked the accused persons that their search was to be conducted but they can took the search of police party and the gypsy if they so desired. Both the accused persons denied for the same. He also apprised both the accused persons about their legal rights that their search could be conducted in the presence of Magistrate or a Gazetted Officer if they so desired then the arrangement could be done either by calling such officer at the spot or by taking and producing them before the such officer. Both the accused persons had refused for the same. Thereafter, he gave a written notice in this regard u/s 50 NDPS Act in original. The carbon copy of notice in the name of Salim was proved as Ex. PW-7/A bore his signature B. Accused Salim had written his reply already Ex. PW-7/C in his own handwriting and he refused to avail his legal right. The reply bears his signature at point X and his signature at point A. Thereafter he gave a written notice in this regard u/s 50 NDPS Act in original to Dilshad. The carbon copy of notice in the name of Dilshad was proved as Ex. PW-7/B bore his signature B. Since accused Dilshad was illiterate and he told that he could put his FIR No 98/2017 State Vs.Dilshad & Anr. Page No. 16/65 Digitally signed by ARUL ARUL VARMA Date:
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signature only. However, at the instance of accused Dilshad he had written down his reply already Ex. PW-7/D which bore his signature at point A and his signature at point B. He refused to avail his legal rights.
Firstly he conducted the cursory search of accused Salim and found one transparent polythene from the right pocket of his wearing pant. The said polythene was tied with a rubber band and it was found containing one cloth parcel of pink colour. The said parcel was taken out from the polythene which was further found containing transparent polythene and tied with rubber band. The said polythene was found containing some substance of light brown colour. He took out a small quantity from the said substance and tested / checked it on the field testing kit and it was revealed to be heroine. the said substance. The sample were taken in transparent polythene with rubber band and converted into two separate cloth parcels and sealed them with his seal bearing impression 7BPSNBDELHI. Mark A1 and A2 were given to the sample parcels. The remaining substance was also converted into cloth parcel with the polythene and pink colour cloth with rubber band and sealed it with the same seal. Mark A was given to the said parcel. He then filled in the FSL form in this regard and affixed the same seal upon it. He then seized the said parcels with FSL form through seizure memo already Ex. PW-7/E bore his signature at point B. The seal was handed over to HC Jitender after use. Thereafter, he conducted the cursory search of accused Dilshad FIR No 98/2017 State Vs.Dilshad & Anr. Page No. 17/65 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.09.06 17:31:26 -0300 and found one transparent polythene from the right pocket of his wearing Kurta. The said polythene was tied with a rubber band and it was found containing one cloth parcel of pink colour. The said parcel was taken out from the polythene which was further found containing transparent polythene and tied with rubber band. The said polythene was found containing some substance of light brown colour. He took out a small quantity from the said substance and tested / checked it on the field testing kit and it was revealed to be heroine. He then weighed the substance/heroin with one polythene and it was found to be 240 grams. He separated two samples of five grams each from the said substance. The sample were taken in transparent polythene with rubber band and converted into two separate cloth parcels. He then took over the seal from HC Jitender and sealed the sample parcels with his seal bearing impression 7BPSNBDELHI. Mark B1 and B2 were given to the sample parcels. The remaining substance was also converted into cloth parcel with the polythene and pink colour cloth with rubber band and sealed it with the same seal. Mark B was given to the said parcel. He then filled in the FSL form in this regard and affixed the same seal upon it. The seal after use was again handed over to HC Jitender. It was further deposed that he then seized the said parcels with FSL form through seizure memo already Ex. PW-7/F bore his signature at point B. Thereafter, he prepared rukka Ex. PW-10/C bore his signature at point A. He handed over the FIR No 98/2017 State Vs.Dilshad & Anr. Page No. 18/65 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.09.06 17:31:35 -0300 original rukka with copies of seizure memos and all the six parcels with FSL forms to Ct. Kuldeep and directed him to handover the rukka to Duty Officer at PS Crime Branch for registration of FIR and remaining items were to be handed over to the SHO, Crime Branch. Ct. Kuldeep took the said items and went to PS with gypsy. He left the spot at around 6.00 AM. He remained at the spot alongwith accused persons and HC Jitender. At about 10.15 AM ASI Pawan came at the spot with the government gypsy which was being driven by Ct. Pawan. The investigation after registration of the FIR was assigned to said ASI Pawan, therefore, he handed over the documents alongwith the accused persons to the IO and apprised him about the proceedings conducted by me. The IO at his instance inspected the place of recovery and prepared the site plan thereof between 10.15 AM to 10.30 AM. The said plan was proved as Ex. PW-10/D bore his signature at point A. Thereafter IO recorded the statement of HC Jitender till 12 noon. After that he interrogated both the accused persons and arrested them in this case vide arrest memo of accused Salim Ex. PW-10/E bore his signature at point A. He was arrested at 12.15 PM and at about 1.15 PM accused Dilshad was arrested vide his arrest memo Ex. PW-10/F bore his signature at point A. Personal search of accused Salim was conducted by the IO and recovered one notice in original u/s 50 NDPS Act one driving licence and Rs. 400/- in cash from the possession of accused Salim. The personal FIR No 98/2017 State Vs.Dilshad & Anr. Page No. 19/65 Digitally signed by ARUL ARUL VARMA VARMA Date:
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search memo of accused Salim was proved as Ex. PW-10/G bore his signature at point A. Personal search of accused Dilshad was conducted by the IO and recovered one notice in original u/s 50 NDPS Act and Rs. 120/- in cash from the possession of accused Dilshad. The personal search memo of accused Salim was proved as Ex. PW-10/H bore his signature at point A. Both the accused persons were interrogated and recorded their disclosure statements vide Mark A1 of Salim and Mark A2 of Dilshad. Both bore his signatures at point A. The IO seized the aforesaid Baleno car of accused through seizure memo Ex. PW-10/J bore his signature at point A. He may state that before sending the rukka he made the search of aforesaid car and nothing incriminating was found in the car. He prepared a memo in this regard Ex. PW-10/K. He also prepared the taking over memo of the seal which was proved as Ex. PW- 10/L. At about 1.30 PM they left the spot finally and went to their office. He then prepared report u/s 57 NDPS Act which was already Ex. PW- 4/A bore his signature at point A. The said report was forwarded by the inspector to the ACP.
14.PW-11ASI Jitender deposed that on 24.06.2017 he was posted as Head Constable at Narcotic Cell, Kotwali, Crime Branch, New Delhi. On that day, ASI Krishan Kumar at about 01:00 AM in the night, told him, Ct. Jitender and Ct. Kuldeep that he had received a secret information that one person namely Saleem, who used to supply heroine in Delhi, would FIR No 98/2017 State Vs.Dilshad & Anr. Page No. 20/65 Digitally signed by ARUL ARUL VARMA Date:
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come alongwith Dilshad by a car bearing no. DL 3CA G4189, Maruti Baleno of silver colour, to Delhi via Kalindi Kunj and will supply heroine in the area of Okhla Phase-II. ASI Krishan had also conveyed this information to Insp. Manoj Kumar and who directed him to constitute a raiding party. ASI Krishan had constituted a raiding party comprising PW-11 ASI Jitender, Ct. Jitender and Ct. Kuldeep. ASI Krishan Kumar collected IO bag, field testing kit and electronic weighing machine from the office and then they proceeded from the office alongwith a secret informer in a Government vehicle bearing Registration No. DL 1CJ 5545, which was being driven by Ct. Pawan. They reached at about 01:30 AM at under pass Sarita Vihar via Shantivan Traffic Light Ashram and Apollo Hospital. On the way, ASI Krishan Kumar had asked several public persons to join the raiding party but none could prepared after disclosing their reasonable excuses. The government vehicle was parked about 50 mt away from the spot. The IO ASI Krishan Kumar had asked 3-4 public persons to join the raiding party at the spot but none again none public persons would prepare to become witness. At about 01:40 AM, they put barricades on the road which was coming from Kalindi Kunj side leading towards Okhla Phase-II. They took their position near the entry point of the under pass. IO alongwith the secret informer were standing ahead from the barricades. At about 02:00 AM, the aforesaid Baleno Car bearing NO. DL 3CAG 4189 came from Kalindi Kunj, the secret FIR No 98/2017 State Vs.Dilshad & Anr. Page No. 21/65 Digitally signed by ARUL ARUL Date:
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informer pointed out the said vehicle to the IO and told that the driver of the said vehicle was Saleem, thereafter the secret informer went away from there. Thereafter, the aforesaid vehicle was got stopped. The driver and one another person was sitting aside of the driver were got down from the car. The name of the driver was revealed as Saleem and the name of another person was revealed as Dilshad. The IO introduced himself to the said accused persons and apprised them about the secret information that they both were coming from Bareily, U.P. with heroine to supply the same somewhere in Delhi. The IO further told to the accused persons that their search had to be taken but before that they could conduct the search of the raiding party and the government vehicle which was called by the IO at the spot. The accused persons refused to conduct their search and the vehicle. The IO further apprised the accused persons about their legal right that their search could be conducted in the presence of Gazetted Officer or a Magistrate, if they so desire. The IO ASI Krishan Kumar had prepare two notices u/s 50 NDPS Act regarding the legal right of accused persons for their arrest and served upon them with the original of the same. The carbon copy of the notice, in the name of Saleem was proved as Ex. PW7/A, which bore his signature at Point D. Accused Saleem had written his reply below the carbon copy of notice which was proved as Ex. PW7/C, bore his signature at Point D. The carbon copy of the notice, in the name of Dilshad was proved as Ex. FIR No 98/2017 State Vs.Dilshad & Anr. Page No. 22/65
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2023.09.06 17:32:10 -0300 PW7/B. Since accused Dilshad was illiterate and thus on his instance, the IO written down his reply on his behalf below the carbon copy of notice, which was proved as Ex. PW7/D, which bore his signature at Point D. Thereafter, IO conducted the cursory search of accused Saleem and recovered one transparent polythene bag from the right pocket of his wearing pant. On opening the said polythene, it was found containing one pink colour potli which was further found containing one transparent polythene and tied with rubber band and the said polythene was found containing some powdery substance. The IO took a very small quantity of the said substance and tested it on the field testing kit and it was revealed to be 'smack/heroine'. The said substance was weighed on the electronic weighing machine and it was found 260 gm in total. The IO took out two samples of 5 gram each from the said substance. Both the samples were kept in two separate transparent polythene and converted them into cloth parcels and Mark A-1 and A-2 given to them. The remaining substance was kept in the same polythene with the other polythene and it was also converted into cloth parcel which was given as Mark A. All three parcels were sealed with the seal of 7BPSNB Delhi. The FSL form was also filled in and the same seal was affixed on it. The parcels and the FSL Form were seized through seizure memo Ex. PW7/E, which bore his signature at Point D. Thereafter, IO conducted the cursory search of accused Dilshad and recovered one transparent polythene from the pocket FIR No 98/2017 State Vs.Dilshad & Anr. Page No. 23/65 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.09.06 17:32:20 -0300 of his wearing kurta. On opening the said polythene, it was found containing one potli which was found containing some powdery substance. The IO took a very small quantity of the said substance and tested it on the field testing kit and it was revealed to be 'smack/heroine'. The said substance was weighed on the electronic weighing machine and it was found 240 gm in total. The IO took out two samples of 5 gram each from the said substance. Both the samples were kept in two separate transparent polythene and converted them into cloth parcels and Mark B- 1 and B-2 given to them. The remaining substance was kept in the same polythene with the other polythene and it was also converted into cloth parcel which was given as Mark B. All three parcels were sealed with the seal of 7BPSNB Delhi. The FSL form was also filled in and the same seal was affixed on it. The parcels and the FSL Form were seized through seizure memo Ex. PW7/F, which bore his signature at Point D. The seal after use handed over to him. Thereafter, ASI Krishan had prepared rukka and handed over the same to Ct. Kuldeep alongwith the copies of seizure memo, six parcels and FSL forms and directed him to hand over the rukka to Duty Officer and remaining items were given to the SHO, Crime. Accordingly, Ct. Kuldeep took the aforesaid items with the government gypsy alongwith the driver Ct. Pawan. He left the spot at about 06:00 AM. At about 10:15 AM, ASI Pawan reached the spot alongwith the Ct. Pawan in the government gypsy as the investigation FIR No 98/2017 State Vs.Dilshad & Anr. Page No. 24/65 Digitally signed by ARUL ARUL Date:
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was assigned to him after registration of the FIR. At the instance of ASI Krishan, the IO prepared the site-plan of the place of recovery. ASI Krishan Kumar handed over both the accused persons alongwith the documents prepared by him to the IO and apprised him about the proceedings conducted by him. The IO recorded his statement till 12:00 noon. Thereafter, the IO arrested the accused Saleem at about 12:15 PM in this case vide his arrest memo Ex. PW10/E, which bore his signature at Point B. The personal search of accused Saleem was conducted and recovered one original notice u/s 50 NDPS Act, driving license and cash of Rs. 400/-. The memo in this regard was prepared which was proved as Ex. PW10/G, which bore signature at Point B. The IO interrogated the accused Saleem which was Mark A-1. Nothing incriminating could be recovered or discovered in pursuance of his disclosure statement. Thereafter, the IO arrested the accused Dilshad at about 01:15 PM in this case vide his arrest memo Ex. PW10/F, which bore his signature at Point B. The personal search of accused Dilshad was conducted and recovered one original notice u/s 50 NDPS Act and cash of Rs. 120/-. The memo in this regard was prepared which was proved as Ex. PW10/H, which bore signature at Point B. The IO interrogated the accused Dilshad which was Mark A-2. Nothing incriminating could be recovered or discovered in pursuance of his disclosure statement. Thereafter, they left the spot and went to their office. The IO produced both the accused persons before FIR No 98/2017 State Vs.Dilshad & Anr. Page No. 25/65 Digitally signed by ARUL ARUL VARMA Date:
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Insp. Manoj Kumar, who also made inquiry from both the accused persons and found their arrest to be satisfied. The IO also recorded his one supplementary statement in this regard.
15. PW-12 ASI Pawan Kumar depose on 24.06.2017, he was posted as ASI in the Narcotic Cell, Crime Branch, Daryaganj, Delhi. On that day at about 09:15 AM, Ct. Kuldeep handed over him the copy of the FIR in this case alongwith the original rukka in his office. As the investigation after registration of FIR, the investigation was assigned to him. He perused the rukka. Leaving behind Ct. Kuldeep in office, he alongwith Ct. Pawan went to the place of recovery by a government vehicle at Sarita Vihar under pass. They left the office at about 09:30 AM and reached at the spot at about 10:15 AM. At the spot, ASI Krishan, HC Jitender, Ct. Jitender, two accused persons namely Saleem and Dilshad and one car found. ASI Krishan apprised him about the proceedings of this case which was conducted by him and handed over the documents prepared by him alongwith two accused persons and whose names revealed after inquiry as Saleem and Dilshad and one car. He prepared the site-plan of the place of recovery on the pointing of ASI Krishan Kumar, the same was proved as Ex. PW10/D, which bore his signature at Point X. Thereafter, he recorded the statement of HC Jitender u/s 161 Cr.P.C from 10:30 AM to 12:00 noon. Then at about 12:15 PM, he arrested the accused Saleem after made inquiry from him. His arrest memo Ex. PW10/E, which bore his signature FIR No 98/2017 State Vs.Dilshad & Anr. Page No. 26/65 Digitally signed by ARUL ARUL Date:
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at Point X. He further deposed that he conducted the personal search of accused Saleem and recovered one notice u/s 50 NDPS Act in original, one driving license in the name of accused Saleem and Rs. 400/- cash. He prepared the personal search memo Ex. PW10/G. Thereafter, he interrogated the accused Saleem and recorded his disclosure statement Mark A-1, bearing his signature at Point X. Nothing incriminating could be recovered or discovered in pursuance of his disclosure statement. Thereafter at about 01:15 PM, he arrested the accused Dilshad after made inquiry from him. His arrest memo Ex. PW10/F. He conducted the personal search of accused Dilshad and recovered one notice u/s 50 NDPS Act in original, and Rs. 120/- cash. He prepared the personal search memo Ex. PW10/H, which bore his signature at Point X. Thereafter, he interrogated the accused Dilshad and recorded his disclosure statement Mark A-2, bore his signature at Point X. Nothing incriminating could be recovered or discovered in pursuance of his disclosure statement. He further deposed that when he alongwith Ct. Pawan left the office, he had recorded DD No. 9 regarding their departure. The attested copy of which was proved as Ex. PW12/A, bore his signature at Point X. Thereafter, he seized the Baleno Car No. DL3C AG 4189, which was used by the accused persons. The seizure memo of the Car was proved as Ex. PW10/J, which bore his signature at Point X. Thereafter, they all left the spot and reached their office at Narcotic Cell, Crime Branch, Daryaganj, Delhi at FIR No 98/2017 State Vs.Dilshad & Anr. Page No. 27/65 Digitally signed by ARUL ARUL Date:
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about 02:15 and in this regard, he had recorded DD No. 12 and the attested copy of which was proved as Ex. PW12/B, which bore his signature at Point X. He produced both the accused persons before the Insp. Manoj Kumar, who made inquiry from them and found their arrest to be justified. He then recorded the statement of Insp. Manoj u/s 161 Cr.P.C. He furnished the information to the relatives of the accused persons regarding their arrest. Thereafter, he prepared the report u/s 57 NDPS Act, regarding the proceedings conducted by him the carbon copy of which was proved as Ex. PW4/B, which bore his signature at Point X. The same was sent to the ACP through the Inspector. The accused persons got medically examined at LNJP Hospital. Thereafter, both the accused persons were present before the Court and obtained the three days Police remand of accused Saleem whereas accused Dilshad was sent to Judicial Custody. On 26.06.2017 after obtaining the permission of senior officers, he took the accused Saleem to Aula District, Bareily in order to search the source of contraband substance, a person namely Moriya. At the instance of accused, they made efforts to search and apprehend the said Moriya but he could not be found. The sample was sent to FSL for analysis and the result thereof was obtained later on which was proved as Ex. PW3/A. He recorded the statement of witnesses and prepared the charge-sheet and then put in Court.
16.PW-13 ASI Mahesh Chand deposed that on 03.02.2017, he was posted FIR No 98/2017 State Vs.Dilshad & Anr. Page No. 28/65 Digitally signed by ARUL ARUL Date:
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in Narcotics Cell at Dariyaganj Kotwali and working as MHC(M). On that day, he had issued the official seal, bearing impression 7-B PS/NB Delhi to ASI Krishan Kumar. On 25.05.2018, the said seal was deposited with the malkhana by ASI Krishan Kumar. The entry regarding the issuing and depositing the seal was made in the relevant register at Serial No. 13. The photocopy of the relevant page, containing the said entry number 13, is taken on record, the same was proved as Ex. PW13/A. On 24.06.2017 at about 12:50 AM, he had issued the electronic weighing machine to ASI Krishan Kumar No. 396 CR. On the same day i.e. on 24.06.2017 at about 06:00 PM, he deposited the same weighing machine with the malkhana. The entry regarding the issuing and depositing the weighing machine was made in the relevant register at Serial No. 22 dated 24.06.2017.
17.PW-14 Ct. Pawan deposed that he had been working in the said office for the last six months. He deposed that he had brought the summon record i.e. DD No. 02 dated 24.06.2017 recorded at Narcotics Cell, Crime Branch, South-East District, Delhi. As per record, the said DD was received in the ACP office on 24.06.2017. The same was proved as Ex. PW14/A. At that time, Sh. Sanjeev Kumar Tyagi was the ACP but he was not working with him at that time. The said DD was received in the office vide entry no. 1318 dated 24.06.2017 in the diary register. The copy of the relevant entry was proved as Ex. PW14/B. As per record, on FIR No 98/2017 State Vs.Dilshad & Anr. Page No. 29/65 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.09.06 17:33:16 -0300 24.06.2017, one report u/s 57 NDPS Act, prepared by ASI Krishan Kumar, Narcotics Cell Crime Branch Kotwali was also received in the office of ACP on 24.06.2017. The original report was proved as Ex.
PW14/C. The receiving of the said report is mentioned at entry no. 1319 of diary register. The copy of the relevant entry was proved as Ex. PW14/D. As per record, on 24.06.2017, one report u/s 57 NDPS Act, prepared by ASI Pawan Kumar, Narcotics Cell Crime Branch, was also received in the office of ACP on 24.06.2017. The original report was proved as Ex. PW14/E. The receiving of the said DD was mentioned at entry serial no. 1320 of diary register. The copy of the relevant entry was proved as Ex. PW14/F (OSR).
18.PW15 Retired ACP Sh. Sanjeev Tyagi deposed that on 24.06.2017 he was posted as ACP Narcotics Cell, Crime Branch, Dariya Ganj. On that day at about 12:30 AM, Insp. Manoj Kumar Narcotics Cell, telephonically informed him about a secret information that one Salim r/o J. J. Tigri Kala and Masuri, Ghaziabad, indulged in supplying of 'heroin' from Bareily to Delhi and between 01:45 to 02:15 AM, coming from Kalindi Kunj to Okhla Phase-II with his associate namely Dilshad and would bring 'heroin' in vehicle, bearing no. DL 3CAG 4189. If a trap put under pass Sarita Vihar, they could be apprehended. On this information, he directed Insp. Manoj Kumar to conduct raid in accordance with information. On the same day i.e. on 24.06.2017 DD No. 2 dated FIR No 98/2017 State Vs.Dilshad & Anr. Page No. 30/65 Digitally signed by ARUL ARUL Date:
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24.06.2017 recorded at Narcotics Cell, South East was received in his office in respect of the secret information and the same was put before him and he had seen and put his signature on the same at Point A. The same was proved as Ex. PW14/A. On the same day i.e. on 24.06.2017, one report u/s 57 NDPS Act, prepared by ASI Krishan Kumar, Narcotics Cell Crime Branch Kotwali regarding recovery of 'heroin' from accused persons, was also received in his office. The same was put up before him and he had seen the same and put his signature on the same at Point A. The original report was proved as Ex. PW14/C. On the same day i.e. on 24.06.2017, one more report u/s 57 NDPS Act, prepared by ASI Pawan Kumar, Narcotics Cell Crime Branch regarding arrest of both accused persons, was also received in his office. The original report was already Ex. PW14/E. The said report was put before him and he had seen the same and put his signature on the same at Point A.
19.The relevancy of the witnesses examined are succinctly delineated in the following tabular form:
PW NAME RELEVANCE
1 HC Rajiv He was the Duty Officer in PS
Crime Branch, at Saket who
registered the present FIR on the
basis of rukka sent by PW10 IO
ASI Krishan Kumar through Ct
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Kuldeep. He proved the FIR Ex
PW1/A.
2 Inspector R Srinivasan He was posted as SHO PS Crime
Branch and received sealed
articles, FSL Form, Carbon
copies of seizure memos on
which he affixed his seal of
'RSS' and deposited the same in
the Malkhana after making entry
in Register No. 19 in compliance
of Section 55 of the NDPS Act.
3 Sh Shailendra Yadav, He was the FSL expert, who
Senior Scientific Officer proved his report viz Ex.PW3/A whereby it was opined that the seized item contained Heroine.
4 Inspector Manoj Kumar He was the superior officer to
ASI Krishan Kumar who
conveyed the secret information
to the ACP
5 ASI Jag Narayan He was the MHC(M) PS Crime
Branch and proved entries in
Register No. 19 regarding
depositing, and issuance of case
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property.
6 Sh R.K Pahwa, He has proved the certified copy
Assistant Section of vehicle particular pertaining to
Officer, Transport vehicle no.DL3CAG-4189.
Authority. Certified copy of report of the
aforesaid vehicle was proved as
Ex.PW6/A
7 HC Kuldeep Singh He was part of the raiding team
which apprehended the accused
and effected recoveries of
contraband item from the accused
persons.
8 Ct Sunil He was posted as Constable PS
Crime Branch at Malviya Nagar
he obtained two sealed pullandas
of present case marked as A-1
and B-1 and each duly sealed
with seal of '7BPSNBDELHI'
and 'RSS' from MHC (M) HC
Jag Narain alongwith two FSL
forms and copy of seizure memo
and took them to FSL Rohini
vide RC no. 181/21/17 dated.
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27.06.2017. He deposited the
abovestated case property in FSL
Rohini and obtained
acknowledgment
9 Retired ASI/Ted He inspected the vehicle no
Devender Kumar DL3CAG4189 Maruti Baleno
Car
10 ASI Krishan Kumar He is the first IO of the case who
received secret information,
conducted investigation leading
to arrest of the accused, and
effected recoveries from them.
11 ASI Jitender He was part of the raiding team
which apprehended the accused
and effected recoveries of
contraband item from the accused
persons.
12 ASI Pawan Kumar He was the second IO to whom
investigation was assigned after
registration of the FIR. After
completing investigation, he filed
the chargesheet.
13 ASI Mahesh Chand He had issued the offical seal
bearing impression 7BPSNB
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DELHI to IO /ASI Krishan
Kumar
14 Ct Pawan. He was posted in the office of
ACP and proved receipt report
u/s 42 and 57 of NDPS Act.
15 Sh. Sanjeev Tyagi, He was posted as ACP, Crime
retired ACP Branch and proved receipt of
reports u/s 42 and 57 of NDPS
Act.
STATEMENT OF ACCUSED
20.Accused was examined u/s 313 Cr.PC. In their defence, they averred that they do not know anything about this case and have been falsely implicated in this case. Both accused deposed that it was a false case and that they were innocent. They further deposed that they were falsely implicated by the police in this wrong case and that they had no knowledge about it. It was further deposed by both accused persons that nothing was recovered from their possession and that it was planted upon them by the police officials. Accused persons did not lead evidence in their defence.
ARGUMENTS OF LD. ADDL. PUBLIC PROSECUTOR FOR THE STATE AND LD. DEFENCE COUNSEL
21. Sh. Wasi-Ur-Rahman, Ld. Public Prosecutor for the State submitted that FIR No 98/2017 State Vs.Dilshad & Anr. Page No. 35/65 Digitally signed by ARUL ARUL Date:
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all the relevant material prosecution witnesses have been examined and cumulatively they have proved the case of prosecution beyond reasonable doubt. It was also submitted by Ld. Addl PP for State that after the prosecution evidence, the statement of accused has been recorded u/s 313 Cr.PC. In his statement, the accused nowhere explained any circumstance proved against them and put to them during their examination. The accused also did not claim any prejudice for non compliance of any provision, if any,.
22.Ld. Addl PP for State further contended that there is no reason to discard the testimony of witnesses examined in this case. Furthermore, there is no defence taken by the accused, which can be considered at par with the prosecution evidence, rather, in light of Section 35 and 54 of NDPS Act, apart from the evidence led by prosecution, there is presumption of having the contraband substance in the possession of accused persons unless and until the same is proved contrary to the satisfaction of this Court.
23. It was further submitted that initially after receiving the secret information, the compliance of Section 42 of NDPS Act has been done as the same was reduced in writing vide DD No-2 which was sent to the ACP through the Inspector In charge Narcotic Cell. The information was also conveyed to the ACP through the inspector orally and the ACP had directed to constitute a raiding party and take necessary action in FIR No 98/2017 State Vs.Dilshad & Anr. Page No. 36/65 Digitally signed by ARUL ARUL Date:
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accordance with secret information. Thus, the compliance of Section 42 of NDPS Act has been done and has been proved successfully. Ld. Addl PP for State placed reliance on Bahadur Singh Vs State of Haryana (2010) 4 SCC 445.
24. It was further contended that as far as the contention of Ld. Counsel for accused, that the search warrants were not taken in compliance of the relevant provision of NDPS Act, it is submitted that the search warrants in the present case are not required because the contraband substance was recovered from the wearing clothes of accused persons and no search or seizure effected from any connivance vessel or premises. Thus, this contention has no legal force and is liable to be ignored.
25.Ld. Addl PP for State further contended that as per the evidence after apprehending the accused persons they were apprised about the secret information and their legal rights that their search in order to recover some contraband substance, could be conducted in the presence of some Gazetted Officer or Magistrate, if they so desire. It was also contended that the written notices u/s 50 of NDPS Act were also served upon both accused persons separately in this regard, however, both the accused persons had refused to avail the legal rights and only thereafter the recovery was effected from the bodily possession of the accused persons. The proceedings and the testimony in respect of the compliance of Section 50 of NDPS Act is believable and there is no reason to discard FIR No 98/2017 State Vs.Dilshad & Anr. Page No. 37/65 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.09.06 17:34:32 -0300 the same. Hence, the compliance of Section 50 of NDPS Act has been done and proved successfully.
26. It was further argued that at the spot the seizure of contraband substance was done properly and sealed the parcels and then handed over to SHO concerned who complied with the provisions u/s 55 of NDPS Act as he affixed his seal on the parcels and the FSL form and put the FIR No after taking the same from duty officer and then he deposited the same with MHC(M) in the Malkhana, which reflects from the exhibited entry of register no 19 of Malkhana which is Ex. PW9/A. The SHO also had recorded a DD in this regard. The entry in the register no 19 and the said DD has been proved. It was also argued that the report u/s 57 of NDPS Act regarding the seizure and arrest also prepared and sent to ACP. The said report has also been proved during trial.
27. It was submitted that the contention of defence counsel that the FSL form is not available on record and it creates doubt. It was submitted byld. Addl PP for State that the FSL form bears the specimen seals of the seizure officer and the SHO and the same is meant for the FSL for comparison with the seals on the parcels. The FSL form was sent to FSL with the sample parcels and as per the acknowledgment of the FSL and the result thereof, it is clearly reflected that the samples parcels and the sample seals were received in the FSL and the same were intact. It was submitted that the FSL form was not on record as it was retained by the FIR No 98/2017 State Vs.Dilshad & Anr. Page No. 38/65 Digitally signed by ARUL ARUL VARMA VARMA Date:
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FSL authorities and sending of the sample to FSL was proved by Road Certificate. It was thus contended that there is no room for doubt in this regard and the apprehension of tampering with the parcels has been completely ruled out.
28. Ld. Addl PP for State submitted that as regards the contention of Ld. Counsel for accused that the no public witnesses were joined or no efforts were made to join the public witnesses. This contention is factually not correct because as per the testimony of IOs they had made efforts and asked several public persons to join investigation but none of the public persons had agreed due to their own reasons and further due to the paucity of time no written notice could be served upon them. It was further submitted that in such cases, independence evidence is required but accused cannot be acquitted merely because non production of independence witness. Ld. Addl PP for State placed reliance on Ajmer Singh v State of Haryana (2010) 3 SCC 746.
29.Ld. Addl PP for State responded against the contention of non compliance of Section 52 A of NDPS Act that Section 51 A of NDPS Act is meant for drawing the representative samples of the case property so that the remaining case property can be disposed of and the samples drawn by the IO at the spot which were sent to FSL is not against the provisions, therefore the contention regarding non compliance of Section 52 A is liable to be ignored.
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30.It was thus submitted that the all the prosecution witnesses have deposed in similar vein and there is no such discrepancy in the testimony of any of the prosecution witness which could shake the substratum of the case.
Although there are some minor discrepancies/omission which are bound to occur in the testimony of natural witnesses that too recorded after a long time about 3 to 5 years. It was thus submitted that the case has been proved beyond reasonable doubt and accused persons are liable to be held guilty for the offence they are charged with and accused persons ought to be convicted.
31. Per contra, Sh. Akshay Bhandari, Ld. Counsel for accused Saleem and Sh. Mehraj Chaudhary, Ld. Counsel for accused Dilshad submitted that the prosecution did not make a genuine attempt to array the public witnesses at the time of investigation and recovery of the contraband item. It was further submitted that there has been non compliance of mandatory provisions of the NDPS Act. It was submitted that as per law the FSL form has to be sent in triplicate. However, in the present case, the FSL form has been sent in duplicate. Ld. Counsel for accused submitted that the contraband that was purported to be seized by IO during investigation, was different than the one produced in the Court for identification of the accused by the witness. Ld. Counsel placed reliance on Vijay Pandey Vs State of Uttar Pradesh Criminal Appeal no 1143 of 2019 passed by the Hon'ble Supreme Court to contend that if there is FIR No 98/2017 State Vs.Dilshad & Anr. Page No. 40/65 Digitally signed by ARUL ARUL Date:
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discrepancies between what was seized by the police and what was identified before the Court, it is as good as non production of case property.
32.It was further submitted that the IO did not comply with the mandate of Section 52A of NDPS Act inasmuch as the samples of the contraband item were not drawn before a Magistrate. In this context, Ld. Counsel placed reliance on the cross examination of the 1st IO PW-10 ASI Krishan Kumar, who categorically deposed that he had not drawn the samples in the presence of Magistrate but they were drawn in the presence of police witnesses. Ld. Counsel also contended that as per the testimony of witnesses, there was no FSL form on record. Ld. Counsel for accused placed reliance on Matloob Vs State (Delhi Administration 67 (1997) DLT 372 to contend that if the FSL form has not been placed on record, a reasonable doubt can be inferred qua the case of the prosecution as every apprehension of tampering is made out. It was submitted that despite questioning the witnesses on the availability of FSL form, the same was not brought on record. In this context, Ld. Counsel placed reliance on Radha Kishan Vs State 2000 CrI LJ 4090 to contend that the CFSL form is a document which provides valuable safeguard to an accused to ensure that no tampering has been done during the intervening period.
33. Ld. Counsel of accused Dilshad submitted that the vehicle in question ie Baleno did not belong to accused Dilshad but it belongs to accused FIR No 98/2017 State Vs.Dilshad & Anr. Page No. 41/65 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.09.06 17:35:06 -0300 Saleem. It was further submitted that accused Dilshad had nothing to do with contraband item and he was merely traveling in the car belongs to accused Saleem. It was further submitted that all the witnesses were police witnesses and no public witnesses were asked to join the investigation. Ld. Counsel for accused placed reliance on Noor Aga Vs State of Punjab & Anr Criminal Appeal no 1034 of 2008, Mohd Ibrahim Vs State of NCT of Delhi CRL.A 426 of 2010, Simarjeet Singh Vs State of Punjab 2023 LiveLaw (SC) 570 and Karamchand Vs State 126(2006) DLT 272.
34.It was further submitted by Ld. Counsel for accused Dilshad that police officials did not make genuine attempts to make public persons as witnesses. Ld. Counsel thus submitted that there are discrepancies in the version of prosecution and therefore benefit thereof must enure in favour of accused and accused ought to be exonerated.
STATEMENT OF REASONS FOR THE DECISION A. APPREHENSION OF ACCUSED, RECOVERY OF ALLEGED CONTRABAND FROM THEM & COMPLIANCE OF SECTION 42 OF THE NDPS ACT.
35. The manner in which the accused were apprehended was spelt out in detail by the IO/PW-10 ASI Krishan Kumar and recovery witnesses PW-7 Hc Kuldeep Singh, and PW-11 ASI Jitender. They all deposed in a similar vein and averred that on 24.06.2017, when the secret information had already been received that accused Saleem and Dilshad will supply FIR No 98/2017 State Vs.Dilshad & Anr. Page No. 42/65 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.09.06 17:35:15 -0300 heroine in Tigri JJ Camp, and after senior officer PW-4 Inspector Manoj Kumar conveyed the direction of ACP Sh Sanjeev Kumar Tyagi that a raiding party be constituted and raid be conducted, inter alia the above three witnesses took the IO bag, filed testing kit, electronic weighing scale and went to the spot alongwith the secret informer. Thereafter, barricades were put at the spot, and at about 01:55 AM one silver colour Baleno Maruti car bearing no DL3CAG4189 was coming from the side of Kalindi Kunj whereupon the secret informer identified the driver thereof as Saleem and co-driver as Dilshad. The said vehicle was stopped and thereafter proceedings in compliance of Section 50 NDPS Act were conducted, and eventually the contraband item was recovered and seized and accused were arrested.
36. The contention of Ld. Counsel for the accused that no public witnesses were joined nor notice to any public witness was given to join the proceedings, pales into insignificance in light of the fact that PW- 7 HC Kuldeep Singh categorically deposed that IO requested 4-5 passerbys to join the investigation for searching the accused persons and their vehicle, but none of them agreed and left the spot without disclosing their names and address. It was elicited in the cross-examination of PW-7 HC Kuldeep that the IO did not give notice u/s 160 Cr.PC to the public witness who refused to joined proceedings and neither did they tell the public witness that they would initiate proceedings u/s 187 IPC if they do FIR No 98/2017 State Vs.Dilshad & Anr. Page No. 43/65 Digitally signed ARUL by ARUL VARMA VARMA 2023.09.06 Date:
17:35:25 -0300 not join the proceedings. PW-10 the IO/ASI Krishan Kumar also deposed on similar lines and it was elicited in his cross-examination that he did not remember whether he had joined any public witness in NDPS Act which were investigated by him.
37. It was thus emphasized by Ld. Counsel for the accused that the police officials did not make a genuine attempt to array public witnesses. In this context, it is to be borne in mind that the raid took place in the middle of the night at around 01:30 AM. It would be wholly unreasonable to expect public persons present at that hour, to join such an investigation. It has also to be borne in mind that as per testimony of PW-7 HC Kuldeep, the raiding team members were in civil clothes. Moreover, keeping in view that the accused persons, as per the tip-off received, were themselves travelling in a vehicle, the possibility of them escaping was real, and thus non service of notice u/s 160 Cr.PC or 187 IPC upon them seemed unrealistic due to paucity of time. Significantly, in this context, it would be useful to peruse the following extracts of Ajmer Singh v State (supra):
"19 The learned counsel for the appellant has submitted that the evidence of the official witnesses cannot be relied upon as their testimony, has not been corroborated by any independent witness. We are unable to agree with the said submission of the learned counsel. It is clear from the testimony of the prosecution witnesses PW 3, Paramjit Singh Ahalwat, DSP, Pehowa; PW 4, Raja Ram, Head Constable and PW 5, Maya Ram, which is on record, that efforts were made by the investigating party to include FIR No 98/2017 State Vs.Dilshad & Anr. Page No. 44/65 Digitally signed by ARUL ARUL Date:
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independent witness at the time of recovery, but none was willing. It is true that a charge under the Act is serious and carries onerous consequences. The minimum sentence prescribed under the Act is imprisonment of 10 years and a fine. In this situation, it is normally expected that there should be independent evidence to support the case of the prosecution. However, it is not an inviolable rule. Therefore, in the peculiar circumstances of this case, we are satisfied that it would be travesty of justice, if the appellant is acquitted merely because no independent witness has been produced.
20 We cannot forget that it may not be possible to find independent witness at all places, at all times. The obligation to take public witnesses is not absolute. If after making efforts which the court considered in the circumstances of the case reasonable, the police officer is not able to get public witnesses to associate with the raid or arrest of the culprit, the arrest and the recovery made would not be necessarily vitiated. The court will have to appreciate the relevant evidence and will have to determine whether the evidence of the police officer was believable after taking due care and caution in evaluating their evidence."
38.Thus, the testimony of police witnesses cannot be disregarded merely on account of non joining of public witnesses.
39.It was also contended by Ld. Counsel for accused that it is an admitted case of the prosecution that the search of the vehicle was conducted after sunset and before sunrise and thus the prosecution was under an obligation to comply with the proviso to Section 42 of NDPS Ac i.e. the IO ought to have recorded his grounds for belief as to why he had to exercise the power of entry and search without warrant or authorization. This contention is bereft of any justification inasmuch as the contraband substance was recovered from the person of the accused persons i.e from the clothes that they were wearing, and contraband was not recovered FIR No 98/2017 State Vs.Dilshad & Anr. Page No. 45/65 Digitally signed by ARUL ARUL VARMA VARMA Date:
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from the Baleno car in question. It is correct that the accused persons were traveling in a Baleno car but by this very fact it cannot be construed that the recovery of contraband items from them is akin to recovery of contraband item from the car. A perusal of Section 42 NDPS Act would reveal that the power therein can be exercised when an empowered officer has reason to believe from personal knowledge and information that inter alia any contraband item, is kept or concealed in any building, conveyance or enclosed space. The recovery from the pockets of accused persons cannot be equated to a recovery from a conveyance or vehicle. Moreover, arguendo that recovery was to be effected from the Baleno car, between sunset and sunrise, even then the IO has furnished a plausible albeit a crisp explanation qua compliance of proviso to Section 42 NDPS Act. PW-10 ASI Krishan Kumar deposed as thus:
"Due to paucity of time, I could not obtained the search warrant for the vehicle about which the information was received. I told this fact to Inspector Manoj Kumar."
40. PW-4 Inspector Manoj Kumar also averred that ASI Krishan Kumar had apprised him that the accused persons would be bringing heroine in Car no DL3CAG4189 between 01:45 AM to 02:15 AM. PW-4 Inspector Manoj Kumar further deposed that he had verified the contents of the secret information and had informed the ACP Sh Sanjeev Kumar Tyagi telephonically and the ACP had directed conducting of the raid. Thus, it is FIR No 98/2017 State Vs.Dilshad & Anr. Page No. 46/65 Digitally signed by ARUL ARUL VARMA Date:
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apparent that safeguards were in place for conducting the raid and the raid was conducted after due authorization from the senior officers, and thus there is compliance of proviso to Section 42 NDPS Act. Mere non preparation of note of belief cannot be construed as non compliance of the said proviso as the law nowhere mandates that a note of belief ought to be prepared.
B. COMPLIANCE OF SECTION 55 OF THE NDPS ACT BY THE SHO
41.At this juncture, it would be apt to refer to Section 55 of the NDPS Act:
"SECTION 55. Police to take charge of articles seized and delivered.- An officer-in -charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in-charge of the police station."
42.In the present case, Inspector R Sriniwasan, the Officer In charge of PS Crime Branch Delhi was examined as PW-2. He categorically deposed that on 24.06.2017 at about 06:53AM PW-7 Ct Kuldeep came to his office and produced six sealed pullandas marked as A, A1, A2, B, B1 and B2 alongwith 2 FSL Forms and 2 carbon copies of seizure memos. He deposed that all the above pullandas were sealed with the seal of 7BPSNB DELHI and the impression of seal was also appearing on both the FSL forms. The witness categorically deposed that he thereafter put FIR No 98/2017 State Vs.Dilshad & Anr. Page No. 47/65 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.09.06 17:36:06 -0300 his seal of RSS on all the above sealed pullandas, FSL form and put his initials on the same. He also put FIR No as 98/2017 on all sealed pullandas, both the FSL forms and the carbon copy of the seizure memos.
43. Thereafter, PW-2 Inspector Sriniwasan called the MHC(M) PW -5ASI Jag Narayan alongwith Malkhana Register no 19, handed over all the above sealed pullandas, FSL Forms, carbon copies of the seizure memos to the MHC(M), and the MHC(M) made an entry in this regard in Register no 19. The witness proved the copy of entry no 2611 dated 24.06.2017 in the Register no 19 as Ex. PW5/A bearing his signatures at point-A. The witness also deposed that he had lodged DD No 3 dated 24.06.2017 at about 07:35 AM in compliance of Section 55 of the NDPS Act and proved the same as Ex.PW2/A.
44. The above testimony finds corroboration with the deposition of MHC(M) ASI Jag Narayan who was examined as PW-5He categorically deposed that on 24.06.2017, when he was the MHC(M) PS Crime Branch, he was called by PW-2 Inspector Sriniwas in the office alongwith Register no 19. He further deposed that the SHO gave him six pullandas no A, A1,A2, B, B1 and B2 alongwith form FSL all having seals of 7BPSNB DELHI and RSS alongwith 2 carbon copies of seizure memos. He too corroborated the fact that entries in this regard were made at serial no 2611 dated 24.06.2017 in Register no 19. He also clarified that the SHO had signed the entry Ex. PW5/A, bearing signatures of SHO at FIR No 98/2017 State Vs.Dilshad & Anr. Page No. 48/65 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.09.06 17:36:15 -0300 point-A and his own signatures at point B. The witness further was categoric in stating that the case property remained intact during the period it remained in his possession and was not tampered with in any manner, and denied the suggestion that the property was tampered at the behest of the IO. Ld. Counsel for the accused subjected both the above witnesses namely PW-2 Inspector R Sriniwasan and PW-5 ASI Jag Narayan to cross-examination, however, nothing material could be elicited therefrom. Both the witnesses denied that the entries made by them were ante dated or ante time. In fact, PW-2 Inspector Sriniwasan affirmed in his cross examination that he put his seal of RSS on each pullandas produced before him.
45. Thus, as is evident from the above depositions, the prosecution evidence clearly discloses that the sealed articles were produced before Officer In- charge of the police station, that he had put his seal over those articles and there were sent for safe custody in the Malkhana. Thus, there is total compliance of Section 55 of NDPS Act in terms of Ashok Kumar Vs State of Haryana AIR 2000 SC 3474 C. REPORT UNDER SECTION 57 OF NDPS ACT
46.It would be apposite to refer to Section 57 of the Act, which is reproduced hereunder:
"Whenever any person makes any arrest or seizure, under this Act, he shall, within forty eight hours next after such arrest or seizure, make a full report of all the particulars of FIR No 98/2017 State Vs.Dilshad & Anr. Page No. 49/65 Digitally signed by ARUL ARUL VARMA Date:
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such arrest or seizure to his immediate official superior."
47.The legislative intent behind Section 57 of the Act, has been delved upon in Megha Ram v State of Rajasthan 1997 Cri LJ 3091 in the following words:
"Section 57 comes into play in the post-arrest period. It enjoins upon the officer, arresting an accused and effecting recovery of a narcotic drug or psychotropic substance from his possession, to inform his superior officers of the actions taken by him. Compliance of this provision is meant to serve a dual purpose. On the one hand it affords an element of authenticity to the action taken by him in the cause of preventing commission of offences against the NDPS Act. The consciousness of compliance of this section puts, in a sense, a sort of check on the arbitrary exercise of his powers of arrest and seizure by him under the Act and creates a sense of responsibility in him to act in accordance with relevant provisions of law so as not to be undermined in the estimation of his superior officers with regard to the discharge of his duties as a responsible officer. On the other hand the communication of the information apprises the superior officers of the position of offences against the NDPS Act and also of the steps taken and compliance of the relevant rules made by their subordinates in the administration of the said Act. If the officer has acted as a vigilant and duty conscious officer in the pre-arrest-stage of the proceedings and his evidence discloses satisfactory compliance of the mandatory provisions relating to that stage of proceedings and inspires confidence in Court, non-compliance or compliance with some irregularity of certain provisions relating to post-arrest period would not be fatal to the prosecution case as that would be a case of an offence already committed and concluded. The purpose of compliance of S. 57 is to afford further reliability to the action already taken by the subordinate, officer. In that sense of the matter compliance of S. 57 is not mandatory but for that reason its importance in the scheme of the Act cannot be minimised (see State of Punjab v. Balbir Singh)"
48.PW- 12 ASI Pawan Kumar, who was the 2 nd IO deposed that on 24.06.2017, after registration of the FIR, the investigation was assigned to him, and he reached the spot at about 10:15 AM. He deposed that at FIR No 98/2017 State Vs.Dilshad & Anr. Page No. 50/65 Digitally signed by ARUL ARUL Date:
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about 12:15 PM he arrested the accused Saleem vide arrest memo Ex. PW10/E bearing his signatures at point-X. Thereafter, at about 01:15 PM, he arrested accused Dilshad vide arrest memo Ex. PW10/F bearing his signatures at point-X. The factum of arrest by PW-12 ASI Pawan was corroborated by PW-10 ASI Krishan Kumar.
49. Qua seizure of contraband items, PW-10 ASI Krishan Kumar, who was the IO, deposed that from the search of accused Saleem, 260 grams of heroine were recovered, and he had seized the contraband items with FSL Form vide seizure memo Ex. PW7/E bearing his signatures at point-B. He further deposed that from the search of accused Dilshad, 240 grams of heroine were recovered, and he had seized the contraband items with FSL Form vide seizure memo Ex. PW7/F bearing his signatures at point-B. The witness basically corroborated the recovery of contraband item and seizure thereof from both the accused persons, the factum whereof had also been proved by PW-7 HC Kuldeep Singh.
50. PW-10 ASI Krishan Kumar, the IO deposed that he prepared the report u/s 57 of NDPS Act and proved the same as Ex. PW4/A bearing his signatures at point-A. The said report essentially pertains to the seizure of contraband items from the accused persons. The witness further deposed that the said report was forwarded by the Inspector to the ACP.
51. PW-12 ASI Pawan Kumar the 2nd IO deposed that he prepared the report u/s 57 of NDPS Act and he proved the same as Ex.PW4/B bearing his FIR No 98/2017 State Vs.Dilshad & Anr. Page No. 51/65 Digitally signed by ARUL ARUL Date:
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signatures at point-X. The said report essentially pertains to the arrest of the accused persons. The witness further deposed that the said report was forwarded by the Inspector to the ACP.
52.The receipt of the above reports u/s 57 of NDPS Act in the office of the ACP were proved by PW-14 Ct Pawan and PW-15 ACP Sh Sanjeev Tyagi. PW-14 Ct Pawan deposed that on 24.06.2017, one report u/s 57 NDPS Act prepared by PW-10 ASI Krishan Kumar, was received in the office of ACP on the same date. He proved the original report as Ex.
PW14/C bearing signatures of the ACP at point-A. He further deposed that the receiving of the said report was mentioned at entry no 1319 of Diary register and he proved relevant entry as Ex. PW14/D. PW-14 Ct Pawan further deposed that on 24.06.2017, one report u/s 57 NDPS Act prepared by PW-12 ASI Pawan Kumar, was received in the office of ACP on the same date. He proved the original report as Ex. PW14/E bearing signatures of the ACP at point-A. He further deposed that the receiving of the said report was mentioned at entry no 1320 of Diary register and he proved relevant entry as Ex. PW14/F
53. The above testimony was corroborated by ACP himself when he was examined as PW-15. He deposed that on 24.06.2017, reports u/s 57 NDPS Act, prepared by ASI Krishan Kumar and ASI Pawan Kumar, were put up before him, and he proved the original reports as Ex.PW14/C and Ex.PW14/E respectively, and also identified his signatures thereon. FIR No 98/2017 State Vs.Dilshad & Anr. Page No. 52/65
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54.Thus, there was in toto compliance of Section 57 of NDPS Act.
D. COMPLIANCE OF SECTION 50 NDPS ACT
55.To adjudicate this issue, it would be profitable to refer to Section 50 of the Act, which reads as thus:
"Section 50: Conditions under which search of persons shall be conducted:
(1)When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate (2)If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1)"
56.The safeguards mentioned in Section 50 are intended to serve a dual purpose- to protect a person against false accusation and frivolous charges as also to lend credibility to the search and seizure conducted by an empowered officer.
57.In the present case, though there was no submission qua non compliance of Section 50 of NDPS Act by the Ld. Counsel for accused, it is pertinent to note that nothing was elicited in the cross-examination of the prosecution witnesses which could lead to an inference that there was non compliance of Section 50 NDPS Act. A perusal of record reveals that PW-10 ASI Krishan Kumar had categorically deposed that he had given a written notice u/s 50 of NDPS Act in original to accused Saleem, carbon copy whereof was Ex. PW7/A bearing signatures of witness at point-B FIR No 98/2017 State Vs.Dilshad & Anr. Page No. 53/65 Digitally signed by ARUL ARUL Date:
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and reply of accused Saleem in his own handwriting as Ex. PW7/C. It was submitted that the accused refused to avail his legal rights, and his reply bore his signature at point X and signature of witness at point A. PW-10 ASI Krishan Kumar further deposed that he had given a written notice u/s 50 of NDPS Act in original to accused Dilshad also, carbon copy whereof was Ex. PW7/B bearing signature of witness at point-B. It was deposed that since accused Dilshad was illiterate, the witness wrote down his reply which is Ex. PW7/D bearing his signature at point-A and signature of witness at point B. The witness had deposed that he had apprised both the accused persons about their legal rights and that their search could be conducted in the presence of a Magistrate or a Gazetted Officer, if they so desired and arrangement could be made either by calling such officer at the spot or by taking and producing them before such officer. However, both the accused persons refused for the same. The recovery witness PW-7 HC Kuldeep also affirmed this fact and deposed that the IO, after intimating to both the accused persons their rights to get themselves searched before a Magistrate or a Gazetted Officer, and after explaining the meaning of such an Officer, prepared a notice u/s 50 NDPS Act and served to both the accused persons which were exhibited as Ex.PW7/A and Ex.PW7/B bearing signatures at point- A. He further deposed that both the accused refused to get themselves searched by such an officer and their replies in this regard were Ex. FIR No 98/2017 State Vs.Dilshad & Anr. Page No. 54/65
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PW7/C and Ex. PW7/D respectively. Thus, there has been compliance of mandate of Section 50 of NDPS Act.
E. DEPOSIT OF EXHIBITS IN FSL FOR FORENSIC EXAMINATION AND FSL REPORT.
58. Ld. Counsel for the accused had contended that the FSL form had not been proved or filed on record and in such a scenario an adverse inference ought to be drawn and tampering cannot be ruled out. In this context, Ld. Counsel placed reliance on Matloob (supra) Ld Counsel contended that the prosecution had treated the forwarding letter as FSL form. In this context, Ld. Counsel placed reliance on Mohd Ibrahim (supra). It was further submitted that a copy of the FSL form ought to have been sent by post and a copy ought to have been put inside sealed pullanda in terms of the mandate of Radha Kishan (supra) It was lastly submitted that the prosecution had not complied with Section 52-A of NDPS Act as the samples were not drawn in the presence of Magistrate thereby violating the mandate of Simarjeet Singh Vs State (supra).
59. As far as the contention qua non compliance of Section 52 A NDPS Act is concerned, it was contended by Ld. Addl PP for State that the said provision is only essential for drawing representative samples of the case property so that the remaining case property can be disposed of. A perusal of Simarjeet Singh (supra) reveals that therein a serious doubt was created about the prosecution's case that the substance recovered was a FIR No 98/2017 State Vs.Dilshad & Anr. Page No. 55/65 Digitally signed by ARUL ARUL VARMA Date:
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contraband. The verdict of acquittal was recorded as the case of the prosecution was not free from suspicion and the same was not established beyond a reasonable doubt. However, in the present case, the prosecution has established its case beyond reasonable doubt inasmuch as there has been compliance of all the mandatory provisions of law viz. Section 42, Section 50, Section 55 and Section 57 NDPS Act coupled with the mandatory presumptions u/s 35 and 54 NDPS Act. There is nothing to doubt the veracity of the claim of the prosecution and it is not a case where trial has been vitiated due to Section 52 A NDPS Act.
60. As far as non availability of FSL form on record is concerned, it was submitted by Ld. Addl PP for State that the FSL form was sent to the FSL with the sample parcels and the same was duly received in the FSL. The sanctity of chain of custody qua deposit of Exhibits in FSL from the Malkahan was also duly proved by the prosecution. PW- 8 Ct Sunil deposed that on the instructions of the IO, he had taken the case property from MHC(M) ie two sealed pullandas bearing mark A1, B1 each duly sealed with the seal of 7BPSNB DELHI and RSS alongwith two FSL forms and copy of seizure memo to the FSL vide RC No. 181/21 dated 27.06.2017. He deposed that he deposited the above stated case property in FSL Rohini and obtained acknowledgment. Even in his cross examination he deposed that he had taken the two FSL forms. The receipt FIR No 98/2017 State Vs.Dilshad & Anr. Page No. 56/65 Digitally signed by ARUL ARUL VARMA Date:
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of inter alia the FSL forms was also categorically affirmed by PW-3, Sh Shailender Yadav, Senior Scientific Officer, FSL Rohini. He had deposed that he had received two sealed parcels no A1 and B1 duly sealed with the seal of 7BPSNB DELHI and RSS through Ct Sunil alongwith forwarding letter and two original FSL forms. In the cases cited by Ld. Counsel for accused, the ratio was to the effect that it was necessary for the prosecution to prove that the CSFL form containing the specimen seals which was duly filled at the time of taking the sample also remained intact and it reached the office of CFSL alongwith samples. In Karamchand (supra) also it was not proved that the FSL form was deposited in the Malkhana. However, in the present case, the MHC(M) PW-5 ASI Jag Narayan categorically deposed that on 24.06.2017, the SHO handed over to him all the pullandas alongwith FSL form and two carbon copies of seizure memos and he proved the entry in register no 19 to this effect as Ex. PW5/A. He further submitted that on 27.06.2017, he had sent the parcels alongwith FSL form through Ct Sunil to the FSL vide RC No 181/21/17 photocopy whereof was proved as Ex. PW5/C bearing his signatures at point-A. He even deposed that the FSL result was received in the Malkhana through Ct Pankaj on 14.09.2017. Nothing could be elicited in his cross-examination. Thus, the prosecution was able to cogently established the sanctity of chain of custody.
61.The FSL report Ex. PW3/A was proved by Sh Shailender Yadav,. FIR No 98/2017 State Vs.Dilshad & Anr. Page No. 57/65
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Scientific Officer, Chemistry, FSL Rohini, who deposed that in the present case he received two sealed parcels no A1 and B1 duly sealed with the seal of 7BPSNB DELHI and RSS on 27.06.2017 through Ct Sunil Kumar alongwith forwarding letter and two original FSL forms. He further deposed that the seals were found intact and tallied with the documents enclosed alongwith parcels. He deposed that he had examined the exhibits and on chemical,TLC, GC and GC-MS examinations, the exhibits were found to contain inter alia diacetylmorphine. Thus, the factum of contraband item being Heroine was cogently established by this witness.
F. FAILURE TO EXPLAIN CIRCUMSTANCES APPEARING AGAINST THE ACCUSED
62.It was contended by the State that the accused did not avail the opportunity to explain the circumstances appearing in the evidence against them, and only put forth a mere bare denial or replied to the accusations by merely stating that 'it is incorrect'. they could not explain recovery of contraband items from them. The accused did not even put forth a plea of alibi. They only averred in their defence that it was a false case and that they were innocent. They further deposed that they were falsely implicated by the police in this wrong case and that they had no knowledge about it. Accused further deposed that nothing was recovered from their possession and that it was planted upon them by the police FIR No 98/2017 State Vs.Dilshad & Anr. Page No. 58/65 Digitally signed by ARUL ARUL VARMA VARMA Date:
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officials.
63.During the course of arguments, Ld. Counsel for accused had sort to highlight another supposed inconsistency. It was submitted that it was incumbent upon the prosecution to prove that the sample sent to the laboratory is the same sample that was drawn from the alleged recovery qua the accused. Ld. Counsel placed reliance on Vijay Pandey (supra) to contend that since the sample produced in court was not established as having been seized from him, then the failure of the prosecution to relate the seized sample with that seized from the accused, makes the case no different from failure to produce the seized sample itself. Reliance was also placed on Noor Aga (supra) to contend that the sample, with only a seal, by itself cannot be stated to be one recovered from the accused specially when the prosecution case is that it contained signature of accused which was not found on the original. It was submitted that in Noor Aga's (supra) case the independent witnesses did not sign the sample and original seal was not produced and it was a mystery to whom the seal was entrusted. In this context, Ld. Counsel submitted that the IO PW-10 ASI Krishan Kumar and PW-7 HC Kuldeep Singh avowed in their cross-examination that the sample pullanda produced in the court did not bear the signature of the accused. In his cross-examination, PW-10 ASI Krishan Kumar was shown the pullandas and he avowed that it was correct that none of the pullandas bore the signatures of the accused FIR No 98/2017 State Vs.Dilshad & Anr. Page No. 59/65 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.09.06 17:38:05 -0300 persons. He however volunteered that at the time of recovery, he had taken the signatures on the pullandas recovered.
64. It was submitted by Ld. Counsel for accused that the samples that were produced in court which were sent to FSL did not have any signatures of the accused on the said samples. It was submitted that the prosecution has failed to prove that the samples that were sent to the FSL and based on which the FSL result opining, the substance to be contraband was received, were the same samples that were drawn from the alleged recovery made against the accused. It was submitted that the samples produced in court bore the signatures of the recovery witnesses PW-7 and PW-11. It is pertinent to mention that both the witnesses have admitted that neither of them have stated in their statement under section 161 Code of Criminal Procedure that they had signed the samples that were drawn from the alleged recovery. Therefore, the prosecution has again failed to prove that the samples sent to the FSL were the same samples that were drawn from the alleged recovery. That the PW-7 and PW-10 in his cross examination has admitted that the IO had taken signatures of the accused on the pullandas. It was further admitted that the case properties identifying in court do not bear the signatures of the accused and that PW-7 had further admitted that he did not state in his statement under section 161 Cr.P.C. that he had signed on the Pullandas. It was submitted FIR No 98/2017 State Vs.Dilshad & Anr. Page No. 60/65 Digitally signed by ARUL ARUL Date:
VARMA VARMA 2023.09.06 17:38:15 -0300
that PW-7 admitted that the samples he is identifying in court bear his signatures. The IO in his cross-examination has specifically stated that he had taken the signatures of the accused on the Palandas. It was further admitted that the samples he is identifying in court as the ones that were sent to the FSL did not bear the signature of the accused. He made a voluntary statement that at the time when the seizure was made, he had taken the signatures, thus clearly proving that the samples that were sent to FSL, based on which the official result has come and the samples produced in court are not the same samples that are alleged to have been seized from the accused.
65. It was thus submitted that even in the Maal-Khana register, it has not been mentioned that in the description of the properties deposited that the samples had any signature of the accused or the recovery witnesses, which again proves that the samples that were deposited in the Maal- Khana were not the same samples that were drawn from the alleged recovery. That even in the FSL result it has not been stated that the samples received by the FSL had any signatures of the accused on them in the description of the samples. Reference in this regard is again made to the decision in the case of Noor Aga.
66. In essence, Ld. Counsel for accused submitted that there is inconsistency with respect to the presence of signatures of either the accused persons or FIR No 98/2017 State Vs.Dilshad & Anr. Page No. 61/65 Digitally signed by ARUL ARUL Date:
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of recovery witnesses on the seized pullandas, and thus this inconsistency makes the case of the prosecution doubtful. This contention cannot be countenanced inasmuch as Ld. Counsel could not adduce on record any law or provision which makes it mandatory for the investigating agency to take signatures of accused persons or recovery witnesses on the seized pullandas/parcels itself. What the Court has to ensure is the sanctity of the chain of custody and that the seal was not tampered with. Noor Aga's (supra) case would not be applicable as in the said case the seal was not deposited in Malkhana nor was the Malkhana register produced in evidence. However, in the present case, PW-13 ASI Mahesh Chand who was the MHC(M) deposed that on 03.02.2017 he had issued the official seal bearing no 7BPSNB DELHI to ASI Krishan Kumar and on 25.05.2018, the said seal was deposited with Malkhana by ASI Krishan Kumar. The entry regarding the issuance and deposit of the seal was proved by the witness as Ex. PW13A. Further, the Malkhana Register was produced in Court in this case by PW-5 ASI Jag Narayan and entries therein were also proved before the Court. Similarly, Vijay Pandey (supra) is also inapplicable inasmuch as in that case the identity of the sample stated to have been seized from the accused was not conclusively was not established by the prosecution. However, in this case, the identity of all the seized samples have been duly identified not only by the police witnesses but also by the Senior Scientific Officer from FSL. FIR No 98/2017 State Vs.Dilshad & Anr. Page No. 62/65
Digitally signed by ARUL ARUL VARMA VARMA Date:
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67.There is a presumption u/s 54 of the NDPS Act which lays down that in trials under the NDPS Act, it may be presumed that the accused has committed an offence, unless and until the contrary is proved. The expression' unless and until the contrary is proved', clearly imposes the burden of proving that possession of prohibited substance is legal, or that he was not so found in possession, is on the accused himself. In this case, neither the presumption could be rebutted, nor could the accused explain the circumstances appearing in evidence against them.
68. Furthermore, u/s 35 of NDPS Act, the Court shall presume the existence of a culpable mental state on the part of the accused, and it is incumbent upon the accused to prove the fact that he had no such mental state with respect to the act. It has further been clarified in Section 35(2) that the accused has to prove the above, beyond reasonable doubt and not merely by establishing preponderance of probabilities. In the present case, as discussed aforesaid, the prosecution surely has established its case beyond reasonable doubt but the accused persons could not demonstrate that they did not have the requisite culpable mental state.
69. Furthermore, nothing could be elicited in the testimony of the prosecution witnesses, and nothing therein could be controverted by the accused. The veracity of the testimony of the witnesses was cogent and credible, and complete reliance can be placed upon them. In this context, it would be pertinent to reproduce the following extracts of Jagjeet Singh Vs State FIR No 98/2017 State Vs.Dilshad & Anr. Page No. 63/65 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.09.06 17:38:45 -0300 (2015 )219 DLT 199 "All these witnesses were subjected to lengthy cross- examination, however, nothing material could be elicited to discredit their testimony. It has further come in their statements that some independent persons were tried to be joined, however, none agreed. Ordinarily, the public at large show their disinclination to come forward to become the witness. If the testimony of the police officer is found to be reliable and trustworthy, the Court can definitely act upon the same. The Court cannot disbelieve the testimony of police officials solely on the presumption that a witness from the department of police should be viewed with distrust. This is also based on the principle that quality of the evidence weights over the quantity of evidence. These aspects have been highlighted in State of UP v. Anil Singh, 1989 SCC (Cri) 48; State (Govt. of NCT of Delhi) v. Sunil, 2001 SCC (Cri) 248; Ramjee Rai v.
State of Bihar, (2007) 2 SCC (Cri) 626; Kashmirilal v. State of Haryana, (2014) 1 SCC (Cri) 441.
Appreciating the evidence on record on the anvil of the aforesaid principles, there is no acceptable reason to discard the testimony of the official witnesses which is otherwise reliable and trustworthy."
CONCLUSION
70. Ergo, in view of the reasons hereinabove discussed in extenso, this Court is of the considered view that the prosecution has proved beyond reasonable doubt that the accused Dilshad was found in possession of 240 Gram on 24.06.2017, at about 02:00 Am Near Sarita Vihar underpass on road leading towards Okhla Phase-II New Delhi and is therefore convicted for the offence punishable under Section 21(b) of NDPS Act. Further, Saleem was found in possession of 260 Gram of heroine on 24.06.2017, at about 02:00 Am Near Sarita Vihar underpass on road leading towards Okhla Phase-II New Delhi and is therefore FIR No 98/2017 State Vs.Dilshad & Anr. Page No. 64/65 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.09.06 17:38:56 -0300 convicted for the offence punishable under Section 21(c) of NDPS Act.
71. After complying with the provisions of Section 40 of the NDPS Act, the name and place of business and residence of the convict, nature of the contravention, the factum of the accused being convicted, be published in two English and two Vernacular newspapers and in news websites.
Accordingly, copy of this order be sent to the DCP concerned, to do the needful.
72. Put for arguments on quantum of sentence on 16.09.2023 Digitally signed by ARUL ARUL VARMA Announced in the open court VARMA Date:
2023.09.06 on 06.09.2023 17:39:03 -0300 (ARUL VARMA) ASJ-04 & Spl. Judge (NDPS) South-East District Saket Courts, New Delhi FIR No 98/2017 State Vs.Dilshad & Anr. Page No. 65/65