State vs Haripal on 16 February, 2024

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Delhi District Court

State vs Haripal on 16 February, 2024

        IN THE COURT OF SPECIAL JUDGE (NDPS),
      SHAHDARA, KARKARDOOMA COURTS, DELHI


STATE VS. HARI PAL

Session Case No. :          398/2017
CNR No.               :     DLSH010076312017
FIR No.               :     175/2017
U/s                   :     21 of the NDPS Act, 1985
PS                    :     Crime Branch


In the matter of :

State
                               Versus

Hari Pal
S/o Sh. Pattu Lal
R/o Village Sainjania, Tehsil Dataganj,
District Badaun, Uttar Pradesh
                                           .......... Accused

        Date of institution                   :        01.12.2017
        Date when judgment reserved           :        12.01.2024
        Date of Judgment                      :        16.02.2024

JUDGMENT:

1. This is a case in which accused Hari Pal has faced trial for commission of offence punishable under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short "the NDPS Act") on the allegation that he was found in possession of contraband i.e. heroin SC No. 398/2017 Page 1 of 64 State vs. Haripal Judgment dt.16.02.2024 without any permit or licence in contravention of provisions of the NDPS Act.

2. The case of the prosecution as borne out from the chargesheet is as under: 2.1. On 04.10.2017, SI Vinod was present and on duty at Narcotics Cell, Kotwali, Delhi and at about 7.30 am, a secret informer came to him and informed that one person, namely, Haripal, who is resident of Badaun, Uttar Pradesh and indulges in supply of heroin in Delhi after procuring the same from Bareily/Badaun, would come in between 9.00 to 9.30 am at Patparganj Industrial Area, near nala bridge, road leading towards Anand Vihar ISBT along with consignment of heroin to deliver the same to someone and if raid is conducted, he could be apprehended along with contraband.

2.2. SI Vinod Kumar at about 7.45 am, produced the said secret informer before Inspector Rajni Kant Sharma, who made enquiry from the secret informer and after satisfying himself with the information communicated the same to Sh. Sanjeev Tyagi, ACP/N&CP, Narcotics Cell telephonically who directed to take legal action as per law.

2.3. SI Vinod Kumar made DD entry vide DD No. 3 at 8.00 am in duplicate regarding the secret information and produced its original before Inspector Rajni Kant SC No. 398/2017 Page 2 of 64 State vs. Haripal Judgment dt.16.02.2024 Sharma for the proceedings under Section 42 of the NDPS Act.

2.4. Pursuant to the direction of Inspector Rajni Kant, SI Vinod Kumar called HC Birbal Singh and HC Dharmender and conveyed them the secret information and prepared a raiding party comprising himself, HC Birbal Singh and HC Dharmender. The raiding party departed from Narcotics Office for the spot at around 8.30 am vide DD no. 4 after taking IO kit, field testing kit and electronic weighing machine with them in a private car make Wagon R (blue) bearing Registration No. DL8CP3419.

2.5. The raiding party reached at the spot i.e. Patparganj Industrial Area, near bridge on nala, road towards Anand Vihar ISBT, Delhi at around 9.00 am and on the way, at Shantivan red light, 45 persons and at Karkarimor red light, 56 persons were asked to join the raiding party by the IO/PW3 SI Vinod Kumar, but they refused to join the raiding party stating their reasonable causes and left without disclosing their names and addresses. The above said vehicle was parked at 20 meter prior to road leading to Patparganj Industrial Area. SI Vinod Kumar briefed the raiding party at around 9.05 pm and, thereafter, they took their position near the road leading towards Patparganj Industrial Area within the area of 5 meter.

SC No. 398/2017 Page 3 of 64

State vs. Haripal Judgment dt.16.02.2024 2.6. At around 9.20 am, one person was seen coming from the side of Anand Vihar ISBT on foot who was identified by the secret informer as Haripal (the accused) and, thereafter, the secret informer left the spot. The accused waited there for about 10 minutes and, thereafter, when he started going back to Anand Vihar ISBT side, he was apprehended by the raiding party at around 9.30 am and on interrogation he revealed his name as 'Haripal'.

2.7. SI Vinod Kumar introduced himself and other members of the raiding party to the accused and requested many public persons who had gathered there to join the investigation, but they refused to join the investigation stating their reasonable causes and left without disclosing their names and addresses; and due to paucity of time, no notice was served upon them.

2.8. SI Vinod Kumar informed the accused that the raiding party was having secret information that he possessed heroin to be supplied to someone and hence his personal search was required to be conducted. The accused was also apprised about his legal right to be searched in presence of a Gazetted Officer or a Magistrate and he was also offered to take search of the raiding party & the vehicle which was called by the IO at the spot, but the accused refused to avail his legal rights.

SC No. 398/2017 Page 4 of 64

State vs. Haripal Judgment dt.16.02.2024 2.9. In this regard, SI Vinod Kumar prepared a notice under Section 50 of the NDPS Act in duplicate contents of which were read over and explained to the accused and then original notice was given to the accused and he recorded his refusal in his handwriting on the carbon copy of the notice.

2.10. Thereafter, SI Vinod Kumar conducted cursory search of the accused during which one transparent polythene mouth of which was tied with rubber band containing some brownish powder was recovered from right pocket of his black colour wearing pants; and on checking in the field testing kit it was found to be heroin.

2.11. SI Vinod Kumar weighed the entire recovered contraband along with the polythene bag on electronic machine and it was found 200 grams, out of which two samples of 5 grams each were taken out and /the same were kept in two transparent polythene bags which were tied with the rubber bands and the same were converted into two pullandas with the help of white cloth and the said pullandas were marked as A and B. The remaining heroin alongwith the polythene was also converted into a cloth pullanda and the said pullanda was marked as C and all the pullandas were sealed with the seal of '2APS/NB, DELHI'. The sealed pullandas were signed by the IO, other members of the raiding team and by accused Haripal.

SC No. 398/2017 Page 5 of 64

State vs. Haripal Judgment dt.16.02.2024 2.12. SI Vinod Kumar also filled up the FSL form at the spot and affixed his seal on the same. All the sealed pullandas along with FSL form were taken into police possession. SI Vinod Kumar, thereafter, prepared rukka/tehrir and handed over the same to HC Dharmender along with all the sealed pullandas, FSL Form and copy of seizure memo with a direction to hand over the tehrir to the Duty Officer for registration of case and other articles to the SHO PS Crime Branch for compliance of proceedings under Section 55 of the NDPS Act. Accordingly, HC Dharmender left the spot for the police station Crime Branch in the same private vehicle bearing No. DL8CP3419.

2.13. HC Dharmender after reaching the police station handed over the tehrir to ASI Shaji V, the Duty Officer and other articles to Inspector Attar Singh, the SHO. who put FIR number on all the articles and/ his seal 'AS' on the sealed pullandas & FSL form and thereafter handed over all the articles to ASI Jag Narain, the MHC(M) to be deposited in the maalkhana and made DD entry no. 13 dated 04.10.2017 in compliance of Section 55 of the NDPS Act.

2.14. HC Dharmender after registration of FIR handed over original tehrir and copy of FIR to ASI Rohtash Singh who was marked further investigation of the case. ASI Rohtash Singh accordingly departed for the spot in his private vehicle at about 7.00 pm vide DD No. 34 dated SC No. 398/2017 Page 6 of 64 State vs. Haripal Judgment dt.16.02.2024 04.10.2017.

2.15. ASI Rohtash Singh reached at the spot at about 7.45 pm where he met SI Vinod and HC Birbal and he was handed over documents related to the case and custody of accused Haripal by SI Vinod. He prepared site plan at the instance of SI Vinod and arrested the accused at 10.15 pm after interrogation. He also conducted personal search of the accused during which original notice under Section 50 of the NDPS Act, one voter card, a purse and Rs. 580/ in cash were recovered which were taken into police possession. Thereafter, disclosure statement of the accused was recorded.

2.16. SI Rohtash Singh along with other police staff and the accused left the spot and reached at PS Crime Branch, Pushp Vihar at about 12 midnight where ASI Rohtash Singh handed over the personal search articles of the accused to MHC(M). Thereafter, at around 1.00 am, ASI Rohtash Singh along with the other police staff and the accused proceeded to Narcotics Cell and reached there at around 1.40 am where accused Haripal was produced before Inspector Rajni Kant who made enquiries from the accused and found his arrest justified. ASI Rohtash Singh lodged his arrival in DD register vide DD no. 2 at about 2.40 am and recorded statement of the witnesses.

2.17. SI Vinod Kumar prepared special report under Section SC No. 398/2017 Page 7 of 64 State vs. Haripal Judgment dt.16.02.2024 57 of the NDPS Act regarding recovery of heroin and ASI Rohtash Singh prepared special report under Section 57 of the NDPS Act regarding arrest of accused Haripal and they both produced the reports before Inspector Rajni Kant.

2.18. Thereafter, the accused was produced in the Court of Duty MM, Karkardooma Courts and his 03 days police custody remand was obtained. ASI Rohtash Singh along with the accused and other police staff reached at Village Behra, Bareily, Uttar Pradesh in search of one Irfan who supplied the heroin to accused Haripal as per his disclosure statement but said Irfan could not be traced out.

2.19. On 06.10.2017, sample of the present case were deposited with FSL, Rohini through Ct. Rohit for chemical examination.

3. Pending FSL result, chargesheet was prepared against the accused under Section 21 of the NDPS Act and filed before the court on 01.12.2017. However, the investigation was kept open qua absconded accused Irfan who was declared proclaimed offender vide order dated 17.03.2018.

4. FSL result was filed on record by ASI Rohtash Singh, the 2nd IO on 13.02.2018. As per the FSL result Ex.PA1, exhibit 'A' was found to contain 'Diacetylmorphine', '6monoacetylmrphine', SC No. 398/2017 Page 8 of 64 State vs. Haripal Judgment dt.16.02.2024 'Acetaminophen' & 'Acetylcodeine' and found contain Diacetylmorphine 7.5%.

5. After compliance of Section 207 Cr.P.C., charge under Section 21 of the NDPS Act was framed against the accused on 17.03.2018 to which he pleaded not guilty and claimed trial.

6. In order to prove its case, the prosecution has examined 11 witnesses.

7. PW1 is ASI Shaji V., who was the Duty Officer in PS Crime Branch on 04.10.2017 and his duty hours were from 8.00 am to 8.00 pm. He registered the FIR in the present case on the basis of tehrir through computer, computerized copy of which is Ex.PW1/A and endorsement made by him on the rukka is Ex.PW1/B. He deposed that after registration of FIR, the computer copy of FIR along with original tehrir was handed over to HC Dharmender to hand over the same to ASI Rohtash. He made entries in the DD register vide DD no. 11 regarding registration of FIR from points X to X1, copy of which is Ex.PW1/C and vide DD no. 14 regarding departure of HC Dharmender for handing over the original tehrir and copy of FIR to ASI Rohtash from points Y to Y1, copy of which is Ex.PW1/D. He also brought on record certificate under Section 65B of the Evidence Act as Ex.PW1/E.

8. PW2 is ACP Sanjeev Tyagi, who on 04.10.2017 was posted as ACP, Narcotics, Crime Branch and before SC No. 398/2017 Page 9 of 64 State vs. Haripal Judgment dt.16.02.2024 whom a report under Section 42 of the NDPS Act vide DD no. 3 dated 04.10.2017 written by SI Vinod Kumar and two other reports under Sections 57 of the NDPS Act dated 05.10.2017 forwarded by Inspector Rajnikant regarding seizure of contraband and arrest of the accused were produced which he signed after going through the same.

9. PW3 is SI Vinod Kumar, the 1st Investigating Officer (IO) of the case. He is the head of the raiding party which apprehended the accused and recovered the contraband from him. This witness more or less deposed as per the averments made in the chargesheet. Thus, the detailed account of his testimony is not being repeated here for the sake of brevity and shall be discussed at the later and appropriate stage of the judgment. During evidence of this witness, the entire case property which includes the contraband recovered from the accused as well as the sample which was received back from the FSL was brought on record. The documents as well as case property which were brought on record by this witness are mentioned as under alongwith their identification marks: i. Carbon copy of DD No. 3 as Ex.PW3/A ii. Carbon copy of notice under Section 50 of the NDPS Act served upon the accused as Ex.PW3/A iii. Seizure memo of contraband as Ex.PW3/B. iv. Rukka prepared by him as Ex. PW3/C v. Site plan prepared by ASI Rohtash as Ex.PW3/D vi. Arrest memo of the accused as Ex.PW3/E SC No. 398/2017 Page 10 of 64 State vs. Haripal Judgment dt.16.02.2024 vii. Personal search memo as Ex.PW3/F viii. Original notice under Section 50 of the NDPS Act recovered from the personal search of the accused which was produced by MHC(M) as Ex.PW3/G ix. Two cloth pullandas Mark B and C produced by MHC(M) with the seals of the IO and the SHO as Ex.P1 and P2 .

x. Sample pullanda Mark A which was sent to FSL and produced by MHC(M) with the seal of FSL as Ex. P3.

10. PW4 is ASI Jagnarain, the then MHC(M) at PS Crime Branch. He deposed that on 04.10.2017, he was called by Inspector Attar Singh, SHO, PS Crime Branch who gave him three sealed pullandas marked A, B and C bearing seal of '2A PS NB DELHI' and 'AS' along with FSL form bearing the same seals and carbon copy of seizure memo and he made entry in this regard in register no. 19 at serial no. 2806. He produced copy of the relevant page of the register showing the said entry as Ex. PW4/A. He further deposed that on the same date, ASI Rohtash deposited with him jamatalashi articles of accused Haripal. He made entry to the said effect in the register no. 19 at Serial no. 2807 and produced the copy of relevant page of the register showing the said entry which is Ex.PW4/B. The witness further deposed that on 06.10.2017, one sealed pullanda Mark A was sent to FSL, Rohini through Ct. Rohit on the directions of SHO/Inspector Attar Singh vide road certificate no. 331/21/1, copy of which is Ex. PW4/C and he made entry to the said effect which is from point X to X1 on SC No. 398/2017 Page 11 of 64 State vs. Haripal Judgment dt.16.02.2024 Ex.PW4/A; and after depositing the same, Ct. Rohit handed over him the receipt of the acknowledgment, copy of which is Ex. PW4/D. He further deposed that on 18.01.2018, HC Ramesh Kumar deposited with him FSL result contained in an envelope and one pullanda sealed with the seal of FSL DELHI and he after making entry in this regard from point Y to Y1 on Ex.PW4/A handed over the result to the IO.

11. PW5 HC Birbal Singh is one of the members of the raiding party. He deposed on the similar lines as deposed by PW1 SI Vinod Kumar, the 1st IO of the case.

12. PW6 is ASI Dinesh Kumar who was posted as Reader in the Office of ACP, Narcotics, Crime Branch, Delhi at the relevant time. He deposed that on 04.10.2017, he received DD no. 3 dated 04.10.2017 sent by SI Vinod Kumar and forwarded by Inspector Rajnikant Sharma through dak which is Ex.PW6/A and he made entry in the dak register to this effect at Serial No. 1804; and the said DD was produced before the ACP on the same date who after going through the same signed it. He has produced the copy of relevant page of the dak register showing entry at serial no. 1804 regarding receipt of DD no. 3 as Ex.PW6/B. He further deposed that on 05.10.2017, two reports under Section 57 of the NDPS Act, one sent by SI Vinod Kumar regarding seizure of 200 grams heroin from accused Haripal which is Ex.PW6/C SC No. 398/2017 Page 12 of 64 State vs. Haripal Judgment dt.16.02.2024 and the other sent by ASI Rohtash regarding arrest of accused Haripal which is Ex.PW6/E were received at their office through dak. He made entry to the said effect in the dak register at serial no. 1809 and 1810 respectively. He produced copy of the relevant page of the dak register showing entry at serial no. 1809 which is Ex.PW6/D and entry at serial no. 1810 which is Ex. PW6/F. He deposed that both the aforesaid reports were produced before the ACP on the same date who after going through the same made his signatures thereon.

13. PW7 is Ct. Rohit who on the instructions of the IO/ASI Rohtash collected one sealed pullanda Mark A1, forwarding letter, copy of FIR, copy of seizure memo from the malkhana on 06.10.2017 and got deposited the same at FSL, Rohini vide road certificate no. 331/21 dated 06.10.2017. He after depositing the exhibit at FSL Rohini handed over the acknowledgment of case acceptance to the MHC(M). He also deposed that till the sealed pullanda remained in his custody, its seal remained intact and it was not tampered with.

14. PW8 is Inspector Rajni Kant who deposed that on 04.10.2017, he was posted at Narcotics Cell as Inspector and on that day, at about 7.45 am, SI Vinod along with informer came to his office and informed him that one person, namely, Haripal who procures heroin from Bareily, Badaun and supplies the same in Delhi SC No. 398/2017 Page 13 of 64 State vs. Haripal Judgment dt.16.02.2024 would come between 9.00 to 9.30 am along with consignment of drug near Patparganj Industrial Area nala on road going towards ISBT, Anand Vihar in order to supply Heroin to somebody. He after getting himself satisfied with the secret information passed on the same telephonically to ACP/N & CP Sh. Sanjeev Tyagi who directed to take action as per law. He further deposed that later on, SI Vinod produced DD no. 3 regarding the aforesaid information and the compliance of proceedings under Section 42 of the NDPS Act which he forwarded to ACP/N&CP Office. Thereafter, on his direction, SI Vinod constituted raiding party comprising himself, HC Dharmender and Ct. Birbal and the raiding team left the office with the informer in vehicle no. DL8CP3419 Wagon R at about 8.30 am vide DD no. 5 after taking filed testing kit, IO bag and electronic weighing machine with them. He further deposed that on 05.10.2017, at about 1.40 am, ASI Rohtash produced accused Hari Pal before him. He interrogated the accused and found his arrest justified. He further deposed that later on, on the same day, he received tow reports, one regarding seizure of 200 grams of heroin from accused Haripal prepared by SI Vinod Kumar which is Ex.PW8/A and the other regarding arrest of accused Hari Pal prepared by ASI rohtash Singh which is Ex.PW8/B which he forwarded to the Office of ACP/N & CP.

15. PW9 is Inspector Attar Singh, the then SHO, PS SC No. 398/2017 Page 14 of 64 State vs. Haripal Judgment dt.16.02.2024 Crime Branch. He deposed that on 04.10.2017, at around 4.20 pm, HC Dharmender came to his office and handed over him 3 sealed pullandas sealed with the seal of 2A/PSNB, DELHI marked as A, B and C along with FSL form duly stamped with the above mentioned seal and carbon copy of seizure memo. He put his counter seal 'AS' on the three pullandas and the FSL form and also put details of FIR on the three pullands and the carbon copy of seizure memo. Thereafter, ASI Jagnarain, MHC(M) came to his office along with register no. 19 and he handed over the sealed pullandas, FSL form and carbon copy of seizure memo to MHC(M) ASI Jag Narain to deposit the same in the maalkhana. ASI Jagnarain made an entry in register no. 19 to to this effect which he countersigned. He also made DD entry no. 13 in Rojnamcha in compliance of Section 55 of the NDPS Act, certified copy of which is Ex.PW9/A.

16. PW10 is SI Rohtash Singh, the 2nd IO of the case who carried out the investigation in the present case after registration of FIR. He deposed that on 04.10.2017 at about 6.45 pm, HC Dharmender handed over tehrir and copy of FIR to him as further investigation was marked to him at the direction of senior officers. He went to the spot in his private vehicle at about 7.00 pm vide DD no. 34 and reached at the spot at about 7.45 pm where he met SI Vinod and HC Birbal who produced accused Haripal to him and also handed over documents related to the present SC No. 398/2017 Page 15 of 64 State vs. Haripal Judgment dt.16.02.2024 matter. He prepared site plan Ex.PW3/D at the instance of SI Vinod, interrogated the accused and arrested him vide arrest memo Ex.PW3/E. He also conducted personal search of accused Subhash Jaiswal vide personal search memo Ex.PW3/F during which Voter ID card, original notice under Section 50 of the NDPs Act, Rs. 580/ and one brown colour purse were found. He recorded the disclosure statement Ex.PW3/G of the accused and, thereafter, he left the spot at about 11.00 pm and they reached at PS Pushp Vihar Crime Branch where he handed over personal search articles to ASI Jag Narain, MHC(M) and recorded statement of SHO and ASI Jag Narain. At about 1.00 pm, he left for Crime Branch Daryagang and they reached there at about 1.40 pm where he produced the accused before Inspector Rajnikant. He made his arrival entry vide DD no. 2 at about 2.40 am and also recorded statement of witnesses. He further deposed that he prepared a report under Section 57 of the NDPS Act Ex.PW6/E and presented the same before Inspector Rajnikant who signed the same. He obtained three days PC remand of the accused but nothing was recovered from the instance of the accused. He further deposed that he also searched coaccused, namely, Irfan but he was absconding and was declared as proclaimed offender. He filed the chargesheet in the present matter which is Ex.PW10/A and subsequently filed FSL report which is Ex.PA1. He further deposed that on 06.10.2017, he SC No. 398/2017 Page 16 of 64 State vs. Haripal Judgment dt.16.02.2024 directed Ct. Rohit to collect the sample from MHCM in order to deposit the same at FSL Rohini. He correctly identified the notice under Section 50 of the NDPS Act Ex.PW3/G which was recovered from the accused. He also collected copy of road certificate and acknowledgement receipt which he filed along with the chargesheet.

17. PW11 is ASI Dharmender (the then Head Constable) who was part of the raiding party. He deposed more or less on the similar lines as deposed by PW3 SI Vinod Kumar, the 1st IO of the case.

18. It is pertinent to note here that the prosecution has not examined the expert witness from the FSL, Rohini to prove the FSL report as the Ld. Counsel for the accused has admitted the genuineness of the FSL Report bearing No. FSL.2017/C7532 dated 11.01.2018 prepared by Sh. Shailender Yadav, Sr. Scientific Officer (Chemistry), FSL, Rohini and the same is Ex.PA1.

19. After closing of prosecution evidence, statement of the accused under Section 313 Cr.P.C. was recorded wherein he pleaded his innocence and claimed that he has been falsely implicated and the alleged contraband has been planted upon him. The accused opted not to lead evidence in his defence.

20. I have heard the Ld. Additional Public Prosecutor and the Ld. Counsel for the accused and perused the SC No. 398/2017 Page 17 of 64 State vs. Haripal Judgment dt.16.02.2024 record. I have also gone through the written submissions filed on behalf of the accused.

21. During course of the arguments, Ld. Addl. Public Prosecutor submitted that the raiding team members i.e. PW3 SI Vinod Kumar (the 1st IO), PW5 HC Birbal Singh, PW11 ASI Dharmender as well the 2 nd IO i.e. PW10 SI Rohtash Singh have fully supported the prosecution case regarding recovery of contraband from the possession of the accused and his arrest in the present case. She further submitted that necessary compliance of Sections 42, 50, 55 and 57 of the NDPS Act was properly made and the same has been duly proved with the evidence of prosecution witnesses. She further submitted that the prosecution has been able to prove its case against the accused beyond reasonable doubt through the testimonies of the prosecution witnesses. Thus, she prayed that the accused may be convicted for the offence he is charged with.

22. Per contra, Ld. Counsel for the accused submitted that the prosecution has failed to prove its case against the accused beyond reasonable doubt. He made the following submissions and contended that prosecution case is highly doubtful: i. that no public witness has been joined during the entire investigation despite availability and the entire case rests solely on the testimony of police officials and there are SC No. 398/2017 Page 18 of 64 State vs. Haripal Judgment dt.16.02.2024 several material contradictions in their testimonies;

ii. that there was no compliance of Section 50 of the NDPS Act as the accused was not properly communicated about his legal right that he may get himself searched in the presence of 'nearest' Gazetted Officer or Magistrate; and even otherwise notice under Section 50 of the NDPS Act allegedly served upon the accused was defective being not served upon the accused at the spot. Further, that the Gazetted Officer or Magistrate was not called at the spot and despite refusal of the accused it was mandatory to search the accused in their presence.

iii. that no handing over memo was prepared by the 1st IO SI Vinod Kumar to the effect that the seal after use was handed over to PW5 HC Birbal and hence the possibility of tampering with the exhibits/samples cannot be ruled out.

iv. that there was no compliance of Section 52A of the NDPS Act as the samples were not drawn in the presence of Magistrate.

v. that DD No. 4 was not produced in original and the same has not been proved to establish that the 1st IO carried IO kit, field testing kit and elecronic machine and use of private Wagon R car No. DL8CAP 3419 during the raid.

vi. that there is contradiction in the testimonies of prosecution witnesses regarding the capacity of weighing machine.

SC No. 398/2017 Page 19 of 64

State vs. Haripal Judgment dt.16.02.2024 As per PW3 SI Vinod Kumar, the capacity of weighing machine upto ½ kilogram, while PW8 Inspector Rajni Kant stated the capacity of the weighing machine about 7.5 KG.

vii. that PW5 HC Birbal had stated in his crossexamination that the contraband was recovered from the black colour pants worn by the accused while in his statement under Section 161 Cr.P.C. he stated colour of the pants to be blue.

viii. that the 2nd IO has stated in his crossexamination that there was street light at the spot but he has not shown the said street light in the site plan.

ix. that the 2nd IO did not investigate to whom private Wagon R car DL 8CAP 3149 belonged to and who was the owner of the said vehicle used in conducting the raid.

x. that the 2nd IO did not see result of field testing kit.

xi. that the 2nd IO stated that statements of Attar Singh and MHC(M) were recorded in his own handwriting while Inspector Attar Singh and MHC(M) stated that the same were typed.

23. On these grounds, the Ld. Counsel for the accused has argued that case of the prosecution is full of contradictions and improbabilities and hence the accused is liable to be acquitted.

SC No. 398/2017 Page 20 of 64

State vs. Haripal Judgment dt.16.02.2024 DISCUSSION ON THE POINT OF COMPLIANCE OF SECTION 42 OF THE NDPS ACT:

24. As per settled provision of Section 42 of the Act, the concerned police officer is required to inform his immediate senior officer about the secret information within 72 hours of its receipt.

25. In regard to the compliance of Section 42 NDPS Act, the prosecution has examined four witnesses PW2 ACP Sanjeev Tyagi, PW3 SI Vinod Kumar, the 1 st IO, PW6 ASI Dinesh Kumar and PW8 Inspector Rajni Kant.

26. In this regard, PW3 SI Vinod Kumar deposed that on 04.10.2017, when he was present in his office, at 7.30 am, a secret informer came at the office and informed him that one person, namely, Haripal who is indulged in supply of heroin, wholesale and retail in Delhi & NCR after procuring heroin from Bareily and would be coming in between 9.00 to 9.30 am along with consignment of heroin at Patparganj Industrial Area, near nala, Telco T Point i.e. road leading towards Anand Vihar to deliver the same to someone and if raid is conducted, he could be apprehended along with contraband. He further deposed that he produced the said secret informer before PW8 Inspector Rajni Kant at about 7.45 am,, who made enquiry from the secret informer who further communicated the same to Sh. Sanjeev Tyagi, ACP, Narcotics Cell telephonically who directed to take legal SC No. 398/2017 Page 21 of 64 State vs. Haripal Judgment dt.16.02.2024 action as per law. He also made DD entry vide DD No. 3 in duplicate regarding the secret information and brought the carbon copy of the same on record which is Ex.PW3/A. He produced the original DD before PW8 Inspector Rajni Kant who forwarded the same to the ACP/PW2 Sh. Sanjeev Tyagi for the proceedings under Section 42 of the NDPS Act.

27. In the crossexamination, he stated that he was alone in his office when the secret informer came to him regarding secret information. He further stated that the secret informer did not disclose the name of the father of the accused. He further stated that he had noted the physical description of the accused on the rough paper as disclosed by the secret informer. He did not give that paper to the IO. He further stated that the secret information did not tell the quantity of the contraband to be brought by the accused. He further stated that he had asked the secret informer as to whether he has any enmity with the accused or about the criminal record of the accused which he replied in negative. He further stated that he had informed Inspector Rajni Kant at 7.45 pm on 04.10.2017. Inspector Ranji Kant informed the ACP about the secret information on telephone in his presence. He denied the suggestion that he had not received any such secret information and he is deposing falsely.

28. The aforesaid crossexamination of the witness SC No. 398/2017 Page 22 of 64 State vs. Haripal Judgment dt.16.02.2024 shows that nothing could be extracted from the testimony of the witness to assail his version about receipt of the secret information and passing on the information to his immediate senior officer within prescribed time.

29. The testimony of PW3 SI Vinod Kumar has been duly supported by PW8 Inspector Rajni Kant who deposed that on 04.10.2017, at about 7.45 am, SI Vinod along with informer came to his office and informed him about the secret information. He inquired from the informer regarding the information and after getting himself satisfied with the information, he passed on the information telephonically to ACP/N&CP Sh. Sanjeev Tyagi, who directed to take action as per law. He further deposed that later on SI Vinod produced DD no. 3 regarding the secret information in compliance of proceedings under Section 42 of the NDPC Act which he forwarded to ACP.

30. This witness has not been crossexamined on the aspect that SI Vinod had produced the informer before him and this part of his testimony has gone unrebutted.

31. In order to prove that the said information was passed onto the ACP concerned within 72 hours, the prosecution has examined PW6 ASI Dinesh Kumar who was posted as Reader to ACP, Narcotics during the relevant time who brought on record the relevant records to fortify the claim of the prosecution that the information SC No. 398/2017 Page 23 of 64 State vs. Haripal Judgment dt.16.02.2024 about the secret information was sent to the ACP within the prescribed time. This witness deposed that on 04.10.2017, he received DD no. 3 dated 04.10.2017 regarding report under Section 42 NDPS Act sent by SI Vinod Kumar and forwarded by Inspector Rajni Kant Sharma through dak. He made entry in this regard in Diary register at Serial No. 1804 dated 04.10.2017. He further deposed that the DD was produced before the ACP on the same date who made signatures thereon after going through the same. He brought on record the copy of the DD signed by the ACP which is EX. PW6/A and copy of relevant entry as Ex.PW6/B.

32. In the crossexamination, this witness stated that he does not remember the time when the DD no. 3 was received in his office. He voluntarily stated that the diary register in their office does not have column of time. He admitted that no time is mentioned on DD no. 3 and report under Section 57 NDPS regarding receiving in their office. He admitted that the ACP had not put the time on any of the documents which were seen by him. He admitted that entries in the diary register do not bear the signature of ACP. He denied the suggestion that all the entires were made ante time and ante dated to suit the case of the IO and that is why nowhere any time is mentioned regarding receiving of the aforesaid copies in their office.

33. The aforesaid crossexamination would reveal that SC No. 398/2017 Page 24 of 64 State vs. Haripal Judgment dt.16.02.2024 it is mainly centred around non mentioning of time on DD No. 3 and reports under Section 57 NDPS Act received by him through dak, however the witness has clarified that the dairy register does not have column of time and that is why time is not mentioned.

34. Perusal of Ex. PW6/B would show that the same is the copy of the diary of correspondence register and it does not have any column of time. The DD no. 3 Ex. PW6/A has been duly signed by ACP and under signatures he put the date as 04.10.2017 and it clearly shows that he had seen the DD no. 3 on 04.10.2017 itself. Therefore, only because the time is not mentioned on DD no. 3 Ex.PW6/A, it cannot be concluded that the entries are ante time and ante dated.

35. PW2 ACP Sanjay Tyagi has very well supported the testimony of PW6 ASI Dinesh Kumar and PW8 Inspector Rajni Kant who deposed that on 04.10.2017, just before 8.00 am, Inspector Rajni Kant telephonically informed him that one person namely Haripal was bringing heroin near Patparganj Industrial Bride between 99.30 am. He directed to conduct raid immediately. He further deposed that after reaching his office, a report under Section 42 NDPS Act i.e. DD No. 3 dated 04.10.2017 written by SI Vinod Kumar was produced before him and he signed the same after going through it.

36. This witness was not crossexamined at all and his SC No. 398/2017 Page 25 of 64 State vs. Haripal Judgment dt.16.02.2024 testimony regarding intimation of secret information to him by PW8 Inspector Rajni Kant and production of DD No. 3 before him on the date of receipt of the information itself has gone uncontroverted.

37. The Ld. Defence Counsel though argued that PW3 SI Vinod Kumar during his crossexamination has stated that Inspector Rajni Kant had informed the ACP about the secret information on telephone in his presence, whereas PW8 Inspector Rajni Kant could not recollect whether he called the ACP on his mobile or on landline number and it creates doubt on the prosecution story about transmission of secret information to the ACP. However, this argument of the Ld. Defence Counsel has no substance. It has come on record from the testimonies of above witnesses that PW2 ACP Sanjeev Tyagi had received the intimation of secret information telephonically from PW8 Inspector Rajni Kant on the same day of its receipt i.e. on 04.10.2017 and if PW8 Inspector Rajni Kant could not recollect the fact due to time gap whether he made the call on mobile phone or on landline number of the ACP, it does not make any difference as the fact of the matter remains that intimation regarding secret information was timely transmitted to the ACP in compliance of Section 42 of the NDPS Act.

38. From the testimonies of aforesaid witnesses, it is established on record that a secret information about the SC No. 398/2017 Page 26 of 64 State vs. Haripal Judgment dt.16.02.2024 movement of accused was received by PW3 SI Vinod Kumar at Office of Narcotics Cell, Crime Branch, Kotwali, Delhi on 04.10.2017, at about 7.30 am and gist of the same was mentioned in the DD no. 3 Ex.PW6/A. It is further established that PW3 SI Vinod Kumar handed over this DD to his senior officer i.e. PW8 Inspector Rajni Kant who after putting his endorsement forwarded the same to PW2 ACP Sanjeev Tyagi which was acknowledged in the Office of ACP on 04.10.2017 vide entry no.1804, copy of which is also brought on record as Ex.PW6/B. It is also established on record that DD No. 3 regarding the secret information was produced before PW2 ACP Sanjeev Tyagi within the prescribed time. It is, thus, held that compliance of Section 42 NDPS Act has been properly made in the present case.

DISCUSSION ON THE POINT OF RECOVERY OF CONTRABAND:

39. As per prosecution case, on 04.10.2017, a secret information was received by SI Vinod Kumar whereupon he with permission of his superiors constituted a raiding team comprising of himself, HC Birbal and HC Dharmender. The raid was conducted at the place of information and the accused was apprehended from whom 200 grams of heroin was effected.

40. In order to prove its case, the prosecution has examined recovery witnesses, namely, PW3 SI Vinod SC No. 398/2017 Page 27 of 64 State vs. Haripal Judgment dt.16.02.2024 Kumar, PW5 HC Birbal and PW11 ASI Dharmender (the then Head Constable). All the recovery witnesses have spelled out in detail the manner in which the accused was apprehended and recovery of contraband was effected from him.

41. PW3 SI Vinod Kumar, who is the first IO and In charge of the raiding team, deposed that they left Office of the Narcotics Cell in a private Wagon R car No. DL8C P 3419 at about 8.30 am vide DD No. 4 and he was having IO kit, field testing kit and electronic weighing machine with him. He further deposed that they reached at the spot at 9.00 am and on the way he requested 45 public persons to join the raiding party after disclosing the secret information to them at two places i.e. Shantivan red light and Karkarimor but none agreed. He then briefed the raiding party and they all took their position at 9.10 am and at about 9.20 am, the secret informer pointed out towards one person coming from the side of Anand Vihar Bus Terminal and identified him as Haripal (the accused) and, thereafter, the secret informer left the spot. The witness further deposed that he along with the raiding party apprehended the accused and he again asked 45 public persons to join the raiding party but none agreed. He introduced himself to the accused and he conveyed the secret information to the accused and, thereafter, the accused was served with the notice u/s 50 of the NDPS Act, but the accused refused to have his search conducted SC No. 398/2017 Page 28 of 64 State vs. Haripal Judgment dt.16.02.2024 in the presence of a Gazetted officer or a Magistrate. He further deposed that the accused was searched and one transparent polythene containing some brownish powder was recovered from the right pocket of his wearing black pants which on testing was found to be heroin and on weighing the same it was found 200 grams.

42. The aforesaid testimony of PW3 SI Vinod Kumar, the 1st IO has been duly corroborated by other two recovery witnesses PW5 HC Birbal and PW11 ASI Dharmender. They have deposed on the similar lines as deposed by PW3 SI Vinod Kumar and very well supported his version regarding recovery of the contraband from the possession of the accused.

43. All the raiding team members have properly spelled out all the material facts i.e. pertaining to the time of departure of raiding team members from their office, the vehicle in which they left, the time when they reached at the spot, what articles they carried with them, where they took their positions, the manner in which they apprehended the accused, how much contraband was recovered, colour of the pants of the accused from which the contraband was recovered, how much contraband was taken out for sample and number of samples prepared by the IO.

44. In the crossexamination of the above recovery witnesses including the 1st IO, nothing material could be SC No. 398/2017 Page 29 of 64 State vs. Haripal Judgment dt.16.02.2024 brought on record by the Ld. Defence Counsel to disbelieve their version.

45. PW3 SI Vinod Kumar, the 1st IO categorically stated in his crossexamination that he had recovered the contraband heroin from the pocket of wearing pant of the accused. He further stated that the secret informer did not tell about the place i.e. pocket of the wearing pant from which the contraband was recovered.

46. PW5 HC Birbal during his crossexamination stated that he had stated in his statement that the recovery was effected from right pocket of black pant. He was confronted with his statement Mark X where blue pant is written.

47. There is nothing material in the crossexamination of PW11 ASI Dharmender to impeach his testimony regarding recovery of contraband from the possession of the accused.

48. The aforesaid crossexamination of the recovery witnesses makes it clear that the contraband was recovered from the wearing pants of the accused.

49. The Ld. Defence Counsel though referring the crossexamination of PW5 HC Birbal has pointed out that the witness in his statement recorded under Section 161 Cr.P.C. Mark X mentioned the colour of the wearing pants of the accused as blue, while during his cross SC No. 398/2017 Page 30 of 64 State vs. Haripal Judgment dt.16.02.2024 examination he stated that the accused was wearing black colour pant. He argued that this contradiction in the statements of this witness creates doubt on his version that he was part of the raiding team.

50. However, I do not find any substance in this argument of the Ld. Defence Counsel. The contradiction pointed out by him is very trivial in nature. The entire testimony of a witness has to be read to assess his credibility and minor contradictions here and there would not make his testimony doubtful or consequently, the prosecution case doubtful.

51. The witnesses normally come to depose after long gap of time of the joining investigation, thus, it is quite natural that some minor contradictions would surface but these minor contradictions are liable to be ignored till the time they don't touch the core of the case. In the case of State of Rajasthan vs. Kalki, AIR 1981 SC 1390 their Lordships have observed that, "In the deposition of witnesses there are always normal discrepancies, however honest and truthful they may be". It was further observed that, "These discrepancies are due to normal errors of observations, normal errors of memory, due to lapse of time and due to mental disposition such as shock and horror at the time of occurrence and the like. Dealing with the aspect of minor discrepancies, contradictions, the Hon'ble Supreme Court of India in the matter of SC No. 398/2017 Page 31 of 64 State vs. Haripal Judgment dt.16.02.2024 Jugendra Singh vs State of U.P., reported in II (2012) CCR 431 (SC)=IV (2012) SLT 244=II (2012) DLT (Crl.) 794 (SC)= AIR 2012 SC 2254, held as under: "The Court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal efforts of perception or observation should not be given importance. The errors due to lapse of memory may be given due allowance. The Court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witness. When a doubt arises in respect of certain facts alleged by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story. The witnesses nowadays go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the Court. The Courts, however, should not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy."

52. As such, some minor contradictions are bound to occur due to time gap and witness cannot be expected to remember all the facts with all minute details. So, merely on the ground of contradiction in the statements of the witness regarding the colour of the wearing pants of the accused, the factum of his being part of the raiding team cannot be doubted, more so when he stood firm on the other material aspects of the case during his cross examination. Moreover, PW5 HC Birbal during his chief SC No. 398/2017 Page 32 of 64 State vs. Haripal Judgment dt.16.02.2024 examination had correctly identified the accused in the Court as the person from whose possession the contraband was recovered. Apart from this, the other two recovery witnesses (PW3 and PW11) have categorically stated that the contraband was recovered from the right pocket of black colour wearing pants of the accused whose testimony could not be impeached on this point by the Ld. Defence counsel during their crossexamination.

53. The accused though has claimed that he has been falsely implicated in the present case and contraband was planted upon him after he was detailed at Old Delhi Railway Station when he was asked to give the names of the people who were dealing with heroin and opium and the police officials had to meet their target and when he did not give their names, he was falsely implicated. However, this defence does not appear to be plausible and as he simply claimed false implication and foisting of contraband upon him on the above ground but he has neither claimed animosity nor acquaintance with the police officials; hence, there is no reasonable ground for his false implication on the said vague and bald plea.

54. In view of the aforesaid discussions, it is held that prosecution has successfully proved the recovery of contraband from the possession of the accused.

SC No. 398/2017 Page 33 of 64

State vs. Haripal Judgment dt.16.02.2024 DISCUSSION ON THE POINT OF COMPLIANCE OF SECTION 50 OF NDPS ACT

55. The legal position in respect to the Section 50 NDPS Act has been laid down by Hon'ble Supreme Court in the case titled as State vs Baldev Singh reported as 1999 AIR (SC) 2378 that the compliance of the provisions of section 50 NDPS Act is mandatory. It is also held in this case that the compliance of this provision is not necessary where recovery was effected without prior information and where it was the case of a chance recovery. The relevant para of this judgment reads as under:

11. On its plain reading, Section 50 would come into play only in the case of a search of a person as distinguished from search of any premises etc. However, if the empowered officer, without any prior information as contemplated by Section 42 of the Act makes a search or causes arrest of person during the normal course of investigation into an offence or suspected offence and on completion of that search, a contraband under the Narcotic Drugs And Psychotropic Substances Act is also recovered, the requirements of Section 50 of the Act are not attracted.

56. In the case titled as State of Punjab vs. Balbir Singh reported as 1994(3) SCC 299, same view has been taken by Hon'ble Supreme Court. The relevant para reads as under:

27. The questions considered above arise frequently before the trial courts. Therefore, we find it SC No. 398/2017 Page 34 of 64 State vs. Haripal Judgment dt.16.02.2024 necessary to set out our conclusions which are as follows :

1) If a police officer without any prior information as contemplated under the provisions of the Narcotic Drugs And Psychotropic Substances Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offence as provided under the provisions of Cr P.C. and when such search is completed at that stage Section 50 of the Narcotic Drugs and Psychotropic Substances Act would not be attracted and the question of complying with the requirements thereunder would not arise.

If during such search or arrest there is a chance recovery of any narcotic drug or Psychotropic substance then the police officer, who is not empowered, should inform the empowered officer who should thereafter proceed in accordance with the provisions of the Narcotic Drugs And Psychotropic Substances Act. If he happens to be an empowered officer also, then from that stage onwards. he should carry out the investigation in accordance with the other provisions of the Narcotic Drugs And Psychotropic Substances Act.

57. As per prosecution case, after apprehension of the accused, he was served with the mandatory notice under Section 50 of the NDPS Act and only after his refusal to avail his legal rights, his search was carried out. However, the accused in his statement recorded under Section 313 Cr.P.C. has denied to have been served with any such notice at the spot or to have written his refusal in his own handwriting. In view of the said claim of the accused, it is to be seen whether or not compliance of Section 50 of the NDPS Act was properly made before the search of the accused.

SC No. 398/2017 Page 35 of 64

State vs. Haripal Judgment dt.16.02.2024

58. In this regard, PW3 SI Vinod Kumar, the 1 st IO of the case and the Incharge of the raiding team deposed that after apprehension of the accused, he interrogated the accused who told his name as Haripal. He further deposed that the accused was told that the raiding party was having secret information that he used to procure heroin from Bareily, UP for supplying in Delhi and at that time also he was in possession of heroin in order to supply the same to somebody and there were chances of recovery of heroin from him and for the said reason, his search had to be conducted. He further deposed that the accused was also apprised about his legal rights to be searched in the presence of a Gazetted Officer or a Magistrate and for the said purpose, they could be called at the sport or he could be produced before them. The meaning of Gazetted Officer and Magistrate was explained to the accused and the accused was also offered search of the raiding party and the car in which the raiding party had come prior to his search, but the accused refused for his search in the presence of Gazetted Officer or Magistrate and also refused to take search of the raiding party prior to his search. The witness further deposed that he prepared notice under Section 50 of the NDPS Act in carbon and served the original notice to the accused who wrote the reply of the notice on the carbon copy of the notice Ex.PW3/A and, thereafter, the accused was searched and the contraband was recovered from his wearing pants.

SC No. 398/2017 Page 36 of 64

State vs. Haripal Judgment dt.16.02.2024 PW3 SI Vinod Kumar further deposed that after arrest of the accused, his personal search was conducted by ASI Rohtas vide personal search memo Ex.PW3/F during which original notice under Section 50 of the NDPS Act besides other belongings of the accused was recovered.

59. In his crossexamination, PW3 SI Vinod Kumar stated that he had prepared the notice under Section 50 NDPS Act in his own handwriting and he did not take help of any other person while preparing the notice under Section 50 of the NDPS Act. He had explained the accused about the meaning of Gazetted Officer and Magistrate in simple words. He had told the accused that govt. officer who has power to attest the document is Gazetted Officer and the judge who sits in court and imparts justice is Magistrate. He further stated that he had not informed the Gazetted officer or the Magistrate that their presence may be required for conducting the proceeding under NDPS Act. He denied the suggestion that the signature of the accused appears to be different on the front page of notice and back page of notice under Section 50 of the NDPS Act at point A and B on Ex. PW3/A. He was further suggested that notice under Section 50 of the NDPS Act Ex. PW3/A does not bear the signature of the accused at points A and B which he denied. He further denied the suggestion that no notice under Section 50 of the NDPS Act was served upon the accused and the accused was not explained the meaning of SC No. 398/2017 Page 37 of 64 State vs. Haripal Judgment dt.16.02.2024 Gazetted Officer or Magistrate.

60. The aforesaid crossexamination of PW3 SI Vinod Kumar clearly shows that the Ld. Defence Counsel could not impeach his testimony regarding preparation of notice under Section 50 of the NDPS Act by him in duplicate and service of the original notice upon the accused before his search. Though the Ld. Counsel for the accused has tried to make out a case that the signatures of the accused on the carbon copy of the notice Ex.PW3/A at points A and B are different which suggestion has been denied by the witness. I have gone though the notice Ex. PW3/A and do not find any difference in the signatures of the accused at points Y and Y1 as the signatures at points A and B are of IO SI Vinod Kumar. The accused has also not led any evidence to show that his signatures on the front and back page of the notice Ex.PW3/A at points Y and Y1 are different or do not belong to him. Hence, this claim of the accused has remained unsubstantiated.

61. The Ld. Counsel for the accused during course of the arguments has also argued that PW3 SI Vinod Kumar, the 1st IO did not depose as per Section 50 of the NDPS Act as he did not offer the accused to be searched in the presence of nearest Gazetted Officer or Magistrate. He further argued that since word 'nearest' is missing in the deposition of PW3 SI Vinod Kumar, there was no proper compliance of Section 50 of the NDPS Act and in SC No. 398/2017 Page 38 of 64 State vs. Haripal Judgment dt.16.02.2024 the absence of proper compliance, the process of serving the notice stood vitiated and the accused is entitled to be acquitted for this defect alone.

62. However, this contention of the Ld. Counsel for the accused is contrary to the record. Perusal of the notice Ex.PW3/A clearly shows that the accused was offered to be produced before the 'nearest' Gazetted Officer or Magistrate. Merely because word 'nearest' is missing in the deposition of PW3 SI Vinod Kumar, it cannot be said that the accused was not properly communicated about his legal right to be searched in the presence of nearest Gazetted Officer or Magistrate and there was breach of Section 50 of the NDPS Act. Further, the other two recovery witnesses have deposed in terms of Section 50 of the NDPS Act.

63. In this regard, PW5 HC Birbal and PW11 ASI Dharmender (the then Head Constable) who were the members of the raiding party in their respective chief examination have deposed on the similar lines that IO informed the accused that if he wanted, he could be produced before nearest Gazetted Officer/ Magistrate before conducing his personal search and also informed him that if he intended to conduct the personal search of the members of raiding team and the private vehicle, he may do the same. They further deposed that IO had also explained the same to the accused.

SC No. 398/2017 Page 39 of 64

State vs. Haripal Judgment dt.16.02.2024

64. In their crossexamination, nothing material could be brought on the record by the Ld. Defence Counsel to impeach their testimonies with regard to compliance of Section 50 of the NDPS Act by the 1st IO SI Vinod Kumar.

65. PW5 HC Birbal categorically stated in his cross examination that notice under Section 50 was prepared by SI Vinod in his writing while keeping the papers on bonnet of the car. He was suggested that no notice under Section 50 was given to the accused on the spot and the accused was not explained meaning of gazetted officer which he denied.

66. Similarly, PW11 ASI Dharmender categorically stated in his crossexamination that notice Section 50 of the NDPS Act was prepared by SI Vinod firstly after reaching on the spot and apprehension of the accused. He did not remember whether the registration number of their vehicle which was offered to be searched by the accused was noted down in the notice under Section 50. He denied the suggestion that signature of the accused at point Y and Y1 on Ex. PW3/A are different.

67. From the aforesaid crossexamination of above two recovery witnesses, the accused though has tried to make out a case that he was not served with any notice under Section 50 on the spot and he was also not explained meaning of gazetted officer or Magistrate and that his SC No. 398/2017 Page 40 of 64 State vs. Haripal Judgment dt.16.02.2024 signatures on the notice at two places are different. However, it is clear from the reply of the accused on carbon copy of the notice Ex.PW3/A that he admitted in his own handwriting that he was served with the original notice and was also explained contents of the same as well as the meaning of the Magistrate and Gazetted Officer. The 1st IO PW3 SI Vinod Kumar was also cross examined on this aspect who clearly stated that he had explained the accused about meaning of Gazetted Officer and Magistrate in simple words. As regards the contention of the accused that his signatures at points Y and Y1 are different, as discussed above, this contention of the accused has remained unsubstantiated in the absence of any evidence led by him.

68. In view of the testimonies of above recovery witnesses, the prosecution has successfully proved on record that the accused was properly served with the notice under Section 50 of the NDPS Act before his search and there was no violation of the said mandatory provision.

DISCUSSION ON THE POINT OF SEIZURE OF CONTRABAND, PROCEEDINGS REGARDING DRAWING OF SAMPLE AND COMPLIANCE OF SECTION 55 OF THE NDPS ACT

69. As per the prosecution case, PW3 SI Vinod Kumar, the first IO of the case after getting the recovery effected from the possession of the accused, seized the SC No. 398/2017 Page 41 of 64 State vs. Haripal Judgment dt.16.02.2024 same and drew samples. He deposed that the brownish powder recovered from the right pocket of his wearing black pants on checking on the field testing kit was found positive for heroin. He weighed the entire recovered powder along with polythene and it was found to be 200 grams. He further deposed that he drew two samples of 5 grams each and kept them in separate two transparent polythenes, which were converted into two cloth parcels and these samples were given Mark A & B. He also converted the remaining contraband of 190 grams into cloth parcel and sealed all the parcels with the seal of 2APS/NB DELHI. He also filled up the FSL form at the spot and seized all the sealed parcels vide seizure memo Ex.PW3/B and handed over the seal to HC Birbal. He, thereafter, prepared rukka Ex.PW3/C and handed over the same to HC Dharmender along with three sealed parcels, carbon copy of seizure memo and FSL form with direction to hand over rukka to Duty officer PS Crime Branch and the sealed parcels to the SHO PS Crime Branch.

70. The aforesaid testimony of PW3 SI Vinod Kumar, the 1st IO has been duly corroborated by PW5 HC Birbal and PW11 ASI Dharmender who are witnesses to the seizure of contraband by the 1st IO from the possession of the accused and its sampling. They have deposed on the similar lines as deposed by PW3 SI Vinod Kumar and very well supported his version regarding seizure of the SC No. 398/2017 Page 42 of 64 State vs. Haripal Judgment dt.16.02.2024 contraband from the possession of the accused, its sampling and sealing.

71. In the crossexamination of the above recovery witnesses including the 1st IO, nothing material could be brought on record by the Ld. Defence Counsel to disbelieve their version regarding seizure of 200 grams of heroin recovered from the possession of the accused, its sealing and sampling done by PW3 SI Vinod Kumar on the spot.

72. It has come from the testimonies of recovery witnesses that IO SI Vinod Kumar after seizure of the contraband from the possession of the accused sealed the same and sent the case property to the SHO PS Crime Branch through PW11 ASI Dharmender (the then Head Constable).

73. In this regard, PW11 ASI Dharmender in his cross examination stated that he had not used any carry bag for taking the pullandas and samples to PS Crime Branch, Pushp vihar. He voluntarily stated that he took pullandas and sample in the car bearing registration no. DL 8CP 3419. He further stated that they reached at PS Crime Branch Pushp Vihar from the spot within one and half hour. He had not mentioned any entry regarding arrival and depositing the case property in PS Crime Branch Pushp Vihar in the roznamcha. He stated that first he met the DO of PS Crime Branch Pushp Vihar who asked to SC No. 398/2017 Page 43 of 64 State vs. Haripal Judgment dt.16.02.2024 wait as the SHO was not available in the PS. He further stated that the SHO had signed against the entry of depositing the case property in the malkhana in register no. 19 in his presence.

74. The aforesaid statements made by PW11 ASI Dharmender during his crossexamination have been corroborated by PW9 Inspector Attar Singh, the then SHO, PS Crime Branch. He deposed that on 04.10.2017, at around 4.20 pm, HC Dharmender came to his office and handed over to him the 3 sealed pullandas Mark A, B and C which were sealed with the seal of 2A/PSNB, Delhi. He thereafter put his seal of AS on all these pullandas and on FSL form and got deposited these pullandas, carbon copy of seizure memo and FSL form through MHCM (PW4) who made relevant entry in the Register No.19 which was signed by him. In this regard, he also made an entry vide DD no. 13 in the Roznamcha in compliance of Section 55 of the NDPS Act certified copy of which is Ex.PW9/A.

75. The aforesaid testimony of PW9 Inspector Attar Singh, the then SHO, PS Crime Branch and PW11 ASI Dharmender regarding deposit of case property in the malkhana has been corroborated by PW4 ASI Jagnarain, the then MHC(M), PS Crime Branch who deposed that on 04.10.2017, he was called by Inspector Attar Singh, SHO, PS Crime Branch who gave him three sealed pullandas SC No. 398/2017 Page 44 of 64 State vs. Haripal Judgment dt.16.02.2024 marked A, B and C bearing seal of '2A PS NB DELHI' and 'AS' along with FSL form bearing the same seals and carbon copy of seizure memo and he made entry in this regard in register no. 19 at serial no. 2806. He produced copy of the relevant page of the register showing the said entry as Ex. PW4/A.

76. There is nothing material in the crossexamination of PW4 ASI Jagnarain and PW9 Inspector Attar Singh to impeach their testimonies regarding deposit of case property in the malkhana in compliance of Section 55 of the NDPS Act.

77. The Ld. Defence Counsel though has referred to the part of crossexamination of PW9 inspector Attar Singh in the written submissions and contended that the statement of the witness creates doubt that he himself affixed his seal 'AS' on the pullandas marked A to C and FSL form and hence it cannot be said that there was proper compliance of Section 55 of the NDPS Act.

78. The crossexamination of the witness as referred by the Ld. Defence Counsel is as follows: "I had gone through the carbon copy of the seizure memo. The weight of the heroin was mentioned on the seizure memo as 200 grams of heroin. I do not remember the weight of the sample pullanda".

79. Again, I do not find any substance in the argument of the Ld. Defence Counsel. As noted above, the entire SC No. 398/2017 Page 45 of 64 State vs. Haripal Judgment dt.16.02.2024 testimony of a witness has to be read to assess his credibility and the witness cannot be expected to remember all the facts with all minute details due to time gap. So, the testimony of PW9 Inspector Attar Singh that he affixed his seal 'AS' on the sealed pullandas and the FSL form 11 and, thereafter, got deposited the same in the malkhana cannot be doubted merely because he did not remember the weight of the sample pullanda. The witness categorically stated during his later part of the cross examination that he was having his seal with him at that time. He did not deposit his seal in the malkhana. He further stated that the said seal is his permanent seal and the same was not issued by department. He volunteered that the seal was prepared and issued by Head Assistant, General Branch, Delhi Police. He confirmed the presence of HC Dharmender when MHCM/ASI Jagnarain came to his office and at the time of entry in the register no. 19.

80. Ld. Defence Counsel has also argued that no handing over memo and returning memo of the seal was prepared by 1st IO PW3 SI Vinod Kumar and in the absence of the same possibility of tampering with the case property cannot be ruled out.

81. In the instant case, it is clear from the prosecution evidence that after recovery of contraband, the sample pullandas Mark A and B and the pullanda of case property Mark C were sealed by the PW3 SI Vinod Kumar, the 1 st SC No. 398/2017 Page 46 of 64 State vs. Haripal Judgment dt.16.02.2024 IO with seal of '2APS/NB DELHI' and, thereafter, he handed over the sealed pullandas along with FSL form and carbon copy of the FSL form to PW11 ASI Dharmender at around 1.30 pm to be handed over to the SHO. PW11 ASI Dharmender reached at PS Crime Branch Pushp Vihar within one and half hour i.e. at around 3.00 pm but at that time the SHO was not available in the police station. It is further evident from the testimony of PW9 Inspector Attar Singh, the then SHO that on 04.10.2017, at around 4.20 pm, HC Dharmender handed over him sealed pullandas bearing Mark A, B and C duly sealed with the seal of 2A/PSNB, Delhi and, thereafter, PW9 put his own seal on the samples and immediately deposited the same with PW4 ASI Jagnarain, the then MHC(M).

82. It is, thus, clear that immediately after sealing the sample, without wasting any time the sample pullandas were deposited in the malkhana and there was no possibility of anyone tampering with the sample. PW11 ASI Dharmender who carried the sealed pullandas with him to be handed over to the SHO also deposed in his chief examination that the seal on the pullandas remained intact during the time it remained in his custody and no tampering was done on which there is no cross examination of the witness.

83. Similarly, PW7 Ct. Rohit who got deposited the SC No. 398/2017 Page 47 of 64 State vs. Haripal Judgment dt.16.02.2024 sample/exhibit at FSL Rohini for chemical examination also deposed that when he collected sealed pullanda Mark A1, the seal impression of 2A PS/NB DELHI and AS were there. He also deposed that the till the seal pullanda remained in his custody, the seal remained intact and it was not tampered with. The witness was not cross examined at all on this aspect and this part of his testimony has gone unrebutted.

84. It is further clear from the FSL Report Ex.PA1 that the cloth parcel Mark A was received by the FSL with the above said two seals '2A PS/NB DELHI' and 'AS' which were found to be intact. Hence, question of tampering of sample by anyone does not arise and the contention of the Ld. Defence Counsel that since no handing over and returning memo was prepared in the present case, possibility of tampering with the sample cannot be ruled out does not hold any water.

85. In view of these discussions, it is apparent that after recovery of contraband, the sampling was done on the spot and the 1st IO PW3 SI Vinod Kumar after sealing the samples and the case property did not retain the seal with him and handed over the same to PW11 ASI Dharmender who also corroborated the same. It is further evident that immediately after seizure, the pullandas of the contraband, samples and FSL form were sent to PW9 Inspector Attar Singh, then SHO who also put his seal and immediately SC No. 398/2017 Page 48 of 64 State vs. Haripal Judgment dt.16.02.2024 deposited the case property in the Malkhana. Hence, it stands proved that compliance of Section 55 of the NDPS Act has been made in the instant case.

DISCUSSION ON THE POINT OF COMPLIANCE OF SECTION 57 OF NDPS ACT

86. In order to prove that the information regarding arrest of the accused and seizure of the contraband from the possession of the accused was made to the ACP concerned within the prescribed time, the prosecution has examined PW2 Sanjeev Tyagi, the then ACP, Narcotics, Crime Branch who deposed that on 05.10.2017, two reports under Section 57 of the NDPS Act dated 04.10.2017, one prepared by SI Vinod Kumar regarding seizure of 200 grams heroin form accused Haripal and second report prepared by ASI Rohtash Singh regarding arrest of the accused, both reports forwarded by Inspector Ranjikant were produced before him. He had signed both the reports after satisfying himself regarding the contents of the same.

87. This witness was not crossexamined at all by the Ld. Defence Counsel and his aforesaid testimony has gone unchallenged and uncontroverted.

88. PW6 ASI Dinesh Kumar, who was posted as Reader to ACP Narcotics Sh. Sanjeev Kumar Tyagi has brought on record the aforesaid two reports under Section 57 of the NDPS Act as Ex.PW6/C and Ex.PW6/E duly SC No. 398/2017 Page 49 of 64 State vs. Haripal Judgment dt.16.02.2024 signed by PW2 ACP Sanjeev Tyagi. This witness deposed that on 05.10.2017, a report under Section 57 NDPS Act (Ex.PW6/C) regarding seizure of 200 grams heroin from the possession of accused Haripal prepared by SI Vinod Kumar and another report under Section 57 NDPS Act (Ex.PW6/E) regarding arrest of the accused prepared by ASI Rohtash Singh were received in the office through dak and he made entries in this regard in the register at Serial Nos 1809 and 1810 respectively. He further deposed that both the reports were produced before ACP on the same day who signed both the reports after going through the same. He has placed on record the copy of the relevant entries as Ex.PW6/D and PW6/F.

89. Crossexamination of this witness has already been discussed herein above which was centred around non mentioning of time of receiving of the documents in their office including the reports under Section 57 of the NDPS Act. Perusal of both the reports Ex.PW6/C and Ex.PW6/E shows that the same have been produced and signed by the ACP on the same day of its receipt and within the prescribed time and hence if no time is mentioned in the register of receipt of these reports, it does not affect the case of the prosecution that both the reports were duly produced before the ACP concerned within prescribed time.

90. From the aforesaid testimonies of PW2 ACP SC No. 398/2017 Page 50 of 64 State vs. Haripal Judgment dt.16.02.2024 Sanjeev Tyagi and PW6 ASI Dinesh Kumar, the prosecution has successfully proved on record that two reports under Section 57 of the NDPS Act, one prepared by SI Vinod Kumar, the first IO regarding seizure of the contraband from the possession of the accused Ex.PW6/C and another prepared by ASI Rohtash, regarding arrest of the accused Ex.PW6/E and both the reports were forwarded by Inspector Rajnikant who forwarded the same to PW2 ACP Sanjeev Tyagi who signed the same within the prescribed time and hence mandatory provision under Section 57 of the NDPS Act has been duly complied with in the instant case.

DISCUSSIONS ON THE POINT OF NON JOINING OF THE PUBLIC WITNESSES

91. During course of arguments as well as in the well in the written arguments, Ld. Defence Counsel submitted that the prosecution case is highly doubtful as no public witness has been joined during the entire investigation and the prosecution case solely rests on the testimonies of police witnesses who are not reliable and creditworthy being interested witnesses.

92. Admittedly, in the present case no public or independent witness has been joined during course of the investigation, however it is clear from the testimonies of the prosecution witnesses that PW3 SI Vinod Kumar, the 1st IO made efforts to join public witnesses, but none SC No. 398/2017 Page 51 of 64 State vs. Haripal Judgment dt.16.02.2024 agreed. Thus, once it has come on record that public witness could not be joined despite efforts were made then non joining of independent witness is not fatal to the prosecution case. In this regard, this court is supported by the case law i.e. Ajmer Singh vs. State of Haryana reported as 2010 (2) SCR 785. The relevant para reads as under: 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 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. 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.

93. It is well settled law that the evidence of police official cannot be doubted unless previous enmity between the accused and the police officials is shown. In Sunil Tomar vs. State of Punjab, Criminal Appeal no. 16901691 of 2012 decided on 19.10.12, it was held : SC No. 398/2017 Page 52 of 64 State vs. Haripal Judgment dt.16.02.2024 'In a case of this nature, it is better if prosecution examines atleast one independent witness to corroborate its case. However, in the absence of any animosity between the accused and official witnesses, there is nothing wrong in relying upon their testimonies and accepting the documents placed for basing conviction. After taking into account the entire material relied upon by the prosecution, there is no animosity established on the part of the official witnesses by the accused in defence and we also did not find any infirmity in the 0prosecution case.

94. Furthermore, the police officials are considered to be equally competent and reliable witnesses and their testimony can be relied upon even without corroboration by an independent witness if same is cogent and reliable. In Rohtas vs. State of Haryana, JT 2013(8) SC 181, Hon'ble Supreme Court held that : 'Where all the witnesses are from police department, their depositions must be subject to strict scrutiny. However, the evidence of police officials cannot be discarded merely on the ground that they belong to the police force and either interested in investigating or the prosecuting agency'.

95. Further, it is also not uncommon that these days people are generally reluctant to become part of investigation. In this regard, the Hon'ble High Court in the case of Bheru Lal vs, State while observing that recovery cannot be doubted for the reason of non joining of public witness held as under:

19. Dealing with a similar contention in 'Ram SC No. 398/2017 Page 53 of 64 State vs. Haripal Judgment dt.16.02.2024 Swaroop v. State (Govt. NCT) of Delhi', 2013(7) SCALE 407, where the alleged seizure took place at a crowded place yet no independent witness could be associated with the seizure, the Apex Court inter alia observed as under:

"7. ....We may note here with profit there is no absolute rule that police officers cannot be cited as witnesses and their depositions should be treated with suspect. In this context we may refer with profit to the dictum in State of U.P. v. Anil Singh, 1988 Supp SCC 686, wherein this Court took note of the fact that generally the public at large are reluctant to come forward to depose before the court and, therefore, the prosecution case cannot be doubted for nonexamining the independent witnesses."

96. Thus, in view of the settled legal position, the testimony of the police officials examined in the instant case cannot be seen with suspicion merely for the reason of non joining of independent witness as firstly it is clear that sufficient efforts were made by the PW3 SI Vinod Kumar to join investigation. Furthermore, the testimonies of the police officials do not suffer from any material contradiction. Moreover, no animosity between the accused and the police officials has been pointed out. Therefore, even otherwise there is no reason to disbelieve the testimonies of police officials regarding non joining of public witnesses.

DISCUSSIONS ON OTHER CONTENTIONS RAISED BY THE LD. DEFENCE COUNSEL

97. Besides, the aforesaid discussed submissions, Ld. SC No. 398/2017 Page 54 of 64 State vs. Haripal Judgment dt.16.02.2024 Defence Counsel submitted that prosecution case is highly doubtful for the following reasons also: i. that no written permission of ACP is on record to conduct the raid;

ii. that DD No. 4 regarding departure of the raiding team from the police station for the spot in a private vehicle has not been proved on record nor its photocopy had been shown to the witness despite availability on the record;

iii. that PW3 SI Vinod Kumar did not tell when and from where he got the weighing scale and field testing kit issued.

iv. that PW10 ASI Rohtash did not make any entry in record that he is going to the spot by his private car;

v. that there was street light at the spot but no street light has been shown in the site plan by the 2nd IO;

vi. that PW10 SI Rohtash Singh did not check field test kit result.

vii. that there is no departure entry of PW7 Ct. Rohit to show that he left the police station along with the sealed pullandas to be deposited with FSL Rohini.

viii. that PW3 SI Vinod Kumar stated during his cross examination that the entry of taraju and testing kit was done in the register at the office, but no register showing the said DD entry has been produced on record.

ix. that no photography or videography of the proceedings was done.

98. The contradictions and flaws pointed by Ld. SC No. 398/2017 Page 55 of 64 State vs. Haripal Judgment dt.16.02.2024 Defence Counsel are wholly insignificant and immaterial and do not touch the core of the case at all. There is no legal requirement to have the order of ACP in writing before proceeding to conduct a raid and what is required as per Section 42 NDPS Act is that the officer concerned is to communicate about the secret information, received in regard to contraband and the accused, to his superior officer within 72 hours of the receipt of such information, which has been properly done in this case by the officers concerned. Further, DD No. 3 Ex.PW6/A is on record wherein the factum of directions of the ACP to prepare the raiding team was also mentioned, which was duly signed by the ACP.

99. As regards the submissions of Ld. Defence Counsel that 1st IO did not tell from where he got the IO kit issued and that 2nd IO PW10 ASI Rohtash Singh did not mention in record that he is going to the spot by his private car, these things are immaterial as it is proved on record that a secret information was received and raid was conducted at the informed place and contraband was recovered, then sealed and seized there.

100. Similarly, if Ct. Rohit did not make any departure entry after collecting the exhibits to be deposited in the malkhana, it does not make any difference when the exhibit was duly submitted by him at FSL and FSL report had also been received.

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101. So far as the contention of the Ld. Defence Counsel that no entry of taking taraju/weighing, field testing kit was not made by the 1st IO, is concerned, all the recovery witnesses categorically deposed in their chief examination that they left the police station in a private wagon car after taking IO kit, electronic weighing machine and field testing kit vide DD No. 4. Original DD No. 4 is on record which proves the aforesaid deposition of the witnesses. Though the original DD No. 4 nor its photocopy has not been put to any of the recovery witnesses and exhibited, still it cannot be said that the said DD is not proved on record when the original DD No. 4 is on record and the same has also been referred to by the prosecution witnesses in their testimonies.

102. The prosecution case also does not become doubtful merely because the street light which was there at the spot has not been shown in the site plan when the prosecution has duly proved the recovery of contraband from the possession of the accused from the testimonies of number of witnesses as narrated above.

103. Ld. Defence Counsel has also pointed out the contradiction in the statement of PW3 and PW8 regarding capacity of the weighing machine. He contended that PW3 SI Vinod Kumar during his cross examination stated that electronic weighing machine used on the spot was small and it could weigh the material upto SC No. 398/2017 Page 57 of 64 State vs. Haripal Judgment dt.16.02.2024 half kg, whereas PW8 Inspector Rajni Kant stated in his crossexamination that the capacity of weighing machine is about 7.5 kg. However, this contradiction pointed by the Ld. Counsel for the accused does not make any dent to the case of the prosecution as it is a matter of fact that the recovered contraband from the possession of the accused could be weighed in the electronic weighing machine.

104. Moreover, PW8 Inspector Rajni Kant was not the part of the raiding team and PW3 SI Vinod Kumar had produced the secret informer before him who in turn passed on the secret information to PW2 ACP Sanjeev Tyagi and later on PW8 had forwarded the reports under Section 42 and 57 of the NDPS Act. Therefore, if in the crossexamination, PW8 stated that capacity of weighing machine is about 7.5 kg while PW3 SI Vinod Kumar, the first IO, who had carried out the raid, stated the capacity of weighing machine of ½ kilogram would not affect the credibility of the prosecution case regarding weighing of the contraband from the said weighing machine.

105. The other flaw pointed out by the Ld. Defence Counsel is that no photography or videography of the proceedings was done and in the absence thereof, the prosecution case is highly tainted. It is true that in this case, videography of the proceedings has not been done, but only on that account the accused cannot be acquitted. It is also clear from the testimony of the prosecution SC No. 398/2017 Page 58 of 64 State vs. Haripal Judgment dt.16.02.2024 witnesses that all the material witnesses were subjected to a lengthy cross examination and they very well withstood the test of cross examination and no material contradiction has surfaced in their cross examination to doubt their version.

106. The Ld. Defence Counsel though has vehemently assailed the sampling done by the 1 st IO PW3 SI Vinod Kumar during course of the arguments as well as in the written submissions. He contended that sampling was done in violation of Section 52 A (2) of the NDPS Act and the 1st IO should have drawn the samples before the Magistrate and for non compliance of the said mandatory provision, the entire prosecution case against the accused stands vitiated and on this count only, the accused is liable to be acquitted.

107. It is a matter of record that samples of the contraband recovered from the possession of the accused were drawn by SI Vinod Kumar, the 1st IO at the spot. Now, it has to be seen as to whether the act of drawing samples by the 1st IO without taking recourse to the provisions of subsection 2 of Section 52A of the NDPS Act has rendered the entire prosecution against the accused vitiated as argued by the Ld. Defence Counsel.

108. In Simaranjit Singh vs. State of Punjab, Criminal Appeal No. 1443 of 2023 decided on 09.05.2023, similar issue was raised by the Ld. Counsel for the appellant that SC No. 398/2017 Page 59 of 64 State vs. Haripal Judgment dt.16.02.2024 the prosecution is vitiated as the work of drawing sample was done by PW7 without taking recourse to subsection 2 of Section 52A of the NDPS Act.

109. The Hon'ble Apex Court while referring to paragraphs 15 to 17 of its decision in Union of India vs. Mohanlal & Anr., (2016) 3 SCC 379 observed as under: "9. Hence, the act of PW7 of drawing samples from all the packets at the time of seizure is not in conformity with the law laid down by this Court in the case of Mohanlal. This creates a serious doubt about the prosecution's case that substance recovered was a contraband".

110. With these observations, the Hon'ble Apex Court held that the the case of the prosecution is not free from suspicion and the same has not been established beyond a reasonable doubt; accordingly set aside the impugned judgments and quashed the conviction and sentence of the appellant in that case.

111. In Yusuf @ Asif vs. State, Criminal Appeal No. 3191 of 2023 decided on 13.10.2023, a case was registered in the year 2000 on the basis of information received by the Intelligence Officer of Narcotics Control Bureau. As per the information, a vehicle was intercepted on 28.03.2000 and four persons present in the vehicle were found in possession of commercial quantity i.e. 20 kilogram of heroin. After trial, all the said four persons were held guilty under the provisions of NDPS Act and SC No. 398/2017 Page 60 of 64 State vs. Haripal Judgment dt.16.02.2024 they were sentenced to rigorous imprisonment for 10 years and to pay fine of Rs. 1 lakh each, in default to undergo further imprisonment of one year. The said conviction was confirmed by the Hon'ble High Court by dismissing the appeal preferred by all the four convicts holding that there was no error in the findings of the Trial Court. Aggrieved by his conviction and sentence, one of the convicts has preferred an appeal before the Hon'ble Apex Court.

112. The Hon'ble Supreme Court taking note of provisions of Section 52A(2), (3) and (4) of the NDPS Act, held as under:

12. A simple reading of the aforesaid provisions, as also stated earlier, reveals that when any contraband/narcotic substance is seized and forwarded to the police or to the officer so mentioned under Section 53, the officer so referred to in sub section (1) shall prepare its inventory with details and description of the seized substance like quality, quantity, mode of packing, numbering and identifying marks and then make an application to any Magistrate for the purposes of certifying its correctness and for allowing to draw representative samples of such substances in the presence of the Magistrate and to certify the correctness of the list of samples so drawn.

13. Notwithstanding the defence set up from the side of the respondent in the instant case, no evidence has been brought on record to the effect that the procedure prescribed under sub sections (2), (3) and (4) of Section 52A of the NDPS Act was followed while making the seizure and drawing sample such as preparing the inventory and getting it certified by the SC No. 398/2017 Page 61 of 64 State vs. Haripal Judgment dt.16.02.2024 Magistrate. No evidence has also been brought on record that the samples were drawn in the presence of the Magistrate and the list of the samples so drawn were certified by the Magistrate. The mere fact that the samples were drawn in the presence of a gazetted officer is not sufficient compliance of the mandate of sub section (2) of Section 52A of the NDPS Act.

14. It is an admitted position on record that the samples from the seized substance were drawn by the police in the presence of the gazetted officer and not in the presence of the Magistrate. There is no material on record to prove that the Magistrate had certified the inventory of the substance seized or of the list of samples so drawn.

15. In Mohanlal's case, the apex court while dealing with Section 52A of the NDPS Act clearly laid down that it is manifest from the said provision that upon seizure of the contraband, it has to be forwarded either to the officerincharge of the nearest police station or to the officer empowered under Section 53 who is obliged to prepare an inventory of the seized contraband and then to make an application to the Magistrate for the purposes of getting its correctness certified. It has been further laid down that the samples drawn in the presence of the Magistrate and the list thereof on being certified alone would constitute primary evidence for the purposes of the trial.

16. In the absence of any material on record to establish that the samples of the seized contraband were drawn in the presence of the Magistrate and that the inventory of the seized contraband was duly certified by the Magistrate, it is apparent that the said seized contraband and the samples drawn therefrom would not be a valid piece of primary evidence in the trial. Once there is no primary evidence available, the trial as a whole stands vitiated.

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113. In view of proposition of law laid down by the Hon'ble Apex Court in the aforesaid judgments, it is clear that if samples of the seized contraband are not drawn in the presence of the Magistrate and the inventory of the seized contraband is not duly certified by the Magistrate as required under Section 52A (2) of the NDPS Act, the whole trial against the accused stands vitiated.

114. In the instant case, it has come on record from the testimonies of recovery witnesses that PW3 SI Vinod Kumar, the 1st IO after seizure of contraband, drew samples on the spot. He after seizure of the contraband did not send it to the officer as required under Section 53 of the Act nor inventory of the seized contraband was prepared by the Officer as mentioned in sub section (1) of Section 52A nor the samples were drawn in the presence of the Magistrate nor the samples so drawn at the spot have been certified by the Magistrate to be correct. It is, thus, evident that the IO did not follow the procedure as laid down under Section 52A(2) of the NDPS Act while drawing the samples and there is violation of said mandatory provision. Hence, the accused is liable to be acquitted on this ground alone as has been done by the Hon'ble Apex Court in the judgments cited supra.

115. Accordingly, the accused is acquitted of the offence punishable under Section 21 (b) of the NDPS Act. Bail SC No. 398/2017 Page 63 of 64 State vs. Haripal Judgment dt.16.02.2024 bonds furnished by him under Section 439 Cr.P.C. stands cancelled and his surety is discharged. The bail bonds furnished by him under Section 437A Cr.P.C in the sum of Rs.25,000/ are accepted, which shall remain in force for a period of six months.

116. File be consigned to Record Room after necessary compliance. Digitally signed BALWANT by BALWANT RAI BANSAL RAI Date:

BANSAL 2024.02.20 Announced in the open Court 16:41:01 +0530 on 16th February, 2024 (Balwant Rai Bansal) Special Judge (NDPS Act), Shahdara Karkardooma Courts, Delhi SC No. 398/2017 Page 64 of 64 State vs. Haripal Judgment dt.16.02.2024

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Delhi District Court

State vs Haripal on 16 February, 2024