Delhi District Court
State vs . 1 Ahed Khan, on 5 July, 2011
IN THE COURT OF MANOJ JAIN
ASJ/SPECIAL JUDGE (NDPS): OUTER DISTRICT
ROHINI COURTS:
DELHI
Sessions Case No.11/2009
Unique ID No.
FIR No.79/08
PS Narcotics Branch
u/s 21/22/25/25-A/29/9A NDPS Act
& 14 Foreigners Act
State Vs. 1 Ahed Khan,
S/o Ismail Khan,
R/o H. No. A-313,
Black Gold Apartment,
Greater Noida & Kali Mati,
Ravi Bhawan-14,
Kathmandu, Nepal.
2 Albert Bernard @ Tony,
S/o Antony Bernard,
R/o 14 Ikeja, Surulere,
Lagos, Nigeria.
(Already convicted)
3 Neeraj Yadav,
S/o Deep Singh Yadav,
R/o E-160, Delta-1 Sector,
Greater Noida, UP &
Shyam Nagar,
Gandhi Market,
Behind Church, Fatta, UP.
4 Ajay Jain,
S/o Shiv Kumar Jain,
R/o 161/107, Pipliyarao,
Inder Puri Colony, Indore,
Madhya Pradesh.
Date of Institution: 10.10.2008
Date of conclusion of Arguments: 31.05.2011
Date of pronouncement of Judgment: 05.07.2011
FIR No. 79/08 PS Narcotic Branch page 1 of 47
JUDGMENT
1 All the accused persons have been sent up to face trial by PS Narcotics Branch for commission of offences under Sections 21/22/25/25-A/29/9A of Narcotic Drugs and Psychotropic Substances Act (herein after referred to as 'NDPS Act') and accused Albert Bernard has also been additionally charge-sheeted for offence under Section 14 of Foreigners Act.
2 Mobile number 9990363250 was under surveillance. Interception was being done under proper authorization and sanction. On 25.07.2008 Ct Sandeep of Monitoring Room informed SI Satyawan that there was some chat between that mobile and mobile number 9958463112. SI Satyawan went to Monitoring Room and heard such recorded conversation and learnt that user of mobile number 9990363250 was asking user of mobile number 9958463112 to meet him between 1.30 PM to 3.00 PM. In the meanwhile, one secret informer also reached at PS Narcotics Branch and informed SI Satyawan that one person Ahed Khan, who was resident of Greater Noida and who used to supply heroin and drugs abroad through Nigerian, would come near Janak Puri District Centre in Indica car bearing no. DL-3CAY-1571 at 2.00 PM that day and would strike deal with Nigerian and if raided, he could be caught while supplying or while taking delivery of some contraband. It would be significant to mention that according to the case of prosecution, said mobile number 9990363250 was also of same Ahed Khan. Informer was produced before SHO M.L. Sharma who satisfied himself about the credentials of information and telephonically informed ACP M.S. Dabas who FIR No. 79/08 PS Narcotic Branch page 2 of 47 directed to conduct raid right away. Accordingly, a raiding team left PS Narcotics Branch and reached near the spot. At about 2.00 PM, same Indica car was spotted which overtook the stationary official vehicle from behind. Indica was moving towards Peera Garhi direction and took U-turn from Vikas Puri red light and official vehicle chased said Indica car. One person, who was on the rear seat of that Indica car, alighted down. He was identified by the secret informer as same Ahed Khan. Ct. Sohan Pal and Ct. Jogender were asked to chase him and were asked to keep eye on him. At about 2.50 PM, accused Ahed Khan returned to the spot along with one Nigerian. Ct. Sohan Pal and Ct. Jogender were maintaining distance from them. In the meanwhile, accused Ahed Khan took out one black color momi thaili from right pocket of his wearing cargo pants and handed over the same to said Nigerian and then they both started moving in opposite directions. They both were immediately overpowered. Name of Nigerian was ascertained as Albert Bernard. They both were made aware about their legal rights as envisaged under Section 50 NDPS Act and separate notices under Section 50 NDPS Act were prepared and served upon them. They both refused to avail their legal rights. Accused Albert Bernard was searched and same black color momi thaili was recovered from his possession. It was found containing one white color polythene containing light brown color powder which, when tested with the help of field testing kit, was found to be heroin. Its total weight was found to be 500 grams. Two samples of five grams each were separated and were put in separate transparent thailies and pullandas were prepared with the help of white cloth. Remaining 490 grams of smack FIR No. 79/08 PS Narcotic Branch page 3 of 47 was put back in the same polythene and with the help of white cloth, pullanda was prepared. FSL Form was filled. All the pullandas and FSL form were sealed by SI Satyawan at the spot. Thereafter, accused Ahed Khan was also searched but nothing incriminating or objectionable was recovered from his possession. SI Satish Rana was deputed for further investigation and he reached the spot for further requisite investigation. Both accused were brought to PS Narcotic Branch. Accused Ahed Khan made disclosure claiming that some chemicals, synthetic heroin and Ephedrine had been kept by him at the house of his driver Neeraj situated at E-160, Delta-1, Sector, Greater Noida and he could get the same recovered. Proceedings under Section 42 NDPS Act were carried out and police party left PS at about 5.30 AM on 26.07.2008 for said house of accused Neeraj. Accused Ahed Khan accompanied the police party. Neeraj was found in the house and was made aware about the facts of the case and was served with notice under Section 50 NDPS Act He also refused to avail his legal rights. At the instance of accused Neeraj and of accused Ahed Khan, 27 bottles of chemicals, 40 kgs Ephedrine and 21 kgs synthetic heroin were recovered from that house. Samples were drawn and requisite documentation was done and case property was deposited in the malkhana. Police remand was obtained of all the accused persons and during police remand, accused Ahed Khan made another disclosure statement on 27.07.2008 claiming that he had kept more contraband at his house i.e. H. No. 313, Black Gold Apartment, Greater Noida, UP. Police party went there with him and from his house 2.5 kgs of Ephedrine was recovered. Samples were drawn and requisite documentation FIR No. 79/08 PS Narcotic Branch page 4 of 47 was done. During investigation, police also deciphered that accused Ajay Jain was also involved in the conspiracy as according to accused Ahed Khan, he was the source of supply. Police also relied upon CDR (Call Details Record). It was also learnt that accused Ajay Jain was already in custody in one case under NDPS Act and was lodged in Indore Jail. With the permission of the Court, police went to Indore and made interrogation from accused Ajay Jain at Indore Jail who also admitted his involvement in the matter.
3 It is in these circumstances that charge-sheet was filed and simultaneously, a request was made that production warrants qua accused Ajay Jain be issued.
4 Charge-sheet was filed on 10.10.2008 before the Court of Ms. Bimla Kumari, the then Special Judge (NDPS), Rohini, Delhi. Learned Special Judge issued production warrants against accused Ajay Jain.
5 FSL result was placed on record on 03.11.2008. On that day, accused Ajay Jain was also produced from Indore Jail pursuant to production warrants but IO was not present and, therefore, accused Ajay Jain could not be formally arrested and matter was adjourned.
6 Arguments on charge were heard by the Court of Sh. V.K. Bansal, learned ASJ/Special Judge (NDPS), Rohini Courts, Delhi and vide order dated 24.04.2009, accused Albert Bernard @ Tony was charged under Sections 21 & 29 of NDPS Act and under Section 14 of Foreigners Act. Accused Ajay Jain FIR No. 79/08 PS Narcotic Branch page 5 of 47 was charged under Section 29 NDPS Act & under Section 21 read with Section 29 NDPS Act & under Section 25 read with Section 29 NDPS Act. Accused Ahed Khan was charged under Sections 29/21 NDPS Act, under Section 21 NDPS Act & under Section 25 read with Section 29 NDPS Act. Simultaneously, accused Neeraj Yadav was also charged under Sections 29/21 NDPS Act and under Section 25 read with Section 29 NDPS Act. All the accused persons pleaded not guilty and claimed trial to their respective charges.
7 Same day i.e. 24.04.2009, case was transferred and was received by this Court on 29.04.2009.
8 It would be also pertinent to mention here that on 18.02.2011, charge was partially amended and all the three accused were also ordered to be charged under Section 25A read with Section 29 NDPS Act.
9 Prosecution was directed to adduce evidence and has examined eighteen witnesses viz PW1 Ct. Dharmender (Malkhana Munshi), PW2 HC Ishar Singh (duty officer), PW3 Suhil Kumar Singh (Owner of H. No. A-313, Black Gold Apartment), PW4 HC Mahesh Kumar (MHCM), PW5 M.S. Dabas (ACP/recovery witness), PW6 Ct. Jogender (recovery witness), PW7 HC Mohan Singh (recovery witness), PW8 HC Mahesh Chand (duty officer), PW9 HC Kanwal Singh (duty officer), PW10 Ct. Dalbir Singh (DD Writer), PW11 Deepak Kumar (Nodal Officer, Idea Cellular Ltd), PW12 Bhuvanand (owner of H. No. E-160, Delta Sector-1, Noida, Delhi), PW13 SI Satish Rana (second investigating/recovery witness), PW14 Pawan FIR No. 79/08 PS Narcotic Branch page 6 of 47 Singh (Nodal Officer Idea Cellular), PW15 Insp. M.L. Sharma (SHO PS Narcotic Branch/recovery witness), PW16 B.M. Jain (Deputy Secretary Home), PW17 SI Satyawan (first investigating officer/recovery witness) and PW18 Dr. Madhulika Sharma (forensic expert).
10 It would be, however, very pertinent to mention that as far as accused Albert Bernard is concerned, he chose to plead guilty before the Court during the trial. His confessional statement was recorded on 06.01.2010 and keeping in mind his voluntary plea of guilt and material on record, he was held guilty under Section 21 read with Section 29 NDPS Act and also under Section 14 Foreigners Act and was accordingly sentenced as under:
(i) For offence u/s 21/29 NDPS Act, he is sentenced to undergo RI for a period of 18 months and fined Rs.
50,000/- in default thereof he would further undergo SI for a period of six months. No separate sentence is being awarded for offence u/s 29 NDPS Act.
(ii) For offence u/s 14 of Foreigners At, convict is sentenced to SI for a period of one year and fined Rs.
1,000/- in default thereof he would further undergo SI for a period of one month.
11 Statements of remaining three accused persons under Section 313 Cr.P.C. were recorded and all the three accused persons pleaded their innocence and denied their involvement or any sort of inter-connection.
FIR No. 79/08 PS Narcotic Branch page 7 of 47 12 Accused Ahed Khan also examined DW1 Dilshad Ali and DW2 Harender Bhati in his defence. DW1 Dilshad is alleged to be owner of Indica car in question and according to him, he had never given his vehicle on hire to anyone. DW2 Harender is milkman and according to him, police had illegally lifted accused Ahed Khan 24.07.2008.
13 I have heard Ms. Purnima Gupta, learned Addl. P.P. and learned defence counsels and carefully perused the entire material available on record.
14 Learned Addl. P.P. has contended that prosecution has been able to prove its case to the hilt. She has argued that there are three set of recoveries. First of all, accused Ahed Khan was caught red-handed while he was supplying contraband to convict Albert Bernard. She has also argued that such fact stood substantiated automatically as accused Albert Bernard confessed his guilt before the Court and on the basis of his such confession, he was convicted as well. She has argued that case of prosecution is explicit and as per testimony on record, contraband, as recovered from the possession of accused Albert Bernard, had been supplied by accused Ahed Khan to him under the gaze of police and, therefore, prosecution has been able to prove the fact that such contraband had been supplied by accused Ahed Khan. She has also argued that there was already interception of mobile of accused Ahed Khan and from the intercepted calls, it became very much evident that accused Ahed Khan was to supply contraband to one Nigerian and even secret informer corroborated such fact and, therefore only, raid was conducted FIR No. 79/08 PS Narcotic Branch page 8 of 47 and accused Ahed Khan and convict Albert Bernard were apprehended red-handed. She has argued that accused Ahed Khan made disclosure statement and pursuant to such disclosure, chemicals and synthetic heroin (controlled substance) were recovered from the house of accused Neeraj and such recovery was at the instance of accused Ahed Khan and accused Neeraj. She has also contended that thereafter as per second disclosure statement made by accused Ahed Khan, 2.5 kgs Ephedrine was recovered from the house of accused Ahed Khan and all such recoveries have been duly proved and conspiracy also stands proved. She has also argued that as far as accused Ajay Jain is concerned, he could not be formally arrested but fact remains that the moment productions warrants were issued by the Court, he was liable to be presumed under deemed arrest in the present case and moreover call records also raise accusing finger towards his complicity.
15 Sh. S.S. Dass has defended accused Ajay Jain as well as Ahed Khan. Sh. Santosh Singh Bhartwal has defended accused Neeraj Yadav. Written arguments have also been filed.
16 Sh. Dass has argued that as far as accused Ajay Jain is concerned, there is nothing on record which may connect him with the recovery in question. He has also contended that there is no fact which may show his involvement in any manner whatsoever. According to him, intercepted transcription has neither been produced nor proved. He has argued that on the basis of disclosure coming from the mouth FIR No. 79/08 PS Narcotic Branch page 9 of 47 of co-accused, accused Ajay Jain cannot be held liable. He has also contended that investigating agency never thought of formally arresting accused Ajay Jain which fact itself indicates that even investigating agency was unsure about the involvement of accused Ajay Jain.
17 Regarding accused Ahed Khan, it has been argued that there is nothing which may indicate that accused Ahed Khan had come in Indica car bearing DL3CAY-1571. Neither owner nor driver of said vehicle was interrogated during investigation. He has argued that ownership record of said vehicle was never produced before the Court which suggests that investigating agency is trying to suppress some crucial fact. He has also argued that if at all accused Ahed Khan was having his driver with the name of Neeraj then why such Neeraj was not asked by Ahed Khan to drop him and to collect him from the spot. According to him, defence took lot of pain to locate the owner of the vehicle and to produce him in the Court as defence witness and such witness has also supported the defence story. He has also contended that there is no investigation as to where accused Albert Bernard was residing and where accused Ahed Khan had allegedly gone after alighting down from alleged Indica car. He has also argued that witnesses are coming up with different color with respect to Indica car. He has also contended that there is no explanation as to why independent persons were not joined. Moreover, the case property was not properly kept and sealed and when it was produced in the Court, it was found in loose and tampered condition and, therefore, prosecution has not been able to substantiate its case in any manner whatsoever.
FIR No. 79/08 PS Narcotic Branch page 10 of 47 It has also been additionally argued that there is no compliance of material statutory provisions as envisaged under sections 42/50/52/55/57 of NDPS Act. He has also relied upon various authorities which I would advert to at appropriate places.
18 Sh. Bhartwal has also contended that accused Neeraj has been falsely implicated and he was lifted from railway station and was falsely arrested in the present case.
19 I have given my thoughtful consideration to the rival contentions and carefully perused the entire material available on record.
20 It would be appropriate if I take up the case of accused Ajay Jain first of all.
21 Conspiracy is, more often than not, hatched in secrecy and there is usually no direct or specific evidence to prove element of conspiracy. It has to be gathered from attendant circumstances.
22 As per case of prosecution, there was some information with the police and, therefore only, there was interception of mobile calls. Letter was written by Sh. Alok Verma, Joint Police Commissioner (Crime), Delhi to Sh. G.S. Patnaik, Principal Secretary (Home) on 24.06.2008 requesting therein that two mobile phones be put under surveillance and permission in this regard was accordingly accorded in the interest of law & order and public safety. According to said FIR No. 79/08 PS Narcotic Branch page 11 of 47 letter, one Ayub Khan having number 9990363250 and one Obinna Stanliy having mobile number 9810634189 were operating clandestinely and it was not possible to acquire information by any other reasonable mean regarding the nefarious activities concerning drug trafficking and, therefore, request was made to keep watch over those telephonic conversation. It would be also important to mention that their mobile numbers were already under observation in Narcotics Branch vide GNCTD orders dated 22.05.2008. No such order was made part of challan. Even letter written by Joint Commissioner of Police addressed to Sh. G.S. Patnaik was not made part of the challan. Sh. G.S. Patnaik, Principal Secretary (Home) accorded sanction for interception for period of sixty days i.e. from 24.06.2008 to 22.08.2008 vide order dated 30.06.2008 and such order has been proved as Ex. PW16/A by PW16 Sh. B.M. Jain Deputy Secretary (Home).
23 As per PW17 SI Satyawan, on 25.07.2008, he was present in IO room of PS Narcotic Branch and at about 11.50 AM Ct. Sandeep from Monitoring Room came to him and told him about conversation between said two intercepted mobile numbers and he accordingly went to Monitoring Room and himself heard the recorded conversation disclosing wish of user of mobile number 9990363250 to hold meeting with user of mobile number 9958463112 between 1.30 PM to 3.00 PM. A secret informer happened to come just at that very moment and told SI Satyawan that Ahed Khan would come at Janak Puri, District Centre at 3.00 PM in Tata Indica car bearing no. DL-3CAY-1571. He produced the informer before SHO Insp. M.L. Sharma who made queries from informer and satisfied FIR No. 79/08 PS Narcotic Branch page 12 of 47 himself and then telephonically apprised ACP M.S. Dabas about information who then instructed for appropriate legal action.
24 PW17 SI Satyawan has nowhere bothered to connect the intercepted calls or the conversation which he heard that day with the information given by secret informer. Apparently, as per case of prosecution, there was supposed to be a crucial connection between the intercepted conversation and the information given by the secret informer but PW17 SI Satyawan has not bothered to throw any light with respect to such connection. Surprisingly, intercepted calls or the transcript thereof was not even placed on record. Needless to emphasis that it was a crucial piece of evidence. After all, the interception was with due permission and sanction. Nobody could have been prevented investigating agency from placing on record electronic piece of evidence before the Court or for that matter the transcript of the actual conversation. For the reason best known to the investigating agency, such transcript has been held back. SI Satyawan has merely deposed that as per conversation, user of one mobile number 9990363250 wanted to hold meeting with the user of another mobile but nobody knows as to where such meeting was going to take place and what the exact conversation was? Prosecution could have very easily placed on record intercepted calls as well as transcript. It could have taken the voice sample of accused Ahed Khan in order to connect him with said mobile number 9990363250. After all, SI Satyawan had himself heard recorded conversation and he could have also identified voice of the caller but no necessity was felt in this direction either.
FIR No. 79/08 PS Narcotic Branch page 13 of 47 25 PW17 SI Satyawan has admitted in his cross- examination that he heard the conversation for the first time on 25.07.2008 and before that he had no information about those telephone numbers. He, however, corrected himself by claiming that as far as telephone number 9990363250 was concerned, he knew about the same for last one month and one informer had come to him a month before from 25.07.2008 and disclosed that user of telephone number 9990363250 used to deal in drugs. This was a vital piece of information but for reason best known to the investigating agency, such fact was not reduced in writing then and there. PW17 SI Satyawan does not remember whether during that period he made investigation as to who was owner/possessor/subscriber of said mobile number. He merely claimed that he reduced that information in writing and apprised his superior about the same and his superiors might have forwarded the proposal for interception on the basis of such information.
26 Let me see the testimony of two of his superiors i.e. SHO-Insp. M.L. Sharma and ACP M.S. Dabas.
27 PW15 Insp. M.L. Sharma has merely deposed that on 25.07.2008, SI Satyawan along with secret informer came to his office and told him about intercepted calls and also about the facts revealed to him by informer. He deposed that before that nothing was done by him in the present case. He deposed that permission was sought for interception of call but he could not tell as to when such permission was sought. According to him, it was done at the level of ACP and above.
FIR No. 79/08 PS Narcotic Branch page 14 of 47 According to him, SI Satyawan might have given information in this regard to ACP. This does not seem to be digestible at all. SI Satyawan would not have dared to contact ACP directly without bothering to take his immediate superior i.e. Insp. M.L. Sharma in confidence. Moreover, Insp. M.L. Sharma does not know any further detail. According to him, permission order might have been received by ACP and he never received any such order regarding interception nor did he see any such order. He also deposed that he did not know about surveillance of calls. He deposed that he did not see transcript of the call and only IO and ACP could tell about it as they only knew about such interception. Thus, his testimony does not seem to be helpful.
28 Let me now see the testimony of PW5 ACP M.S. Dabas. He has also deposed that on 25.07.2008 he was telephonically apprised by Insp. M.L. Sharma that one Ahed Khan, who was resident of Greater Noida and who used to manufacture heroin and drugs and used to send those things to abroad through Nigerians would come that day in Tata Indica bearing no. DL-3CAY-1571 at Janak Puri District Centre for handing over consignment. He also deposed that SHO also apprised that earlier also calls had been intercepted which corroborated secret information. No such fact was ever deposed by SHO or for that matter by IO SI Satyawan. When Sh. M.S. Dabas was cross-examined by the defence, he admitted that there was information earlier also as there was interception of calls but he deposed that he had not seen any communication in this regard at any point of time. Thus, regarding previous interception, even PW5 ACP M.S. Dabas is FIR No. 79/08 PS Narcotic Branch page 15 of 47 not found to be of much help and he has rather passed the buck on to DCP. However, concerned DCP has neither been cited as witness nor examined by the prosecution. Thus, a very vital piece of evidence which could have proved handy to the prosecution i.e. electronic piece of evidence and transcript thereof has not been produced before the Court. Thus a very crucial link for unearthing conspiracy has gone begging.
29 Let me now find out the legally admissible evidence against accused Ajay Jain.
30 His involvement emanates merely from the disclosure statement made by accused Ahed Khan. I have seen such disclosure statement made by accused Ahed Khan. His first disclosure statement has been proved as Ex. PW7/F. It is dated 26.07.2008. In such disclosure statement, he claimed that he had a friend with the name of Jain in Nepal who gave the reference of accused Ajay Jain of Indore and told him that if he was in need of any chemical then he could talk on that mobile number of accused Ajay Jain. He further claimed in his disclosure statement that he met Ajay Jain once in one hotel of Indore and he did not know his house and his one person used to bring material to Delhi and he used to talk to him on his mobile numbers. He also claimed that Ajay Jain was also known as Vinod and that he could get him apprehended and could get recovered chemicals from the house of Neeraj. He claimed that heroin which he had supplied to accused Albert Bernard @ Tony was supplied to him by accused Ajay Jain @ Vinod.
FIR No. 79/08 PS Narcotic Branch page 16 of 47 31 Only that part of disclosure statement is admissible in evidence which relates to discovery of any fact. Nothing else. Not even motive. Any other fact mentioned in any such disclosure statement isn't legally admissible and cannot be used by prosecution. If at all accused Ahed Khan had made disclosure statement about the involvement of accused Ajay Jain, it was still incumbent on the part of investigating agency to have collected other connecting material against accused Ajay in order to positively show that accused Ajay Jain was also part of conspiracy or supplier of heroin. There is no material before me which may show that accused Ajay Jain was having any business of chemicals in Indore.
32 Accused Ajay is reportedly having two mobile numbers i.e. 09926000330 & 09755522714. As far as mobile number 09755522714 is concerned, there is nothing on record which may even remotely show that it was owned by accused Ajay Jain. No investigation is there with respect to said mobile. No CDR of said mobile phone has been placed on record and nobody even knows as to who is the owner or subscriber of that phone. As regards second mobile number 09926000330, I would refer to the testimony of PW14 Sh. Pawan Singh. He is nodal officer of Idea Cellular Ltd and according to him, such mobile was in the name of accused Ajay Jain. He also proved the certified copy of application as well as ID documents and those were retained on record and were exhibited as Ex. PW14/A. These are running into 12 pages. I am really at bay to understand as to how prosecution can prove anything out of those documents. Even if it is assumed that such mobile number was of Ajay Jain in question, it is not going to serve FIR No. 79/08 PS Narcotic Branch page 17 of 47 any purpose as CDR of said mobile phone number has not been placed on record what to speak of proving the same by placing requisite certificate under Section 65 B of Indian Evidence Act.
33 It is settled position of law that disclosure statement made by co-accused cannot be pressed into service and cannot be said to be self-sufficient for holding him guilty. Reference be made to one Judgment of apex court given in the case of Hari Charan Kurmi Vs. State of Bihar AIR 1964 SC 1184. Though, said case was under Indian Penal Code yet the following observations made therein are noteworthy.
"Thus, though confession may be regarded as evidence in that generic sense because of the provisions of Section 30, the fact remains that it is not evidence as defined by Section 3 of the Act. The result, therefore, is that in dealing with a case against an accused person, the Court cannot start with the confession of a co-accused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence.
. . .that the confession of a co-accused person cannot be treated as substantive evidence and can be pressed into service only when the Court is inclined to accept other evidence and feels the necessity of seeking for an assurance in support of its conclusion deducible from the said evidence."
FIR No. 79/08 PS Narcotic Branch page 18 of 47 34 There is no recovery from the possession of accused Ajay Jain. None of the three recoveries i.e. first recovery from convict Albert Bernard, second recovery from the house of accused Neeraj Yadav and third recovery from the house of accused Ahed Khan, can be said to be a recovery in furtherance of criminal conspiracy as far as accused Ajay Jain is concerned. Resultantly, I do not find any material against accused Ajay Jain. He is, therefore, acquitted of all the charges levelled against him in the present case.
35 Accused Ajay Jain be released from jail forthwith if not required in any other case. Surprisingly, prosecution and investigating agency slept over the matter and did not even make a formal prayer before the court to arrest him in the present case. This was despite the fact that court had even reminded and cautioned them in this regard. Mere issuance of Production Warrants could not have served the requisite purpose. It is expected that investigating agency would show real alacrity in such type of matters in future.
36 There are three separate instances of recoveries. These are as under:
(i) First recovery: 500 grams of heroin was allegedly supplied by accused Ahed Khan to accused Albert Bernard on 25.07.2008 and such act of supplying/handing over of contraband by accused Ahed Khan to convict Albert Bernard was witnessed by police. Witnesses, who can prove such recovery, are PW6 Ct. Jogender, PW7 HC Mohan Singh and PW17 SI Satyawan.
FIR No. 79/08 PS Narcotic Branch page 19 of 47
(ii) Second recovery: Second recovery is dated 26.07.2008 and is from the house of accused Neeraj and was at the instance of accused Ahed Khan as well. House of accused Neeraj is situated at E-160, Delta-1 Sector, Greater Noida, UP and besides several chemicals, 40 kgs of Ephedrine and 21 kgs of synthetic heroin was recovered from said house.
Concerned recovery witnesses are PW5 ACP M.S. Dabas, PW13 SI Satish Rana (main investigating officer), PW15 SHO-Insp. M.L. Sharma and PW17 SI Satyawan.
(iii) Third recovery: Third recovery is dated 27.07.2008 and is from the house of accused Ahed Khan situated at A-313, Black Gold Apartment, Greater Noida, UP. Such recovery was at the instance of accused Ahed Khan only and from his house 2.5 kgs Ephedrine had been recovered. Concerned recovery witnesses are PW13 SI Satish Rana and PW17 SI Satyawan.
37 Let me now take up each recovery one by one.
38 Regarding first recovery, on the basis of the secret information, police team had left PS Narcotics Branch. PW17 SI Satyawan was first investigating officer and he had led the police team. I have seen his testimony very carefully. Secret information was reduced in writing and informer was even produced before SHO who telephonically intimated ACP about the contents of secret information who instructed for appropriate legal action. SHO and ACP have also corroborated SI Satyawan in this regard. There is found to be due compliance of Section 42 NDPS Act as well. Information was FIR No. 79/08 PS Narcotic Branch page 20 of 47 reduced in writing vide DD No. 12A which has been proved as Ex. PW5/F. According to PW17 SI Satyawan, he took along his field testing kit, electronic weighing machine and IO bag at the time of departure from PS by recording DD No. 13A which has been proved as Ex. PW17/A. IO-SI Satyawan made efforts to join public persons. Since no one was found willing, raiding team consisting of PW17 SI Satyawan, PW6 Ct. Jogender, PW7 HC Mohan Singh, Ct. Sohan Pal, informer and Ct. Tavender (driver of official vehicle) reached near Janak Puri District Centre and took position. At about 2.00 PM, one Tata Indica car having metallic color having number DL-3CAY-1571 overtook official vehicle from right side. Indica car was going towards Peera Garhi and took U-turn from Vikas Puri red light. Official vehicle also followed said Indica and such Indica car stopped near Kangra Niketan Bus Stand and official vehicle was stopped at a distance of 10 mtrs from Indica car. From the rear set of Indica car, accused Ahed Khan alighted down and he was identified by informer and thereafter informer left the spot. Accused started moving towards New Mahavir Nagar and SI Satywan instructed PW6 Ct. Jogender and Ct. Sohan Pal to chase him and remaining staff remained in official vehicle. At about 2.50 PM, accused Ahed Khan returned with one Nigerian and started conversing with Nigerian. They were at a distance of 25 mtrs from the official vehicle and after about 3- 4 minutes, accused Ahed Khan took out one black color polythene from right pocket of his wearing cargo pants and gave the same to said Nigerian who grabbed the polythene in his right hand. Thereafter, they both started moving in different directions and they both were overpowered by the raiding team. Naturally, PW17 SI Satyawan is referring Albert FIR No. 79/08 PS Narcotic Branch page 21 of 47 Bernard as aforesaid Nigerian who has already been held guilty and convicted on the basis of his confessional statement. Thereafter, both the accused were made aware about their legal rights and notices under Section 50 NDPS Act were prepared and served upon accused persons. There is found to be due compliance of Section 50 NDPS Act. Fact remains that as far as accused Ahed Khan is concerned, his search did not yield recovery of any contraband from his conscious possession but heroin supplied by him to his co- accused/convict Albert Bernard was recovered from the physical possession of accused Albert Bernard and was seized. Sampling proceedings have been appropriately proved by the concerned witnesses. FSL form was filled at the spot and pullandas were sealed at the spot by PW17 SI Satyawan who affixed his seal of 1 CPS NB DELHI on all the three pullandas and FSL form. Seal, after use, was given to PW7 HC Mohan Singh. Seizure memo has been proved as Ex. PW6/D and all the three sealed pullandas, FSL form and carbon copy of seizure memo were sent to PS Narcotics Branch through PW6 Ct. Jogender who left the spot with aforesaid articles in the same official vehicle and handed over those articles to Insp. M.L. Sharma who put his seal of 1SHO NBR DELHI on all the pullandas and FSL form and also mentioned FIR number and thereafter case property was handed over to PW4 HC Mahesh Kumar (MHCM) who made entry Ex. PW4/A in Register No. 19 and Insp. M.L. Sharma recorded DD No. 18A (Ex. PW2/B) with respect to deposit of case property.
39 It would be important to see as to what was the result of FSL. FSL result has been proved by PW18 Dr. FIR No. 79/08 PS Narcotic Branch page 22 of 47 Madhulika Sharma, Assistant Director, FSL, Rohini, Delhi. Her report is Ex. PW18/A. Report of FSL is even otherwise per se admissible in evidence under Section 293 Cr.P.C. and sample Mark A was found containing paracetamol, caffeine, acetylcodeine, monoacetylmorphine, diacetylmorphine & alprazolam and the percentage of diacetylmorphine was 2.5 per cent and alprazolam as 40.5 per cent. As far as diacetylmorphine is concerned, percentage was found to be 2.5 per cent which means that actual quantity of heroin is 12.5 grams only. Quantity in question, therefore, becomes intermediary quantity. This figure has been arrived after extrapolation of the purity percentage. As far as other chemicals i.e. paracetamol, caffeine, acetylcodeine, monoacetylmorphine are concerned, they do not stand covered within the ambit and scope of NDPS Act. Even alprazolam is not covered in the Schedule attached to NDPS Rules.
40 I would like to reiterate that accused Albert Bernard made clean breast of his guilt and his confessional statement was recorded on 06.01.2010. In his confessional statement, he admitted that he was found in possession of heroin (actual quantity of 12.5 grams) and he also proved his confessional application as Ex. D-1. He also claimed that he understood the consequences of his pleading guilty before the Court and also claimed that his plea of guilt was voluntary and was not under any force or coercion. He admitted the case of prosecution to the aforesaid extent and prayed for disposal of his case.
FIR No. 79/08 PS Narcotic Branch page 23 of 47 41 Sh. Dass has contended that Albert Bernard had merely admitted recovery from his possession but that does not make accused Ahed Khan accountable and there is nothing on record that aforesaid contraband had been supplied by accused Ahed Khan to convict Albert Bernard. It has been argued that accused Ahed Khan was illegally lifted from his house on 24.07.2008 and in this regard he has placed his reliance upon the testimony of DW2 Harender Bhati.
42 I am, however, not inclined to believe such defence contention. I have seen the testimony of DW2 Harender as well and I have no hesitation in holding that his testimony does not inspire any confidence. He claimed that on 24.07.2008 he had gone to the house of accused Ahed Khan for supply of milk and he had seen few persons who took accused Ahed Khan forcibly from aforesaid flat. According to him, he was supplying milk in that area since 2005. It is though surprising as to how he remembered such date so distinctively. He claimed that those persons who picked up accused, were not in uniform. According to DW2 Harender, he did not see any police vehicle and one guard had told that those persons were police officials. If at all any such thing had taken place, guard of the society was the best witness. Defence has not bothered to examine him. According to DW2 Harender, he was asked by the wife of accused to come for deposition and she had met him on 31.01.2011 and also on 26.03.2011. It seems to me that he has told these two dates on the basis of tutoring as well as date of 24.07.2008. In his cross-examination, he claimed that he used to supply milk by bike. He does not know the date when he had purchased such bike. He does not FIR No. 79/08 PS Narcotic Branch page 24 of 47 know exact date when he had sold that motorcycle. He could not tell the date when he had started milk business and when he closed the same. He rather claimed that he could not tell these dates as he did not remember those dates. It is intriguing and surprising as to how he was able to remember the date of 24.07.2008 so distinctly and specifically more so when such date does not concern him personally. Wife of accused Ahed Khan has not chosen to appear in witness box and, therefore, I do not find any worth in the evidence of DW2 Harender.
43 I have seen the testimony of recovery witnesses pertaining to first recovery. PW6 Ct. Jogender and PW7 HC Mohan were with PW17 SI Satyawan at the relevant time. PW6 Ct. Jogender and Ct. Sohan Lal were directed to chase accused. In witness box, PW6 Ct. Jogender has deposed that accused Ahed Khan had entered inside one house of New Mahavir Nagar and when he came out from such house, that Nigerian was with him. Police had already allegedly nabbed both the accused persons at the spot itself and if at all PW6 Ct. Jogender had seen them entering that house and Ahed Khan remained in that house for quite some time, it has not been made clear as to why police official did not choose to conduct the search of that house.
44 Nobody knows as to who is the owner of that house. Nobody knows as to whether accused Albert Bernard was residing in that house? Who knows some contraband might have been stored there? After all, PW6 Ct. Jogender and Ct. Sohan Lal had seen accused Ahed Khan entering that FIR No. 79/08 PS Narcotic Branch page 25 of 47 particular house and accused Ahed Khan had spent approximately 30-40 minutes in that house and thereafter only contraband had been supplied. It has not been made clear whether accused Ahed Khan was already carrying contraband with him when he alighted down from Indica car or whether he got the contraband when he had gone to that unknown house of New Mahavir Nagar. Investigation to that extent is completely hushed. It seems to me that investigating agency felt happy by catching accused Ahed Khan and Albert Bernard at the spot itself and did not want to tax themselves any further else they should have immediately rushed to that particular house in order to find anything incriminating.
45 However, such fact, by itself, does not become a ground to throw away the prosecution case. All the recovery witnesses pertaining to first recovery have categorically deposed that 500 grams of heroin was taken out by accused Ahed Khan from right pocket of his wearing cargo pants and he gave the same to accused Albert Bernard and immediately thereafter both the accused were apprehended. Surprisingly, there is no specific suggestion to PW6 Ct. Jogender and PW7 HC Mohan Singh or PW17 SI Satyawan that no such contraband was ever supplied by accused Ahed Khan to accused Albert Bernard. Accused Albert Bernard has already pleaded guilty and case of prosecution against him was very explicit and specific. Prosecution is completely unambiguous in this regard and as per case of prosecution, contraband, which had been recovered from the possession of accused Albert Bernard, was supplied to him by accused Ahed Khan. Even as regards the charge under Section 21 NDPS Act which was FIR No. 79/08 PS Narcotic Branch page 26 of 47 framed against accused Albert Bernard, it was specifically mentioned that he was found in possession of 500 grams of heroin which he had received from his co-accused Ahed Khan. Confessional statement of accused Albert Bernard becomes a valuable piece of evidence as per Section 30 of Evidence Act.
46 Section 21 NDPS Act prohibits manufacturing, possession, sale, purchase, transportation, import and export of any manufactured drug. "Supply" and "sale" are almost overlapping terms in the context of said section. Though the contraband was recovered from the person of accused Albert Bernard but involvement of accused Ahed Khan is loud and clear. He cannot run away from the liability by claiming that such contraband was not recovered from his conscious possession. Such contraband had been supplied by him and such act of supply was witnessed by police and I do not find any reason whatsoever to disbelieve them in this regard. Quantity of 12.5 grams is intermediary quantity which makes accused Ahed Khan liable under Section 21 (b) read with Section 29 of NDPS Act. Accused Ahed Khan has evidently abetted offence by supplying heroin and thus he was party to criminal conspiracy along with convict Albert Bernard as far as first recovery is concerned. Link evidence is also found to be in existence. Concerned MHC(M) has proved relevant Register No. 19 and Register No. 21. Sample was taken to FSL by HC Rajender. Unfortunately, he expired during pendency of the matter. Defence cannot dig out any advantage out of it as even report of FSL clearly indicates that sealed pullandas were received in FSL on 07.08.2008 through HC Rajender No. 4081/DRP and seals were intact and were tallied with the FIR No. 79/08 PS Narcotic Branch page 27 of 47 specimen seal. Seals were of 1SHO NBR DELHI & 7CPS NB DELHI and I do not find any fraction of Section 42 or Section 50 or Section 57 NDPS Act.
47 Sh. Dass has, however, contended that it would be hardly believable that Ahed Khan would come in Indica car and investigating agency would not even try to interrogate as to who was driver of the that vehicle. Undoubtedly, there is found to be investigational lapse on this aspect as well. It is not really explained by the prosecution as to why concerned owner of said Indica car was not interrogated during investigation. However, such fact by itself does not cause any adverse impact over the case of prosecution and it cannot be assumed that investigating agency is trying to suppress any fact. Moreover, vehicle was used only for a limited purpose and accused Ahed Khan was merely travelling in that vehicle. The quantity in question was contained in polythene which accused Ahed Khan had taken out from the pocket of his wearing pants and it was not taken out from dikki of the Indica car. It cannot be automatically assumed that such vehicle was being used for transportation of contraband. Merely due to the fact that accused Ahed Khan had come at the spot while travelling in such Indica car, it cannot be assumed that Indica car was liable to be seized. Fact remains that owner should have been contacted and his statement should have been recorded. Sh. Dass has contended that he took lot of pain and tried to catch hold of the owner and examined him and his testimony clearly indicates that he had never given his vehicle to accused Ahed Khan. I have seen the testimony of DW1 Dilshad Ali. I am of the view that defence cannot excavate any FIR No. 79/08 PS Narcotic Branch page 28 of 47 advantage from his testimony. He has, though, claimed that he is owner of the Indica car in question but fact remains that he has not produced any document in order to substantiate such fact. Neither registration certificate nor any other document was placed on record which may even remotely show that he was owner of such Indica car. Nobody knows as to how accused was able to catch hold of DW1 Dilshad Ali. In such type of situation, information can only be gathered from Transport Department. Defence has not bothered to examine any witness from Transport Department and it is really astounding as to how defence was able to contact DW1 Dilshad Ali. It rather shows that Dilshad Ali has deposed merely at the dictates of defence and has no personal knowledge of the matter.
48 Sh. Dass has contended that as per case of prosecution, Ahed Khan was having a driver of his own i.e. accused Neeraj and if that was really so then why Neeraj was not asked by accused Ahed Khan to drop him at the spot and according to him, such fact itself creates strong doubt in the correctness of the case of prosecution. I am, however, not impressed with such contention either. Neither Ahed Khan admits such fact nor Neeraj. Even if it is assumed that Neeraj was driver of accused Ahed Khan, he would be only driving the vehicle owned by his employer and would not always drive the vehicle of someone else. There is nothing before me to show that any of the police official was able to see that particular person at the steering wheel and, therefore, such defence contention does not carry any significance. Sh. Dass has also contended that it is not clear whether Indica car was having FIR No. 79/08 PS Narcotic Branch page 29 of 47 silver metallic color or mud like metallic color. According to him, witnesses are not able to give the clear color description of the car. However, such contradiction is too trivial to be given any value.
49 With respect to first recovery, Sh. Dass has further argued that there is no explanation as to why independent witnesses were not joined when prosecution has come with specific case that it was already working on the case and there was interception of calls. He has also argued that some government employees could have been very easily joined in the raiding team but police had churned out stereotyped version that passersby were requested to join the investigation who declined and left the place without telling their names and addresses.
50 The police party had asked several passersby but they all declined. Admittedly, it would have been much better had their names and addresses been recorded but such fact by itself cannot be said to be ample enough to scrap the entire prosecution case. I cannot lose sight of the fact that people are generally reluctant to join such type of investigation. In Akmal Ahmed v. State of Delhi, 1999(2) RCR(Criminal) 265, it is observed that it is now well-settled that the evidence of search or seizure, made by the police will not become vitiated, solely for the reason that the same was not supported by an independent witness. Reference be made to State of NCT of Delhi v. Sunil, 2001(1) RCR(Criminal) 56:(2000)1 SCC 748, Appa Bai and another v. State of Gujarat, AIR 1988 SC 696, FIR No. 79/08 PS Narcotic Branch page 30 of 47 51 Undeniably, search before an independent witness imparts much more realism and credit worthiness to the search and seizure proceedings. But at the same time, prosecution case cannot be thrown away straightaway merely because chief plank of evidence is that of official witnesses. Police can only appeal and, to some extent, persuade them to join raid. In these circumstances, mere non-joining of independent witnesses cannot be said to be fatal. Other authorities cited at the Bar by defence pertaining to non- compliance of sec 50 NDPS Act do not stand attracted in the present case at all.
52 In view of my aforesaid discussion, I hold accused Ahed Khan guilty for commission of offence under Section 21 read with Section 29 NDPS Act with respect to first recovery of 12.5 grams of actual heroin (after extrapolating purity percentage).
53 Let me now come to the second recovery.
54 When both the accused persons i.e. accused Albert Bernard and accused Ahed Khan were lodged in lockup, accused Ahed Khan made disclosure and he claimed that he could get recovered chemicals from the house of his driver Neeraj situated at E-160, Delta-1 Sector, Greater Noida, UP. His such disclosure statement has been proved as Ex. PW7/F. Needless to reiterate that only that part of disclosure is admissible which leads to any recovery of fact. In his such disclosure statement, he claimed that he could get recovered synthetic heroin and Ephedrine from said house of his driver FIR No. 79/08 PS Narcotic Branch page 31 of 47 Neeraj.
55 After the registration of FIR, PW13 SI Satish Rana conducted further investigation. I have seen his testimony very minutely and carefully. Pursuant to disclosure made by accused Ahed Kha, SI Satish Rana prepared intimation under Section 42 NDPS Act by lodging DD. Such intimation has been proved as Ex. PW5/H. It was placed before SHO-Insp. M.L. Sharma along with disclosure made by accused Ahed Khan and PW15 Insp. M.L. Sharma then intimated PW5 ACP M.S. Dabas telephonically regarding the aforesaid information under Section 42 of NDPS Act and then raiding party was prepared. It consisted of PW6 Ct. Jogender, PW7 HC Mohan Singh, PW13 SI Satish Rana, PW15 Insp. M.L. Sharma, PW17 SI Satyawan. Accused Ahed Khan also accompanied police team. ACP M.S. Dabas also accompanied raiding party in a separate vehicle. Departure was made at 5.30 AM vide DD No. 4A which has been proved as Ex. PW13/C. Accused Ahed Khan then took the police party to the first floor portion of H. No. E- 160, Delta-1 Sector, Greater Noida, UP where accused Neeraj Yadav was present and he was apprised about the information and was told that there was possibility of recovery of contraband from his house. He was made aware about his legal rights under Section 50 NDPS Act and he was also told that his search could be taken before any gazetted officer or Magistrate. He was also told that ACP was part of the raiding team. He, however, declined to be searched in the presence of any gazetted officer of Magistrate. He made refusal endorsement in his own hand on the original notice Ex. PW5/A. His such refusal has been duly proved as Ex. PW5/B. FIR No. 79/08 PS Narcotic Branch page 32 of 47 56 As far as recovery of any contraband from the person of accused Neeraj is concerned, no incriminating article was recovered from the person of accused Neeraj. Thus sec 50 NDPS Act was not even remotely attracted but still police prepared the same and served the same as well upon accused. In such a situation, judgment relied upon by defence on the issue of non-observance of sec 50 NDPS Act, once again, pales into insignificance.
57 Three cartons were, however, recovered from bed box of that house. These were containing chemicals. These cartons were given number as G1, G2 & G3. From carton G1, five bottles containing different chemicals were recovered. Those were diethylether (500 ml.), acetone (two bottles of 250 ml. each), sulphuric acid (500 ml.) and Hydrochloric Acid (5 ltr. can). 10 ml. quantity was taken out of each chemical for sample purpose. From acetone, 5 ml. sample was drawn from each bottle and one single bottle of 10 ml was prepared. Samples were taken in small bottles. Samples were put in separate cloth and pullandas were prepared and these four sample pullandas were number as Mark S1 to S4. Remaining bottles were sealed from the cap and all such bottles were put back in the same carton G1 and carton G1 was put in white cloth and packed and sealed and same number G1 was given to the pullanda containing carton G1. Sample bottles and pullanda G1 were sealed with the seal of 'SR'.
58 According to PW13 SI Satish Rana, all these chemicals were found to be precursors and were controlled under NDPS Act.
FIR No. 79/08 PS Narcotic Branch page 33 of 47 59 Carton G2 was found containing five containers containing different chemicals viz. Chloroform (two bottles), charcoal activated (two boxes and chemical was in powder form) and methanol (bottle). Those were packed by putting in the same carton and pullanda was prepared with the help of white cloth and was given serial number G2 and was sealed with the seal of 'SR'.
60 Carton G3 was found containing 17 containers of which some were bottles and some were boxes. Some bottles were half filled, some were sealed/unopened. Chemicals contained therein were Gram's Iodine, acetic acid, acetic acid glacian, red phosphorous, yellow phosphorous, citric acid, sodium hydroxide pallets, sodium hydroxide solution, sodium bicarbonate, stannous chloride, mono iodine etc. No sample was drawn from these containers and these were put back in the same carton and pullanda was prepared with the help of white cloth and was given serial number G3 and was sealed with the seal of 'SR'.
61 Thereafter, both the accused produced one container of hardboard claiming that same was containing Ephedrine. Such content was checked with the help of field testing kit and was found to be Ephedrine. It was weighed and found to be 40 kgs without box. 50 grams of Ephedrine was taken out for sample purpose and was put in a white polythene and sample pullanda was given number as E-1 and remaining Ephedrine was put back in the same hardboard box and was packed with the help of white strip and was given number as E. From the same room, one rexin bag of black and blue color FIR No. 79/08 PS Narcotic Branch page 34 of 47 was also recovered and it was containing synthetic heroin which was yellowish in color and was contained in white color polythene. It was tested with the help of field testing kit and tested positive result of heroin. Its total weight was found to be 21 kgs. 100 grams quantity was taken out for sample purpose and such sample was given number as SH1. Remaining quantity was separately packed and sealed and was given number as SH. Besides aforesaid chemicals and contraband, one grinding machine was also recovered from the same house/room.
62 Let me now observe something very vital regarding sample E1 and SH1 which relate to second recovery.
63 According to FSL expert Dr. Madhulika Sharma, Mark E1 was found to be Ephedrine and whereas SH1 was found containing admixture containing diacetylmorphine 3.1 percent and Alprazolam 79.6 per cent. It becomes very much apparent that SH1 was a sample of manufactured drug since it was containing diacetylmorphine to the extent of 3.1 per cent. I have seen the testimony of other recovery witnesses related to second recovery. Testimony of PW6 Ct. Jogender, really speaking, is of no help with respect to second recovery because he remained in the official vehicle and did not enter house of accused Neeraj. PW15 Insp. M.L. Sharma and PW5 ACP M.S. Dabas and PW15 SI Satyawan have also corroborated SI Satish Rana.
64 However, there is one glaring blemish pertaining to second recovery which persuades me to ignore the second FIR No. 79/08 PS Narcotic Branch page 35 of 47 recovery in toto. That critical aspect is concerning seizure of contraband and the manner in which it was kept in the malkhana during trial.
65 Case property was produced before the Court for the first time when PW5 ACP M.S. Dabas entered into witness box on 12.05.2010. Carton G1 was produced in a very bad shape and cloth was found torn/cut and the cardboard box was also broken/torn and it was possible for anyone to take out or put inside anything without disturbing the seals. The bottle of diethylether was found empty and it was also observed by the Court that its lid could be opened without disturbing the seal. Bottle of sulphuric acid was found in unsealed condition and one plastic can was also produced in unsealed condition. Thus, as far as carton G1 is concerned, evidently, it was not kept properly and there was every chance of tampering with the case property concerning carton G1. Main Pullanda SH was also produced before the Court and it was observed by the Court that it could also be opened without disturbing the seal. Sample pullanda E1 (which had been received back from FSL) was also produced in unsealed condition and it was possible to take out anything from that without disturbing the seal. Pullanda SH1 was also produced in partially damaged condition and its contents could be taken out without disturbing the seal. The drum of Ephedrine was also produced in a casual condition. Seal was found broken and there was no seal over the string at all and, therefore, there was chance of tampering with the contents of such drum which allegedly was containing Ephedrine.
FIR No. 79/08 PS Narcotic Branch page 36 of 47 66 Sections 52 & 52A of NDPS Act read as under:
Section 52: Disposal of persons arrested and articles seized:
(i) Any officer arresting a person under section 41, section 42, section 43 or section 44 shall as soon as may be, inform him of the grounds of such arrest.
(ii) Every person arrested and article seized under warrant issued under sub-section (1) of section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.
(iii) Every person arrested and article seized under sub-section (2) of section 41, section 42, section 43 or section 44 shall be forwarded without unnecessary delay to :- (a) the officer-in-charge of the nearest police station, or (b) the officer empowered under section 53.
(iv) The authority or officer to whom any person or article is forwarded under sub-section (2) or sub-section (3) shall, with all convenient despatch, take such measures as may be necessary for the disposal according to law of such person or article.
Section 52A: Disposal of seized narcotic drugs and psychotropic substances:
(i) The Central Government may, having regard to the hazardous nature of any narcotic drugs or psychotropic substances, their vulnerability to theft, substitution, constraints of proper storage space or any other relevant considerations, by notification published in the Official Gazette, specify such narcotic drugs or psychotropic substances or class of narcotic drugs or class of psychotropic substances which shall, as soon as may be after their seizure, FIR No. 79/08 PS Narcotic Branch page 37 of 47 be disposed of by such officer and in such manner s that Government may, from time to time, determine after following the procedure hereinafter specified.
(ii) Where any narcotic drug or psychotropic substances has been seized and forwarded to the officer-in-
charge of the nearest police station or to the officer empowered under section 53, the officer referred to in sub- section (1) shall prepare an inventory of such narcotic drugs or psychotropic substances containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs or psychotropic substances or the packing in which they are packed, country of original an other particulars as the officer referred to in sub-section (1) may consider relevant to the identity of the narcotic drugs or psychotropic substances in any proceedings under this Act and make an application, to any Magistrate for the purpose of--
(a) certifying the correctness of the inventory so prepared; or
(b) taking, in the presence of such Magistrate, photographs of such drugs or substances and certifying such photographs as true; or
(c) allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn.
(iii) Where an application is made under sub- section (2), the Magistrate shall, as soon as may be, allow the application.
FIR No. 79/08 PS Narcotic Branch page 38 of 47
(iv) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872) or the Code of Criminal Procedure, 1973 (2 of 1974), every Court trying an offence under this Act, shall treat the inventory, the photographs of narcotic drugs or psychotropic substances and any list of samples drawn under sub-section (2) and certified by the Magistrate, as primary evidence in respect of such offence.
67 I am not able to recollect even a single case in which any inventory was made of the seized article and any application was moved before any Magistrate. Since quantity in question was huge and there was recovery of hazardous nature of narcotic drugs and psychotropic substances, it was very convenient for the investigating agency to have moved proper application for the purpose of certifying the correctness of the inventory and photographs of such drug or substances could be taken and representative samples could be drawn which would have naturally become a primary piece of evidence as well. There must be constraint of proper storage place with Narcotics Branch and when the recovery is huge, it is appropriate to fall back on Section 52A of NDPS Act but no necessity was felt. Case property, which was produced before the Court (pertaining to second recovery), was found to be in pathetic, loose and unsealed condition and in such type of serious matter, it is the primary and foremost duty of prosecution to rule out any possibility of tampering with the case property. In view of my own specific observation recorded at the time of exhibiting of the case property, it becomes very much perceptible that there was apparent possibility of tampering with the case property. Since it was FIR No. 79/08 PS Narcotic Branch page 39 of 47 easy to take out the contents from some of the pullandas without even disturbing the seal, it would not be, therefore, appropriate to hold accused guilty on the basis of such recovery. Reference be made to following judgments
(i) Mobin Fathu Bhai Mulani Vs. NCB 2001 (1) JCC (Delhi) 337;
(ii) Kailash Singh VS. State (Delhi Administration) 37 (1989) DLT 145
(iii) Valsala Vs. State of Kerala 1993 (2) Crimes 267.
(iv) NCB Vs. Parveen Crl. M.A. no. 576/2001 Delhi High Court ( DOD 11.08.2008) 68 In view of my aforesaid discussion, I grant
benefit of doubt to accused Ahed Khan as well as to accused Neeraj with respect to second recovery.
69 Let me now come to third recovery.
70 Accused Ahed Khan made supplementary disclosure statement and took police to his own house i.e. H. No. A-313, Black Gold Apartment, Greater Noida, UP and from his house 2.5 kgs Ephedrine was recovered. Such fact has been sought to be substantiated by prosecution through PW13 SI Satish Rana and PW17 SI Satyawan.
71 Let me first see the supplementary disclosure statement. Such supplementary disclosure statement has been proved as Ex. PW13/G and it is virtually one line statement in which accused Ahed had disclosed that he could FIR No. 79/08 PS Narcotic Branch page 40 of 47 get recovered Ephedrine from his house which was used for manufacturing synthetic heroin. PW13 SI Satish Rana has deposed in examination-in-chief that on 27.07.2008 when accused Ahed Khan was in police custody, he made further disclosure statement. SI Satish Rana recorded the same and he prepared report under Section 42 NDPS Act and produced the same before SHO along with copy of such disclosure statement. Such report under Section 42 NDPS Act has been proved as Ex. PW5/K and SHO telephonically intimated ACP about such information who directed to take further action. PW5 ACP M.S. Dabas has also substantiated such fact as in his testimony dated 21.04.2010, he deposed that he had received another report along with copy of disclosure statement in his office vide dak no. 1106 and such original information was endorsed by him and he signed the same day. PW15 Insp. M.L. Sharma has also deposed that on 27.07.2008 SI Satish Rana prepared report under Section 42 NDPS Act and he also deposed that he telephonically intimated ACP who directed him take further necessary action and thereupon SI Satish Rana left the PS vide DD No. 14A at 5.00 PM with IO bag, field testing kit, electronic weighing machine and staff. Since as per disclosure the recovery was to be effected from the house of accused, SI Satish Rana did the right thing by reducing the information in writing and preparing the report under Section 42 Cr.P.C. before leaving the PS. There is found to be complete compliance of Section 42 NDPS Act. DD No. 14A has also been proved as Ex. PW8/B and raiding party reached the house of accused Ahed Khan situated at third floor of the apartment and his wife was there in the apartment and she was told about the information and was requested to join the FIR No. 79/08 PS Narcotic Branch page 41 of 47 investigation but she declined. Accused Ahed Khan then led the raiding team to left side room of his apartment and produce one red color polythene which was kept in a corner of outside almirah and it was found containing Ephedrine which was yellowish in color and accused Ahed Khan claimed that color had turned yellowish as he had mixed up some chemical.
72 Such Ephedrine was in crystal form and it was tested with the help of field testing kit and was found to be Ephedrine and it was weighed and total weight was found to be 2.5 kgs. Sample of 10 grams was taken out and as put in white polythene and pullanda was prepared with the help of white cloth and was given serial no. E-2 and remaining Ephedrine was put back in the same red polythene and was given serial no. E-3. E-2 pullanda was sent to FSL and as per report of FSL, E-2 was found containing Ephedrine, caffeine and alprazolam. Percentage of alprazolam was found to be 12.0 per cent. It would be important to mention that no diacetylmorphine content was noticed in E-2. It would be also important to mention that when E-2 was produced for the first time before the Court, it was noticed that it was produced in torn condition and such pullanda was exhibited as Ex. P-42. Main pullanda was also produced before the Court and was exhibited as Ex. P-44.
73 As per FSL result, exhibit E-2 was found containing Ephedrine as well. As far as caffeine and alprazolam are concerned, their presence by itself does not invite any penal action.
FIR No. 79/08 PS Narcotic Branch page 42 of 47 74 Ephedrine is a controlled substance. Section 2 (vii-
d) of NDPS Act defines controlled substance as under:
"controlled substance" means any substance which the Central Government may, having regard to the available information as to its possible use in the production or manufacture of narcotic drugs or psychotropic substances or to the provisions of any International Convention, by notification in the official Gazette, declare to be a controlled substance".
75 AS per Section 9A NDPS Act, Central Government may by order provide for regulating or prohibiting the production, manufacture, supply, transportation and distribution and trade and commerce therein of any such controlled substance. There is a notification declaring Ephedrine as controlled substance and such notification reads as under:
Notification No. S.O. 1296 (E), dated 28th December, 1999- Whereas, the Central Government, having regard to the available information about the use of ephedrine and pseudo ephedrine in the manufacture of certain amphetamines and metamphetamine decide to declare the same as controlled substances.
Now, therefore, the Central Government in exercise of the powers conferred under Clause (vii-a) of Section 2 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985) hereby declares Ephedrine and Pseudo ephedrine and their salts as controlled substances for the purpose of said clause.
FIR No. 79/08 PS Narcotic Branch page 43 of 47
76 Section 25A NDPS Act reads as under:
Punishment for contravention of orders made under Section 9-A. - If any person contravenes an order made under Section 9-A, shall be punishable with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine which may extend to one lakh rupees :
Provided that the Court may, for reasons to be recorded in the judgment impose a fine exceeding one lakh rupees.
77 Ephedrine is naturally a controlled substance. Rules made under NDPS Act i.e. Narcotic Drugs and Psychotropic Substances Rules 1985 do not deal with controlled substances. There is separate order and such separate order is known as Narcotic Drugs and Psychotropic Substances (Regulation of Controlled Substances) Order, 1993. It lays down stipulation for the purpose of person who are in manufacturing, distribution, transportation, sale, import, export and consumption of controlled substances. It, however, does not deal with the possession of contraband substances simplicitor.
FIR No. 79/08 PS Narcotic Branch page 44 of 47 78 Undoubtedly, Ephedrine is a controlled substance as per aforesaid notification.
79 PW17 SI Satyawan has also supported the case of prosecution with respect to third recovery dated 27.07.2008 and he has also deposed that security guard of the apartment and even wife of accused were requested to join the investigation but they declined. I have seen cross- examination of PW17 SI Satyawan as well. There is no specific suggestion challenging or disputing recovery of Ephedrine from the house of accused Ahed Khan on 27.07.2008. I have already noticed the testimony of DW2 Harender and his testimony does not inspire any confidence. Accused Ahed Khan could have examined his wife in order to show that no search had taken place or that no Ephedrine had been recovered from his house but he has not chosen to examine his wife. PW3 Sushil happens to be the landlord of said apartment i.e. A-313, Black Gold Apartment, Greater Noida, UP and he has categorically deposed that he had rented out such flat to accused Ahed Khan and it was not suggested to him that accused Ahed Khan never lived there.
80 However, even if recovery is assumed, it really does not serve the purpose. It has already been noticed that when pullanda E-2 was produced before the Court, it was found in torn condition which means that it was not stored or kept properly by the investigating agency. Moreover, there is some confusion with respect to shape of Ephedrine. PW13 SI Satish Rana has deposed that Ephedrine was yellowish in color and FIR No. 79/08 PS Narcotic Branch page 45 of 47 was in crystal form. PW17 SI Satyawan has, on the other hand, claimed that it was containing yellowish and mixed brown color crystals. When the contraband was received in FSL, it was noticed by the concerned FSL expert that exhibit E-2 was containing yellow brown and black coloured coarse powdery material. Thus, there is found to be difference in color as well as in the shape. No witness has deposed that such Ephedrine was in the shape of coarse powder and rather witnesses are found to be specific and according to them, contraband was in the shape of crystal. Seizure memo of such Ephedrine has been proved as Ex. PW13/H. It also mentions that color of Ephedrine was brown and yellow and it was in the crystal form.
81 When the case property was produced in the Court for the first time, it was shown to SI Satish Rana and as far as main pullandas i.e. E-3 was concerned, it was found containing multiple of color stones/crystals. However, pullanda, which had been sent to FSL, was produced in torn condition and even as per report of FSL, content was not in the shape of crystal form and rather it was in the shape of coarse powder. Thus, it would not be possible to hold conclusively that sample, which had been sent to FSL, was drawn out from the main pullanda E-3. Said variation in color and shape cannot be brushed aside casually.
82 Therefore, I am inclined to grant benefit of doubt to all accused pertaining to third recovery.
FIR No. 79/08 PS Narcotic Branch page 46 of 47 83 Resultantly, only accused Ahed Khan is held guilty for offence u/s 21 r.w. sec 29 NDPS Act for supplying heroin to Convict Albert Bernard. Other two accused, namely, Ajay Jain and Neeraj Yadav are acquitted of all the charges. They be released from jail forthwith if not required in any other case. Announced in the open Court on this 05th day of July, 2011.
(MANOJ JAIN) ASJ/Special Judge (NDPS Cases) Outer Distt: Rohini Courts: Delhi FIR No. 79/08 PS Narcotic Branch page 47 of 47 FIR No. 79/08 PS Narcotics Branch Tuesday, July 05 2011 At 3.00 PM Present: Learned Addl. P.P. for the State.
Convict Ahed Khan in JC with counsel Sh. S.S. Dass.
1 Heard arguments on sentence.
2 Learned Addl. P.P. has prayed for appropriate sentence whereas Sh. Dass has contended that convict Ahed Khan has already suffered more than sufficient incarceration and has prayed for maximum leniency.
3 Though quantity of heroin supplied by convict Ahed Khan to his co-accused/convict Albert Bernard is 500 grams but keeping in mind negligible percentage of diacetylmorphine, by extrapolation, the actual quantity of heroin comes to 12.5 grams only. Small quantity is upto five grams and commercial quantity starts from 250 grams.
4 It has also been argued that convict Ahed Khan has no previous history and this happens to be his first criminal case. Convict Ahed Khan was arrested on 26.07.2008 and is in custody since then. Thus, virtually, he has spent period of three years approximately behind the bars. Keeping in mind the sentence awarded to his co-accused/convict Albert Bernard, previous clean antecedents of convict Ahed Khan and keeping in mind the overall facts and circumstances of the case, convict Ahed Khan is sentenced to the period already undergone by him. He is also fined Rs. 20,000/-. In case he FIR No. 79/08 PS Narcotic Branch page 48 of 47 fails to make the payment of fine, he would further undergo SI for a period of four months.
5 Fine amount has been paid.
6 Convict be sent to jail under appropriate warrants.
7 Case property is confiscated to State and be destroyed after expiry of period of appeal, if any.
8 A copy of judgment and order on sentence be given to convict Ahed Khan free of cost.
9 Earlier passport of convict Ahed Khan was kept on record. It be given to him unconditionally. A copy thereof be, however, retained on record.
10 Convict Ahed Khan has also furnished bonds under Section 437A Cr.P.C. Same have been accepted.
11 File be consigned to Record Room.
Announced in the open Court on this 05th day of July, 2011.
(MANOJ JAIN) ASJ/Special Judge (NDPS) Outer Distt: Rohini Courts: Delhi 05.07.2011 FIR No. 79/08 PS Narcotic Branch page 49 of 47