Delhi District Court
State vs Javed Ahmed on 18 September, 2024
IN THE COURT OF SPECIAL JUDGE (NDPS),
SHAHDARA, KARKARDOOMA COURTS, DELHI
STATE VS. JAVED AHMED
Session Case No. : 1068/2016
CNR No. : DLSH01-007253-2016
FIR No. : 150/2016
U/s : 21 of the NDPS Act, 1985
PS : Crime Branch - North East Delhi
In the matter of :-
State
Versus
Javed Ahmed
S/o Sh. Ahmed Nabi,
R/o Village & Post Meerganj, PS Meerganj,
District Bareily, Uttar Pradesh
.......... Accused
Date of institution : 27.10.2016
Date when judgment reserved : 12.09.2024
Date of Judgment : 18.09.2024
JUDGMENT:-
1. This is a case in which accused Javed Ahmed 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 SC No. 1068/2016 Page 1 of 50 State vs. Javed Ahmed Judgment dt.18.09.2024 i.e. 200 grams 'heroin'' without any permit or licence/authority in contravention of provisions of the NDPS Act.
2. The case of the prosecution as borne out from the charge-sheet is as under: -
2.1. On 29.08.2016, a secret informer came at the Office of Narcotic Cell, Crime Branch, Delhi at about 4.00 pm and informed SI Rajni Kant that one Javed who is resident of Meerganj, Bareily, UP and supplies 'heroin'' in Delhi after procuring it from Bareily would come near Service Road towards Ghazipur, opposite Anand Vihar Railway Station between 5.30 pm to 6.00 pm to supply a big consignment of 'heroin' to someone and if raided, both the supplier and receiver could be apprehended.
2.2. SI Rajni Kant produced the secret informer before Inspector Vijender Singh at about 4.15 pm who after satisfying himself with the information shared the information with ACP Sanjeev Tyagi telephonically who directed to conduct the raid immediately.
2.3. SI Rajni Kant lodged the secret information in daily diary vide DD no. 22 at 4.30 pm and produced it along with its copy before Inspector Vijender Singh for compliance of Section 42 of the NDPS Act.
2.4. Pursuant to directions of Inspector Vijender Singh, SI Rajni Kant constituted a raiding party comprising himself, Ct. Shani and HC Vikas Kumar and he took IO kit, field testing kit & electronic weighing machine and, SC No. 1068/2016 Page 2 of 50 State vs. Javed Ahmed Judgment dt.18.09.2024 thereafter, the raiding party along with the secret informer left the Narcotic Office for the spot at around 4.45 pm in a private car i.e. Blue Wagon R belonging to SI Rajni Kant bearing registration No. DL-8CP-3419 vide DD No. 23.
2.5. The raiding party reached at the spot i.e. service road, opposite Anand Vihar Railway Station at around 5.30 pm and on the way, some passersby were asked to join the investigation but none agreed. SI Rajni parked the private vehicle by the side of the service road where the flyover ends and briefed the raiding party at about 5.40 pm and took position.
2.6. At around 5.50 pm, one person was seen coming from the side of Anand Vihar footover bridge who was identified by the secret informer from a distance of about 25 meter as Javed Ahmed and, thereafter, the secret informer left the spot. The said person while walking came on service road, opposite Anand Vihar Railway Station and after waiting there for someone for about 10 minutes, when he started going back towards footover bridge, he was apprehended by the raiding team.
2.7. On interrogation, the name of the said person revealed as Javed Ahmed, son of Ahmed Nabi (accused herein). SI Rajni Kant introduced himself and the other raiding party members to the accused and apprised him about the secret information and asked him for his search as there was possibility of recovery of 'heroin'' from his possession.SC No. 1068/2016 Page 3 of 50
State vs. Javed Ahmed Judgment dt.18.09.2024 2.8. SI Rajni Kant also apprised the accused about his legal rights to be searched in presence of nearest Gazetted Officer or Magistrate and also offered him to take search of the raiding party and of their private vehicle before his search and and in this regard notice under Section 50 of the NDPS Act was also served upon the accused contents of which were explained to the accused, but the accused refused to avail his said legal rights and denial/refusal of the accused was written by SI Rajni Kant on the carbon copy of the notice as the accused was illiterate and only knew to make his signature.
2.9. SI Rajni Kant conducted cursory search of the accused during which one transparent polythene containing some brownish substance was recovered from the right pocket of the jeans of the accused. On testing on the field testing kit, the substance was found to be 'heroin'' and on weighing on electronic weighing machine, its weight was found to be 200 grams along with polythene.
2.10. Out of the recovered contraband, SI Rajni Kant drew two samples of 5-5 grams each and prepared pullandas of it and also of remaining contraband along with the polythene and then he sealed all the three pullandas with his seal '5A PSNB DELHI' . He also filled up the FSL form at the spot and affixed same seal impression on the same and then all the sealed pullandas along with FSL form were taken into police possession and the seal after use was handed over to HC Vikas.
2.11. Thereafter, SI Rajni Kant prepared a tehrir and SC No. 1068/2016 Page 4 of 50 State vs. Javed Ahmed Judgment dt.18.09.2024 handed over the same to Ct. Shani along with all the sealed samples, FSL Form and carbon copy of seizure memo with a direction to hand over the tehrir to the Duty Officer for registration of case and other articles to the SHO for compliance under Section 55 of the NDPS Act.
2.12. Ct. Shani reached at the police station and handed over the tehrir to the Duty Officer and the other articles to the SHO Inspector Sunil Kumar who got deposited the sealed case property and other articles in the malkhana through MHC(M) HC Jag Narain.
2.13. After registration of FIR, further investigation was marked to SI Sanjay Neolia who reached at the spot where SI Rajni Kant handed over him relevant documents and custody of the accused. SI Sanjay Neolia prepared site plan at the instance of SI Rajni Kant, arrested the accused after interrogation, conducted personal search of the accused and recorded his disclosure statement.
2.14. SI Sanjay Neolia after completing the proceedings at the spot reached at Narcotic Cell, Darya Ganj along with the accused and the other police staff where accused was produced before Inspector Vijender Singh who after interrogation found the arrest of the accused justified.
Thereafter, SI Sanjay Neolia got deposited the personal search articles of the accused in the malkhana.
2.15. During further investigation, SI Sanjay Neolia tried to trace out source of contraband as disclosed by the accused, namely, Salman but he could not be traced out.
SC No. 1068/2016 Page 5 of 50State vs. Javed Ahmed Judgment dt.18.09.2024 He also prepared report u/s 57 of the NDPS Act, got deposited the exhibit at FSL Rohini, recorded statement of witnesses, obtained FSL result and after completion of investigation prepared the charge-sheet against the accused and filed it before the Court along with the FSL result.
3. After compliance of Section 207 Cr.P.C., charge under Section 21 of the NDPS Act was framed against the accused on 13.01.2017 to which he pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution has examined 12 witnesses. Brief outline of the testimonies of the prosecution witnesses is discussed as under:-
5. PW-1 is ASI Dinesh Kumar, who was posted as Reader to Sh. Sanjeev Kumar Tyagi, the then ACP, Narcotics during the relevant time. He has produced on record the report u/s 42 NDPS Act vide DD No. 22 dated 29.08.2016 and two other reports under Section 57 of the NDPS Act dated 30.08.2016 received at ACP Office as Ex. PW1/A, PW1/C & Ex.PW1/E as well as copies of entries made by him to the said effect in the daily diary register as Ex.PW1/B, Ex.PW1/D & Ex. PW1/F respectively.
6. PW-2 is Sh. M.L. Meena, Senior Scientific Officer (Chemistry), FSL, Rohini, Delhi who was marked the sealed cloth parcel received at FSL, Rohini, Delhi on 31.08.2016 for chemical examination. He chemically SC No. 1068/2016 Page 6 of 50 State vs. Javed Ahmed Judgment dt.18.09.2024 examined the exhibit 'A' and prepared his detailed report which is Ex.PW2/A. As per FSL report prepared by him, Ex. A was found to contain 'Diacetylmorphine' (52.5%), '6-Monacetylmorphine', Acetylcodeine', & 'Acetaminophen'.
7. PW-3 is ASI Mahesh Chand who had issued officials seals '5A PSNB DELHI', '5B PSNB DELHI' & '5C PS NB DELHI' to SI Rajni Kant on 20.06.2013 and made entry to the said effect at serial no. 19 in the register maintained at Narcotics Cell, copy of which is Ex. PW3/B. On 29.12.2016, the aforesaid three seals were returned by SI Rajni kant who put his signature at point C of the entry. On 29.08.2016, at 4.35 pm, this witness had also issued electronic weighing machine to SI Rajni Kant and he made entry to the said effect at Serial No. 50 in the register, copy of which is Ex.PW3/A. On 30.08.2016, at 8.00 am, the said electronic weighing machine was deposited back by SI Rajni Kant who put his signature at point C of the entry.
8. PW-4 is ASI Jag Narain, the then MHC(M) at PS Crime Branch who was handed over three sealed pullandas Mark A, B and C along with FSL form and carbon copy of seizure memo by Inspector Sunil Kumar, the then SHO, PS Crime Branch on 29.08.2016, which he deposited in the malkhana vide entry no. 2569 in register no. 19, copy of which is Ex.PW4/A. On 30.08.2016, he also deposited personal search articles of the accused handed over to him by SI Sanjay Neolia and made entry in SC No. 1068/2016 Page 7 of 50 State vs. Javed Ahmed Judgment dt.18.09.2024 this regard in register no. 19 at Serial No. 2571, copy of which is Ex.PW4/B. On 31.08.2016, on the directions of the SHO, this witness handed over one sealed pullanda Mark A along with FSL form to Ct. Bijender to deposit the same at FSL Rohni vide RC No. 319/21/16, copy of which is Ex.PW4/C. He also received the acknowledgment of case acceptance issued by FSL Rohini which was handed over to him by Ct. Bijender after depositing the pullanda at FSL, Rohini, copy of which is Ex.PW4/D. He also received FSL result in sealed envelope on 18.10.2016 which he handed over to the IO.
9. PW-5 is ACP Sanjeev Tyagi, the then ACP, Narcotics, Crime Branch who was informed by Inspector Vijender telephonically about the secret information on 29.08.2016. On the said date, a report under Section 42 NDPS Act i.e. DD No. 22 dated 29.08.2016 was produced before him by his Reader/ASI Dinesh which he signed after going through its contents. He also seen and signed two reports u/s 57 NDPS Act, both dated 29.08.2016 Ex.PW1/C and Ex.PW1/E produced before him on 30.08.2016.
10. PW-6 is HC Bijender, who on the instructions of the IO, collected one sealed pullanda Mark A sealed with the seals of '5A PS NB DELHI' and 'SK' along with other relevant documents from the malkhana on 31.08.2016 and deposited the same at FSL, Rohini vide road certificate no.319/21. He after depositing the exhibit at FSL Rohini handed over the FSL acknowledgment along with copy of SC No. 1068/2016 Page 8 of 50 State vs. Javed Ahmed Judgment dt.18.09.2024 RC to the MHC(M).
11. PW-7 Inspector Sanjay Neolia is the 2nd Investigating Officer (IO) of the case who carried out the investigation in the present case after registration of FIR. He after receiving rukka and copy of FIR from Ct. Shani on 30.08.2016 departed from Narcotics Office at 1.45 am for the spot vide departure entry no. 2, copy of which is Ex.PW7/A. He reached at the spot where SI Rajni Kant handed over documents of the case and the custody of accused Javed Ahmed to him. He prepared site plan Ex.PW8/F at the instance of SI Rajni Kant, interrogated the accused, recorded his disclosure statement Ex.PW8/1, personally searched the accused vide memo Ex.PW8/G during which original notice under Section 50 of the NDPS Act and Rs. 450/- in cash were recovered. He arrested the accused vide arrest memo Ex.PW8/H and thereafter he took the accused to Narcotic Cell, Darya Ganj, Delhi where he produced the accused before Inspector Vijender Singh. He after leaving the accused under the custody of HC Vikas departed for PS Crime Branch where he handed over the personal search articles to the MHC(M). On the same day, he prepared report under Section 57 NDPS Act regarding arrest of the accused Ex.PW1/E and produced the same before Inspector Vijender. He also conducted raid at Meerganj, Bareily in search of the source but he could not be traced out. He also sent the exhibit to FSL Rohini for chemical examination through Ct. Bijender and after obtaining FSL SC No. 1068/2016 Page 9 of 50 State vs. Javed Ahmed Judgment dt.18.09.2024 result, he prepared the charge sheet and filed in the concerned Court.
12. PW-8 Inspector Rajni Kant (the then Sub Inspector) is 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 charge-sheet. Thus, the detailed account of his testimony is not being repeated here for the sake of brevity and shall be discussed at the later and appropriate stage of the judgment.
13. During evidence of this witness (PW-8), 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 witness has identified the same as part of the contraband recovered from the possession of the accused. The documents as well as case property which were brought on record by this witness are mentioned as under along with their identification marks:-
i. Carbon copy of DD No. 22 dated 29.08.2018 as Ex. PW8/A;
ii. True copy of DD No. 23 dated 29.08.2018 as Ex.PW8/B; iii. Carbon copy of notice under Section 50 of the NDPS Act as Ex.PW8/C;
iv. Seizure memo of the case property as Ex. PW8/D;
v. Tehrir prepared by him as Ex. PW8/E; vi. Site plan prepared by SI Sanjay Neolia at his instance as Ex. PW8/F;SC No. 1068/2016 Page 10 of 50
State vs. Javed Ahmed Judgment dt.18.09.2024 vii. Arrest memo of the accused as Ex. PW8/G; viii. Personal search memo of the accused as Ex.PW8/H; ix. Disclosure statement of the accused as Ex.PW8/I ; x. Original notice under Section 50 of the NDPS Act served upon the accused and later on recovered from the personal search of the accused which was produced by MHC(M) as Ex.PW8/J;
xi. Sample pullanda Mark A along with polythene which was sent to FSL and produced by MHC(M) in a sealed envelope sealed with the seal of FSL as Ex.PW8/Article 1 (colly);
xii.Another sample pullanda Mark B along with polythene which was sent to FSL and produced by MHC(M) in a sealed envelope sealed with the seals of 'SK' & '5A PS NB DELHI' as Ex.PW8/Article 2 (colly);
xiii. Cloth pullanda Mark C containing remaining contraband in transparent polythene produced by MHC(M) with the seals of 'SK' & '5A PS NB DELHI' as Ex. PW-8/Article-3 (Colly).
14. PW-9 Retd. ASI Jai Pal Singh, the then Head Constable, was posted as Duty Officer at PS Crime Branch on 29/30.08.2016 and his duty hours were from 8.00 pm to 8.00 am. He registered the present case FIR through computer operator on the basis of rukka handed over to him by Ct. Shani, computerized copy of which is Ex.PW9/A and made endorsement to this effect on the rukka which is Ex.PW9/B. He also issued certificate under Section 65 B of the Indian Evidence Act which is Ex. PW9/C. He has also produced on record copies of DD Nos. 23A and 25A regarding registration of FIR and its completion as Ex. PW9/D & Ex. PW9/E respectively.
SC No. 1068/2016 Page 11 of 50State vs. Javed Ahmed Judgment dt.18.09.2024
15. PW-9 HC Shani, the then Constable (though PW-9 is Retd. ASI Jai Pal Singh and this witness should have been PW-10 and wrongly given no. PW-9) was one of the members of the raiding party which apprehended the accused along with contraband. He has deposed more or less on the similar lines as deposed by PW-8 SI Rajni Kant, the 1st IO whose testimony shall be discussed at the later stage of the judgment.
16. PW-10 is Inspector Sunil Kumar, the then SHO, PS Crime Branch. He was handed over three sealed pullandas sealed with the seal of '5A PS NB, DELHI' marked as A, B and C along with FSL form and carbon copy of seizure memo by Ct. Shani on 29.08.2016. He after putting his counter seal 'SK' on the three pullandas and the FSL form and details of FIR on the three pullands and carbon copy of seizure memo got deposited the same in the malkhana through MHC(M) HC Jag Narain and lodged DD no. 24 in this regard at about 11.30 pm, attested copy of which is Mark S.
17. PW-11 is Inspector Vijender Singh before whom the secret informer was produced by the 1 st IO SI Rajni Kant on 29.08.2016 and who onward transmitted the information to the ACP concerned. He also forwarded DD No. 22 dated 29.08.2016 lodged by SI Rajni Kant regarding secret information, copy of which is Ex.PW1/A to the ACP. On 30.08.2016, he also forwarded two reports prepared under Section 57 of the NDPS Act regarding seizure of contraband Ex.PW1/C and regarding arrest of SC No. 1068/2016 Page 12 of 50 State vs. Javed Ahmed Judgment dt.18.09.2024 the accused Ex.PW1/E produced before him to the concerned ACP.
18. PW-12 ASI Vikas Kumar (the then Head Constable) was the member of the raiding team which apprehended the accused with contraband. He was also part of the investigation carried out by 2nd IO SI Sanjay Neolia. He deposed more or less on the similar lines as deposed by SI Rajni Kant, the 1st IO and SI Sanjay Neolia, the 2nd IO.
19. After completion of prosecution evidence, statement of the accused under Section 313 Cr.P.C. was recorded wherein he pleaded his innocence and claimed false implication in the present case. He chose not to lead evidence in his defence.
20. I have heard the Ld. Additional Public Prosecutor and the Ld. Counsel for the accused and perused the record.
21. During course of the arguments, Ld. Addl. Public Prosecutor submitted that the raiding team members i.e. PW-8 Inspector Rajni Kant (the then SI), the 1st IO, PW-9 HC Shani (the then Constable) and PW-12 ASI Vikas Kumar (the then Head Constable) as well as the 2nd IO i.e. PW-7 SI Sanjay Neolia have fully supported the prosecution case regarding recovery of contraband from the possession of the accused at the spot and his arrest in the present case. He further submitted that compliance of mandatory provisions under the NDPS Act has been properly made in the present case which is duly proved SC No. 1068/2016 Page 13 of 50 State vs. Javed Ahmed Judgment dt.18.09.2024 through the testimonies of prosecution witnesses. He further submitted that the prosecution has been able to prove its case against the accused beyond reasonable doubt. Thus, he 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 accused is innocent and he has been falsely implicated in the present case. He contended that the accused was lifted by the police on the pretext of some enquiry and later on contraband had been planted upon him. He further submitted that no notice under Section 50 of the NDPS Act was served upon the accused at the spot and the signatures of the accused were obtained on some blank papers at the police station which later on were converted into various incriminating documents against the accused including notice under Section 50 NDPS Act. He further submitted that no public witness has been joined during the entire investigation and the entire case rests solely on the testimony of police officials which makes the story of the prosecution doubtful. Ld. Defence Counsel further submitted that samples in the present case were not drawn by the IO in the presence of Magistrate and hence there is violation of mandatory provisions of Section 52A of the NDPS Act on the part of the prosecution. He contended that the prosecution has failed to prove its case against the accused beyond reasonable doubt and hence the accused is liable to be acquitted.
23. In view of the rival submissions made by the Ld. SC No. 1068/2016 Page 14 of 50 State vs. Javed Ahmed Judgment dt.18.09.2024 Counsel for the parties, let us examine as to whether mandatory provisions of the NDPS Act have been complied with or not in the present case.
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, who has received the secret information, is required to inform his immediate senior officer about the secret information within 72 hours of its receipt.
25. In this regard, PW-8 Inspector Rajni Kant, who was the 1st IO of the case and had received the secret information, deposed that on 29.08.2016, he was posted as Sub Inspector at Narcotic Cell, Crime Branch and on that day, at about 4.00 pm, a secret informer came to his office and informed him that One Javed, resident of Bareily who is in drug trafficking and supplies heroin in Delhi after procuring it from Barely would come near Service Road, opposite Anand Vihar Railway Station between 5.30 pm to 6.00 pm on that day to supply heroin to someone. He further deposed that he produced the informer before Inspector Vijender in Narcotic Cell who after verifying the said information passed on it to ACP Sh. Sanjeev Tyagi telephonically who directed for appropriate action. He further deposed that Inspector Vijender directed him to conduct raid immediately. He also lodged the secret information in daily diary vide DD No. 22 dated SC No. 1068/2016 Page 15 of 50 State vs. Javed Ahmed Judgment dt.18.09.2024 29.08.2018, true copy of which is Ex.PW1/A and carbon copy is Ex.PW8/A and produced the same before Inspector Vijender.
26. In his cross-examination, this witness stated that the distance between his office and office of Inspector Vijender and ACP was about 25-30 paces. He further stated that Inspector Vijender was not a gazetted officer and he had authorized him to conduct the raid on the direction of ACP. He further stated that he had written the information u/s 42 NDPS before calling Ct. Shani and HC Vikas. He further stated that duplicate copy of the said information was made which was sent to Inspector Vijender.
27. The aforesaid cross-examination of the witness indicates that the the Ld. Defence Counsel could not extract anything material to assail his version about receipt of the secret information and passing on the information to his immediate senior officers within prescribed time.
28. The aforesaid testimony of PW-8 Inspector Rajni Kant has been duly supported by PW-11 Inspector Vijender Singh who deposed that on 29.08.2016, he was posted as Inspector, Anti Narcotic Cell, Crime Branch and on that day, at about 4.15 pm, SI Rajni Kant produced one secret informer before him who gave secret information about supply of 'heroin'' by one person, namely, Javed Ahmed on service road opposite Anand Vihar Railway SC No. 1068/2016 Page 16 of 50 State vs. Javed Ahmed Judgment dt.18.09.2024 Station heading towards Gazipur to someone in between 5.30 pm to 6.00 pm. He further deposed that he made enquiries from the secret informer and after satisfying himself with the information, he shared the same with ACP Sh. Sanjeev Tyagi telephonically who directed him to conduct immediate raid. He further deposed that SI Rajni Kant lodged DD no. 22 Ex.PW1/A regarding the secret information at about 4.30 pm and placed it before him and he forwarded it to ACP.
29. The Ld. Defence Counsel could not impeach the aforesaid deposition of PW-11 Inspector Vijender Singh during his cross-examination. The witness categorically stated that SI Rajni Kant personally brought DD No. 22 to him and he came alone. He stated that he had not written anywhere that he informed ACP Anti Narcotic Cell regarding secret information nor he had noted down enquiries made by him from secret informer. However, if the witness did not write down the factum of sharing of information to the ACP, it does not make any difference as he had forwarded the written secret information lodged vide DD No. 22 dated 29.08.2016 Ex. PW1/A to the ACP. Similarly, the witness was not required to note down the enquiries made by him from the secret information.
30. In order to prove that the secret information was passed onto the ACP concerned in writing within 72 hours of its receipt, the prosecution has also examined PW-1 ASI Dinesh Kumar, the then Reader posted at ACP Office, Narcotics, Delhi. He deposed that on 29.08.2016, he SC No. 1068/2016 Page 17 of 50 State vs. Javed Ahmed Judgment dt.18.09.2024 received DD no. 22 dated 29.08.2016 through dak regarding report under Section 42 NDPS Act which was sent by SI Rajni Kant and forwarded by Inspector Narcotics Cell. He further deposed that he made entry in this regard in diary register at Serial No. 2098 dated 29.08.2016 and produced the same before ACP on the same day who after going through the same made his signatures at point A. This witness has produced on record the copy of DD no. 22 dated 29.08.2016 duly signed by ACP Sh. Sanjeev Kumar Tyagi at point A as Ex. PW1/A and copy of diary register showing entry no. 2098 regarding receipt of DD no. 22 in the Office of ACP, Narcotics as Ex.PW1/B.
31. In his cross-examination, this witness (PW-1) could not tell the time when he had received report u/s 42 NDPS Act. He voluntarily stated that there is no column of time in daily register. He stated that the report was not with covering letter. He further stated that he had read over the report before producing before ACP. He denied the suggestion that all the entries were anti time. However, if the witness could not remember the time when he received the report u/s 42 NDPS Act, it does not make any difference as his testimony that the report regarding report u/s 42 NDPS Act vide DD no. 22 dated 29.08.2016 was seen and signed by the then ACP Sh. Sanjeev Kumar Tyagi on the same day of its receipt could not be impeached by the Ld. Defence Counsel.
32. The aforesaid testimony of above witnesses has SC No. 1068/2016 Page 18 of 50 State vs. Javed Ahmed Judgment dt.18.09.2024 been further corroborated by PW-5 ACP Sanjeev Tyagi who deposed that on 29.08.2016, he was posted as ACP, Narcotics, Crime Branch and on that day, at about 4.20 pm, Inspector Vijender telephonically informed him regarding secret information about supply of 'heroin'' by the one person, namely Javed Ahmed. He further deposed that on this information, he directed to conduct raid immediately and after that he reached his office where a report under Section 42 NDPS Act i.e. DD No. 22 dated 29.08.2016 written by SI Rajni Kant and forwarded by Inspector Vijender was produced before him by Reader ASI Dinesh. He went through its contents and after satisfying himself signed the same at point A.
33. In his cross-examination, this witness stated that his office was situated in the Old Kotwali Building, Darya Ganj at that time. He further stated that office of SI Rajni Kant is also situated in the same building. He could not remember where he was present at that time when he received the information from Inspector Vijender Kumar. He did not reduce into writing the information which he received from Inspector Vijender Kumar. He did not give directions to Inspector Vijender Kumar in writing. He voluntarily stated that he gave him oral directions. He further categorically stated that the daily diary is registered in their office. He denied the suggestions that he neither received any phone call from Inspector Vijender Kumar nor he gave any direction to Inspector Vijender Kumar for taking legal appropriate action.
SC No. 1068/2016 Page 19 of 50State vs. Javed Ahmed Judgment dt.18.09.2024
34. The aforesaid cross-examination of the witness makes it clear that his testimony regarding receipt of secret information, orally as well as in writing, could not be assailed by the Ld. Defence Counsel. Though the witness could not remember the place where he was present at the time of receiving the secret information from Inspector Vijender Kumar, however on this count his deposition regarding receipt of secret information cannot be doubted. Similarly, if he did not reduce the information in writing or did not give directions to Inspector Vijender Kumar to conduct raid in writing, it does not make any dent to the case of the prosecution. 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. 22 Ex.PW1/A is on record wherein the factum of directions of the ACP to conduct raid immediately was also mentioned, which was duly signed by the ACP.
35. From the testimonies of aforesaid witnesses, it is established on record that a secret information about supply of 'heroin'' by the accused was received by PW-8 SI Rajni Kant at Office of Narcotics Cell, Crime Branch, Kotwali, Delhi on 29.08.2016, at about 4.00 pm and he SC No. 1068/2016 Page 20 of 50 State vs. Javed Ahmed Judgment dt.18.09.2024 shared the secret information with his immediate senior officer i.e. PW-11 Inspector Vijender Singh at about 4.15 pm who shared the information with ACP Sh. Sanjeev Kumar Tyagi telephonically. It is further established on record that the secret information was reduced into writing by PW-8 Inspector Rajni Kant vide DD no. 22, true copy of which is Ex.PW1/A and he handed over this DD to PW-11 Inspector Vijender Singh who after putting his endorsement forwarded the same to ACP Sh. Sanjeev Kumar Tyagi in compliance of Section 42 NDPS Act. It is further established on record that DD No.22 Ex.PW1/A regarding the secret information was received at the ACP Office on the same day i.e. 29.08.2016 by PW-1 ASI Dinesh Kumar, the Reader who produced it before ACP Sh. Ranbir Singh on the same day who also signed it after going through its contents on the same day i.e. 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
36. As per prosecution case, on 29.08.2016, a secret information was received by SI Rajni Kant regarding supply of 'heroin' by the accused whereupon he with permission of his superiors constituted a raiding team comprising of himself, HC Vikas and Ct. Shani. The raid was conducted at the place of information and the accused was apprehended from whom 200 grams of 'heroin' was SC No. 1068/2016 Page 21 of 50 State vs. Javed Ahmed Judgment dt.18.09.2024 effected.
37. In order to prove its case, the prosecution has examined recovery witnesses, namely, PW-8 Inspector Rajni Kant (the then SI), the 1st IO, PW-9 HC Shani (the then Constable) and PW-12 ASI Vikas Kumar (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.
38. PW-8 Inspector Rajni Kant, who is the first IO and In-charge of the raiding team, deposed that pursuant to directions of Inspector Vijender Singh, he constituted raiding party including himself, HC Vikas and Ct. Shani and took IO kit, field testing kit and electronic weighing machine with him and they along with the secret informer departed for the spot in private car No. DL-8CP-3419 vide DD No. 23, copy of which is Ex. PW8/B. He further deposed that they took route via Nishad Raj road, Shantivan red light, Geeta Colony Flyover, DCP East Office, Karkari Mod, Hassanpur bus depot, Patpargnj depot and took left turn from Telco T-point and reached at Anand Vihar Flyover and from beneath the flyover they took U-turn and after covering some distance they reached on service road opposite Anand Vihar Railway Station at about 5.30 pm. He parked the private vehicle by the side of the service road where the flyover ends and briefed the raiding party and then staff members took position along with secret informer 30 meters ahead of the vehicle on the SC No. 1068/2016 Page 22 of 50 State vs. Javed Ahmed Judgment dt.18.09.2024 road leading towards Gazipur in scattered manner. He further deposed that at about 5.50 pm, they noticed one person coming from the side of footover bridge towards them who was identified by the secret informer as Javed and, thereafter, the secret informer left the spot. Accused Javed came near them i.e. on service road opposite Anand Vihar Railway Station and stood there and was waiting for someone. After about 5-10 minutes, the accused turned back and started going towards footover bridge, he along with raiding team apprehended him who on interrogation revealed his name as Javed Ahmed.
39. This witness (PW-8) further deposed that he introduced himself and the raiding team to the accused and served a notice under Section 50 of the NDPS Act after apprising the accused about his legal rights to be searched in the presence of a Gazetted officer or Magistrate but the accused refused for the same. He, thereafter, searched the accused and one transparent polythene tied with the rubber band containing some matmella colour powder was recovered from the right pocket of wearing jeans of the accused which on testing on the IO kit was found to be ''heroin''' and on weighing the quantity was found 200 grams.
40. The aforesaid testimony of PW-8 SI Rajni Kant, the 1st IO has been duly corroborated by other two recovery witnesses, namely, PW-9 HC Shani and PW-12 ASI Vikas Kumar. They have deposed on the similar lines as deposed by PW-8 SI Rajni Kant in his chief examination SC No. 1068/2016 Page 23 of 50 State vs. Javed Ahmed Judgment dt.18.09.2024 and very well supported his version regarding apprehension of the accused from the spot and recovery of the contraband i.e. 200 grams 'heroin'' from the possession of the accused.
41. In the cross-examination of above recovery witnesses, nothing material could be brought on record by the Ld. Defence Counsel to disbelieve their aforesaid deposition.
42. PW-8 SI Rajni Kant, the 1st IO stated in his cross-
examination that he had called duty officer to call Ct. Shani and HC Vikas. He further stated that he had written the information u/s 42 NDPS before calling Ct. Shani and HC Vikas and he did not show them the written information.
43. PW-9 HC Shani stated in his cross-examination that SI Rajni Kant had called him and HC Vikas on 29.08.2016 by calling their names and they were at a distance of 8-10 paces from the office of SI Rajni Kant. He further stated that SI Rajni Kant had orally informed them about the secret information.
44. Similar statements have been made by PW-12 ASI Vikas Kumar in his cross-examination that he and Ct. Shani were called by SI Rajni Kant by calling their names; that they were at a distance of 8-10 paces from the office of SI Rajni Kant and that they were orally informed about the secret information by SI Rajni Kant.
SC No. 1068/2016 Page 24 of 50State vs. Javed Ahmed Judgment dt.18.09.2024
45. The above cross-examination of the recovery witnesses makes it clear that not a single contradiction has surfaced in their cross examination to doubt their version regarding the recovery proceedings. Rather they have corroborated each other's statement in their cross- examination and very well withstood the test of cross examination. Further, their cross-examination was limited on the aspect of formation of raiding party which could not be impeached by the Ld. Defence Counsel and they were not cross-examined at all on the material aspects regarding the recovery proceedings.
46. PW-11 Inspector Vijender Singh before whom the secret informer was produced by 1st IO SI Rajni Kant and who ordered first IO to conduct raid has also corroborated the testimonies of above recovery witnesses in his chief examination regarding constitution of raiding team by SI Rajni Kant and departure of the raiding team from the Office for the spot in private car at about 4.45 pm.
47. There is nothing material in the cross-examination of this witness as well to impeach his aforesaid testimony.
48. Although the accused in his statement recorded under Section 313 Cr.P.C. has claimed his innocence and took a defence that he was told by the police that some enquiry is to be conducted regarding certain persons from Meerganj and took him to the police station at Darya Ganj where he was made to sign certain blank papers which SC No. 1068/2016 Page 25 of 50 State vs. Javed Ahmed Judgment dt.18.09.2024 could be utilized for the purpose of evidence and, thereafter, he has been falsely implicated in the present case. However, the accused has not disclosed any reason of his false implication by the police officials. He simply claimed false implication and foisting of contraband upon him by the police officials but he has neither claimed any animosity nor acquaintance with the police officials. Hence, in the absence of any reasonable ground for his false implication in the present case, this claim of the accused is not acceptable.
49. On the other hand, the testimonies of all the raiding team members as narrated above clearly show that they have disclosed all the material facts like how they departed from their Office for the place of information, the route taken by them to reach the spot, the time when the accused arrived there, the manner in which they apprehended the accused, from which pocket of the jeans of the accused, the contraband was recovered etc. They have deposed on the similar lines and very well supported the version of each other and their testimonies could not be shaken by the Ld. Defence Counsel during their cross- examination as noted herein above.
50. In view of the above discussions, it is held that prosecution has successfully proved that the accused was apprehended from the spot i.e. service road towards Ghazipur, opposite Anand Vihar Railway Station, Delhi and that 200 grams 'heroin'' was recovered from his possession.
SC No. 1068/2016 Page 26 of 50State vs. Javed Ahmed Judgment dt.18.09.2024 DISCUSSION ON THE POINT OF COMPLIANCE OF SECTION 50 OF NDPS ACT
51. Section 50 of the NDPS provides the conditions under which search of persons shall be conducted. 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.
52. 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:-
26. The questions considered above arise frequently before the trial courts. Therefore, SC No. 1068/2016 Page 27 of 50 State vs. Javed Ahmed Judgment dt.18.09.2024 we find it 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.
2 (A) -----------
2 (B) -----------
2 (C) ------------
(3) ------------
(4) -------------
(5) On prior information, the empowered officer or authorized officer while acting under Section 41(2) or 42 should comply with the provisions of Section 50 before the search of the person is made and such person should be informed that if he so requires, he shall be produced before a gazetted officer or a magistrate as provided thereunder. It is obligatory on the part of such officer to inform the person to be searched. Failure to inform the person to be searched and if such person so requires, failure to take him to the gazetted officer or the magistrate, would amount to non-compliance of Section 50 which is SC No. 1068/2016 Page 28 of 50 State vs. Javed Ahmed Judgment dt.18.09.2024 mandatory and thus it would affect the prosecution case and vitiate the trial. After being so informed whether such person opted for such a course or not would be question of fact.
53. In the instant case, there was prior intimation with the police regarding illegal possession of contraband by the accused. Therefore, provisions under Section 50 of the NDPS Act were mandatorily required to be complied with in the present case.
54. As per deposition of PW-8 Inspector Rajni Kant, the 1st IO and the In-charge of the raiding team after apprehension of the accused, he introduced himself and the raiding team to the accused and told the accused about the secret information received by him and hence his search was required to be conducted. He also apprised the accused about his legal rights to get himself searched and to take search of the raiding party and of their vehicle before his search in presence of a Gazetted Officer or Magistrate and the accused was also explained the meaning of Gazetted Officer and Magistrate, but the accused refused to avail the said legal rights. SI Rajni Kant also prepared notice under Section 50 of the NDPS Act in duplicate in this regard and served original notice Ex. PW8/J upon the accused after explaining its contents to the accused and since the accused denied to exercise his legal rights and was illiterate and only could write his name, his refusal was written by SI Rajni Kant on the carbon copy of the notice Ex.PW8/C at point X to X1. After writing the refusal, SI Rajni Kant read over the SC No. 1068/2016 Page 29 of 50 State vs. Javed Ahmed Judgment dt.18.09.2024 refusal written by him to the accused and after that the accused signed on the refusal in Hindi at point C and also signed on the notice at point B after the notice was served upon him. PW-8 Inspector Rajni Kant has also deposed that during personal search of the accused carried out by SI Sanjay Neolia, original notice Ex.PW8/J and Rs. 450/- in cash were recovered.
55. PW-9 HC Shani and PW-12 ASI Vikas Kumar who were the other members of the raiding party in their respective chief examination have deposed on the similar lines that IO/SI Rajni Kant apprised the accused about his legal rights by saying that he can get himself searched in the presence of any Gazetted Officer or the Magistrate, but the accused refused for the same and also refused to take search of the raiding team and their vehicle in the presence of any Gazetted Officer or the Magistrate and, thereafter, the accused was served with the notice under Section 50 of the NDPS Act and the denial of the accused was written by SI Rajni Kant on the carbon copy of the notice Ex.PW8/C as the accused stated that he was less educated and only could write his name in Hindi.
56. It is interesting to note that all the recovery witnesses were not put a single question by the Ld. Defence Counsel with regard to service of notice under Section 50 of the NDPS Act by 1 st IO/SI Rajni Kant upon the accused and only a suggestion was given to them that all the paper work was done while sitting in the police station which was denied by them. Except this suggestion, SC No. 1068/2016 Page 30 of 50 State vs. Javed Ahmed Judgment dt.18.09.2024 there is nothing in the entire cross-examination of the witnesses to impeach their testimony regarding preparation of notice under Section 50 of the NDPS Act by 1st IO/SI Rajni Kant and service of the original notice upon the accused at the spot before his search after apprising the accused of his legal rights which he denied to avail.
57. PW-7 Inspector Sanjay Neolia (the then SI), the 2 nd IO who conducted personal search of the accused after his arrest on the spot also corroborated the deposition of 1 st IO SI Rajni Kant that during personal search of accused, original notice under Section 50 of NDPS Act along with other articles were recovered which testimony could not be impeached by the Ld. Defence Counsel during his cross-examination.
58. The accused has not disputed the fact that reply/refusal on the carbon copy of the notice Ex. PW8/C bears his signatures. Though during course of the arguments, Ld. Defence Counsel has argued that the signatures of the accused were taken by the police on some blank documents which were subsequently converted into incriminating documents against the accused including notice under Section 50 of the NDPS Act, but this claim of the accused is not acceptable in the absence of any animosity or acquaintance pointed out by the accused with the police officials.
59. In view of the testimonies of the above prosecution SC No. 1068/2016 Page 31 of 50 State vs. Javed Ahmed Judgment dt.18.09.2024 witnesses, the prosecution has successfully proved on record that the accused was properly served with the notice under Section 50 of the NDPS Act at the spot 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
60. As per the prosecution case, SI Rajni Kant, the first IO of the case after getting the recovery effected from the possession of the accused drew samples out of the recovered contraband, sealed and seized them and sent the sealed case property to the SHO concerned who got deposited the sealed case property in the malkhana in compliance of Section 55 of the NDPS Act.
61. In this regard, PW-8 Inspector (the then SI) Rajni Kant deposed that he took out two samples of 5 grams each from 200 grams 'heroin'' recovered from the accused and the same were kept in two separate transparent polythenes and the same were converted into two cloth pullandas which were marked as A and B. He further deposed that remaining quantity of the contraband was kept in the same polythene and the same was also converted into a cloth pullanda and it was marked as C. He further deposed that he sealed all the three cloth pullandas of the contraband with the seal of '5A PS NB SC No. 1068/2016 Page 32 of 50 State vs. Javed Ahmed Judgment dt.18.09.2024 DELHI' and, thereafter, he filled FSL form at the spot and put same seal impression thereupon and then took the entire case property along with sample and FSL form into police possession vide seizure memo Ex.PW8/D. He, thereafter, prepared rukka Ex.PW8/E and handed over the same to Ct. Shani along with sealed samples, sealed case property, carbon copy of seizure memo and FSL form with direction to hand over rukka to Duty officer and the remaining things to the SHO, PS Crime Branch for compliance of proceedings under Section 55 NDPS Act.
62. The other two recovery witnesses PW-9 HC Shani and PW-12 ASI Vikas Kumar have deposed on the similar lines regarding seizure of contraband, sealing and sampling done by the 1st IO/SI Rajni Kant at the spot.
63. All the above witnesses were not cross-examined at all on this aspect and this part of their testimonies has gone unrebutted and unchallenged.
64. PW-9 HC Shani has also supported the version of PW-8 Inspector Rajni Kant that he was handed over the sealed case property and other relevant documents by SI Rajni Kant to be handed over to the SHO. He deposed that he left the spot at around 9.30 pm and reached at PS Crime Branch, Malviya Nagar at around 10.45 pm and handed over the tehrir to the Duty Officer for registration of FIR. He further deposed that at about 10.50 pm, he went to the room of SHO and handed over three sealed pullands, FSL form, carbon copy of secure memo to him who after checking the case property, the SHO confirmed SC No. 1068/2016 Page 33 of 50 State vs. Javed Ahmed Judgment dt.18.09.2024 the FIR number from the Duty Officer and mentioned the FIR number on the pullandas, seizure memo and FSL form. Thereafter, the SHO called MHCM to his office along with register no. 19 and handed over the sealed parcels, FSL form and copy of seizure memo to him who made entry in register no. 19 which was also counter signed by the SHO and the SHO also made a DD entry no. 24 Mark S at about 11.30 pm with regard to deposition of the case property.
65. The aforesaid testimony of the witness has remained unchallenged as the witness was not cross- examined at all on this aspect.
66. PW-9 Retd. ASI Jail Pal Singh, who was posted at PS Crime Branch as Duty Officer in the intervening night of 29/30.08.2016 has corroborated the aforesaid version of PW-9 HC Shani regarding handing over rukka to him. He deposed that on 29.08.2016, at about 10.45 pm, Ct. Shani brought the rukka sent by SI Rajni Kant and he dictated the contents of rukka to the computer operator and the FIR was registered, computerized copy of which is Ex. PW9/A and and the endorsement made by him to this effect on the rukka is Ex. PW9/B. He has also produced on record copy of DD nos. 23A and 25A regarding registration of FIR and its completion.
67. In the cross-examination, he stated that further investigation was handed over to SI Sanjay Neolia and the copy of FIR and original rukka was sent through Ct.
SC No. 1068/2016 Page 34 of 50State vs. Javed Ahmed Judgment dt.18.09.2024 Shani. He further stated that the further investigation was handed over to SI Sanjay Neolia from instructions of his senior officer i.e. SHO.
68. This cross-examination of the witness does not impeach his testimony regarding registration of FIR by him on the basis of rukka sent by SI Rajni Kant through Ct. Shani.
69. PW-10 Inspector Sunil Kumar, the then SHO, PS Crime Branch has also supported the version of PW-9 HC Shani regarding handing over of the sealed case property to him by PW-6 HC Shani and the proceedings carried out by him in compliance of Section 55 of the NDPs Act. He deposed in corroboration of deposition of PW-9 HC Shani regarding receipt of three sealed pullandas having seal of '5A PS NB DELHI' along with FSL form and carbon copy of seizure memo on 29.08.2016 from HC Shani and handing over the same to MHCM HC Jag Narain to be deposited in the malkhana after putting his seal 'SK' on the three sealed pullandas and on FSL form and mentioning the details of FIR thereupon. He also deposed that MHC(M) made entry in register no. 19 in this regard which was also signed by him and he registered DD no. 24 in this regard at about 11.30 pm Mark S.
70. Nothing material came out from the cross-
examination of this witness to doubt his aforesaid testimony. He categorically stated that he wrote down DD No. 24 in his own handwriting in his office. He further SC No. 1068/2016 Page 35 of 50 State vs. Javed Ahmed Judgment dt.18.09.2024 stated that the malkhana of Crime Branch is located at Malviya Nagar and Nehru Place. He further stated that on that day HC Jag Narain was present at malkhana at Malviya Nagar. He denied the suggestion that he did not receive any case property as mentioned.
71. The testimony of this witness (PW-10) has been further corroborated by PW-4 ASI Jag Narain, the then MHC(M) at PS Crime Branch who deposed that on 29.08.2016, he was called by SHO/Inspector Sunil Kumar who gave him three sealed pullandas marked A, B & C bearing seals of '5A PS NB DELHI' and 'SK' along with FSL form bearing same seal impressions and carbon copy of seizure memo and he made entry in this regard in register no. 19 at serial no. 2569 which was also signed by Inspector Sunil Kumar at point A. He produced copy of the relevant page of the register showing the said entry as Ex. PW4/A.
72. The aforesaid testimony of this witness (PW-4) has remained unrebutted and uncontroverted as the accused chose not to cross-examine this witness.
73. In view of the testimonies of aforesaid prosecution witnesses, it is apparent that after recovery of contraband, the sampling was done on the spot and the 1 st IO PW-8 Inspector Rajni Kant after sealing the samples and the remaining contraband seized the same and the pullandas of the contraband & samples along with FSL form were sent to PW-10 Inspector Sunil Kumar, the then SC No. 1068/2016 Page 36 of 50 State vs. Javed Ahmed Judgment dt.18.09.2024 SHO, PS Crime Branch through PW-9 HC Shani who also put his seal on the sealed pullandas and immediately deposited the case property in the malkhana through MHC(M). Hence, it stands proved that proper 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
74. As per requirement of Section 57 of the Act, whenever any person makes any arrest or seizure under this Act, he shall, within forty-eight hours after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate superior official.
75. As per deposition of PW-8 Inspector Rajni Kant, the 1st IO, he had prepared report u/s 57 NDPS Act Ex.PW1/C on 30.08.2016 and placed it before Inspector Vijender for onward transmission.
76. The witness was not cross-examined at all on this aspect and this part of his testimony has gone unrebutted and uncontroverted.
77. PW-7 Inspector Sanjay Neolia, the 2nd IO has also deposed that on 30.08.2016, he prepared special report under Section 57 of the NDPS Act regarding arrest of the accused Ex.PW1/E and produced it before Inspector Vijender.
78. There is nothing in the cross-examination of this SC No. 1068/2016 Page 37 of 50 State vs. Javed Ahmed Judgment dt.18.09.2024 witness to impeach his aforesaid deposition.
79. PW-11 Inspector Vijender Singh has corroborated the aforesaid versions of PW-8 Inspector Rajni Kant and PW-7 Inspector Sanjay Neolia. He deposed that on 30.08.2016, SI Rajni Kant placed before him report under Section 57 NDPS Act regarding recovery of contraband Ex.PW1/C which he signed at point C and forwarded to ACP Anti Narcotic Cell. He further deposed that on the same day, SI Sanjay Neolia also placed before him report under Section 57 of the NDPS Act regarding arrest of accused Javed which is Ex.PW1/E which he forwarded to ACP Anti Narcotic Cell after signing it at point C.
80. There is nothing material in the cross-examination of this witness to impeach his aforesaid deposition.
81. In order to prove that the information regarding seizure of the contraband from the possession of the accused and his arrest was made to the ACP concerned within the prescribed time, the prosecution has examined PW-1 ASI Dinesh Kumar, the then Reader posted in the ACP Office. He deposed that on 30.08.2016, he received two reports under Section 57 of the NDPS Act, one prepared by SI Rajni Kant regarding seizure of 200 grams 'heroin' and the other prepared by SI Sanjay Neolia regarding arrest of accused Javed Ahmed, both forwarded by Inspector Narcotics Cell. He made entries to the said effect in the daily diary register at Serial Nos. 2099 and 2100. He further deposed that he produced both the SC No. 1068/2016 Page 38 of 50 State vs. Javed Ahmed Judgment dt.18.09.2024 reports before ACP on the same day who after going through its contents signed the same at point A. He has also placed on record the said reports as Ex.PW1/C and Ex. PW1/E respectively bearing signature of ACP at point A as well as the copies of entries made by him as Ex.PW1/D & Ex. PW1/F respectively.
82. Nothing material came in the cross-examination of this witness to impeach his aforesaid testimony.
83. Even otherwise, testimony of this witness has been corroborated by PW-5 ACP Sanjeev Tyagi who was posted as ACP, Narcotics Cell, Crime Branch during the relevant time. He deposed that on 30.08.2016, two reports under Section 57 of the NDPS Act, one prepared by SI Rajni Kant regarding seizure of 200 grams 'heroin' and the other prepared by SI Sanjay Neolia regarding arrest of accused Javed Ahmed in the present case, both forwarded by Inspector Vijender, Narcotics Cell were produced before him and he signed both the reports after satisfying himself regarding the contents of the same.
84. The witness was not cross-examined on this aspect and this part of his testimony has gone unrebutted and unchallenged.
85. In view of the above discussions, the prosecution has successfully proved on record that two reports under Section 57 of the NDPS Act, one prepared by SI Rajni Kant, the 1st IO dated 30.08.2016 regarding seizure of the contraband from the possession of the accused which SC No. 1068/2016 Page 39 of 50 State vs. Javed Ahmed Judgment dt.18.09.2024 is Ex.PW1/C and another prepared by SI Sanjay Neolia, the 2nd IO dated 30.08.2016 regarding arrest of the accused which is Ex. PW1/E were produced before PW-11 Inspector Vijender Singh on 30.08.2016 who immediately forwarded the same to ACP Sanjeev Tyagi which were received in the ACP office on the same day i.e.30.08.2016 and the same were also signed by ACP Sanjeev Tyagi on the same day i.e. within the prescribed time. 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
86. During course of the 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.
87. Admittedly, in the present case no public or independent witness has been joined during course of the investigation. In this regard, PW-8 Inspector SI Rajni Kant deposed that before reaching the spot on the way, they had stopped after crossing Shanti Van red light, at Anand Vihar Railway station and on the service road opposite Anand Vihar Railway Station and asked 5-6 persons to join the raiding party after disclosing the secret SC No. 1068/2016 Page 40 of 50 State vs. Javed Ahmed Judgment dt.18.09.2024 information to them but all of them refused to join the investigation stating their reasonable causes and left from there without disclosing their names and addresses and due to paucity of time no legal notice was served upon them. He further deposed that after apprehension of the accused, some passersby i.e 7-8 persons had gathered there out of curiosity and he asked them to join the raiding party but none agreed.
88. In his cross-examination, he stated that nearest police station was PS Patpartganj from the place of apprehension of the accused. He further stated that SHO PS Patparganj was not approached. He denied the suggestion that no public person was joined into the investigation deliberately to falsely implicate the accused.
89. From the aforesaid cross-examination of the witness, it is apparent that his testimony regarding non joining of the public witnesses in the investigation could not be impeached by the Ld. Defence Counsel. Though the witness stated that he did not approach SHO PS Patparganj, which is the nearest police station from the place of apprehension of the accused. However, it is to be noted here that SI Rajni Kant received the secret information at about 4.00 pm on 29.08.2016 and after satisfying with the information, he produced the secret informer before his immediate superior officer Inspector Vijender Singh at 4.15 pm who in turn intimated the ACP concerned about the secret information and directions were received to conduct the raid. Thereafter, SI Rajni SC No. 1068/2016 Page 41 of 50 State vs. Javed Ahmed Judgment dt.18.09.2024 Kant reduced the secret information in writing vide DD No. 22 Ex.PW1/A at 4.30 pm in compliance of provisions of under Section 42 of the NDPS Act and constituted a raiding party. He left the Narcotics Cell along with other team members for the spot at around 4.45 pm in his private car. As per the secret information, the accused was supposed to come on service road, opposite Anand Vihar Railway Station between 5.30 pm to 6.00 pm to supply 'heroin' to someone. It has also come on record from the testimonies of recovery witness that they reached at the spot at 5.30 pm. In these facts, if SI Rajni Kant did not approach the nearest police station due to paucity of time as also explained by him during his chief examination, nothing adverse can be inferred.
90. It was not the case here that IO/SI Rajni Kant did not try to associate the public persons in the investigation before apprehension of the accused. He had asked the public persons to join the investigation at three places at Shanti Van red light, at Anand Vihar terminal gate and at the spot but they refused to join the investigation. It is also a fact that no notice was served by SI Rajni Kant upon the public persons who had refused to join the investigation. But as noted earlier, he did not have sufficient time to serve the notice upon the public persons because if he had devoted his time in writing down the names and addresses of the passersby to serve the notice upon them, there was every possibility that the accused could have escaped.
91. Even otherwise, non joining of independent witness SC No. 1068/2016 Page 42 of 50 State vs. Javed Ahmed Judgment dt.18.09.2024 in the present case is not fatal to the prosecution case in view of testimonies of prosecution witnesses particularly of recovery witnesses who have corroborated each other on material aspects and their testimonies could not be impeached by the Ld. Defence Counsel. 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.
92. 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.
SC No. 1068/2016 Page 43 of 50State vs. Javed Ahmed Judgment dt.18.09.2024 1690-1691 of 2012 decided on 19.10.12, it was held :-
"In a case of this nature, it is better if prosecution examines at least 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 prosecution case".
93. 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".
94. 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 Swaroop v. State (Govt. NCT) of Delhi', SC No. 1068/2016 Page 44 of 50 State vs. Javed Ahmed Judgment dt.18.09.2024 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 non-examining the independent witnesses."
95. 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 efforts were made by the PW-8 Inspector Rajni Kant to join investigation. Secondly, the testimonies of the police officials do not suffer from any material contradictions. Thirdly, 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 reason of non joining of public witnesses and the prosecution case cannot be doubted for non-examining the independent witnesses.
96. The Ld. Defence Counsel has also vehemently assailed the sampling of the contraband done by the 1 st IO SC No. 1068/2016 Page 45 of 50 State vs. Javed Ahmed Judgment dt.18.09.2024 PW-8 Inspector Rajni Kant on the spot during course of the arguments. He contended that sampling was done in violation of Section 52 A (2) of the NDPS Act and the 1 st 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.
97. It is a matter of record that samples of the contraband recovered from the possession of the accused were drawn by SI Rajni Kant, 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 sub-section 2 of Section 52A of the NDPS Act has rendered the entire prosecution against the accused vitiated as argued by the Ld. Defence Counsel.
98. In Simaranjit Singh vs. State of Punjab, Criminal Appeal No. 1443 of 2023 decided on 09.05.2023, similar issue was raised by the Ld. Counsel for the appellant that the prosecution is vitiated as the work of drawing sample was done by PW-11 without taking recourse to sub- section 2 of Section 52A of the NDPS Act.
99. The Hon'ble Apex Court while referring to paragraphs 15 to 17 of its decision in Union of India vs. Mohanlal & Anr., (2016) 3 SCC 379 observed as under: -
"9. Hence, the act of PW-11 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 SC No. 1068/2016 Page 46 of 50 State vs. Javed Ahmed Judgment dt.18.09.2024 creates a serious doubt about the prosecution's case that substance recovered was a contraband".
100. 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.
101. In Yusuf @ Asif vs. State, Criminal Appeal No. 3191 of 2023 decided on 13.10.2023, a case was registered in the year 2000 on the basis of information received by the Intelligence Officer of Narcotics Control Bureau. As per the information, a vehicle was intercepted on 28.03.2000 and four persons present in the vehicle were found in possession of commercial quantity i.e. 20 kilogram of 'heroin'. After trial, all the said four persons were held guilty under the provisions of NDPS Act and they were sentenced to rigorous imprisonment for 10 years and to pay fine of Rs. 1 lakh each, in default to undergo further imprisonment of one year. The said conviction was confirmed by the Hon'ble High Court by dismissing the appeal preferred by all the four convicts holding that there was no error in the findings of the Trial Court. Aggrieved by his conviction and sentence, one of the convicts has preferred an appeal before the Hon'ble Apex Court.
SC No. 1068/2016 Page 47 of 50State vs. Javed Ahmed Judgment dt.18.09.2024
102. The Hon'ble Supreme Court taking note of provisions of Section 52A(2), (3) and (4) of the NDPS Act, held as under: -
12. A simple reading of the aforesaid provisions, as also stated earlier, reveals that when any contraband/narcotic substance is seized and forwarded to the police or to the officer so mentioned under Section 53, the officer so referred to in sub section (1) shall prepare its inventory with details and description of the seized substance like quality, quantity, mode of packing, numbering and identifying marks and then make an application to any Magistrate for the purposes of certifying its correctness and for allowing to draw representative samples of such substances in the presence of the Magistrate and to certify the correctness of the list of samples so drawn.
13. Notwithstanding the defence set up from the side of the respondent in the instant case, no evidence has been brought on record to the effect that the procedure prescribed under sub-
sections (2), (3) and (4) of Section 52A of the NDPS Act was followed while making the seizure and drawing sample such as preparing the inventory and getting it certified by the Magistrate. No evidence has also been brought on record that the samples were drawn in the presence of the Magistrate and the list of the samples so drawn were certified by the Magistrate. The mere fact that the samples were drawn in the presence of a gazetted officer is not sufficient compliance of the mandate of sub-section (2) of Section 52A of the NDPS Act.
14. It is an admitted position on record that the samples from the seized substance were drawn by the police in the presence of the gazetted officer and not in the presence of the Magistrate. There is no material on record to prove that the Magistrate had certified the inventory of the SC No. 1068/2016 Page 48 of 50 State vs. Javed Ahmed Judgment dt.18.09.2024 substance seized or of the list of samples so drawn.
15. In Mohanlal's case, the apex court while dealing with Section 52A of the NDPS Act clearly laid down that it is manifest from the said provision that upon seizure of the contraband, it has to be forwarded either to the officer-in-charge of the nearest police station or to the officer empowered under Section 53 who is obliged to prepare an inventory of the seized contraband and then to make an application to the Magistrate for the purposes of getting its correctness certified. It has been further laid down that the samples drawn in the presence of the Magistrate and the list thereof on being certified alone would constitute primary evidence for the purposes of the trial.
16. In the absence of any material on record to establish that the samples of the seized contraband were drawn in the presence of the Magistrate and that the inventory of the seized contraband was duly certified by the Magistrate, it is apparent that the said seized contraband and the samples drawn therefrom would not be a valid piece of primary evidence in the trial. Once there is no primary evidence available, the trial as a whole stands vitiated.
103. 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.
104. In the instant case, it has come on record from the testimonies of recovery witnesses that PW-8 Inspector SC No. 1068/2016 Page 49 of 50 State vs. Javed Ahmed Judgment dt.18.09.2024 Rajni Kant, 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.
105. Accordingly, accused Javed Ahmed is acquitted of the offence punishable under Section 21 of the NDPS Act. Bail 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 481 (1) BNSS, 2023 in the sum of Rs.10,000/- are accepted, which shall remain in force for a period of six months.
106. File be consigned to Record Room after necessary Digitally compliance. signed by BALWANT BALWANT RAI BANSAL RAI Date:
BANSAL 2024.09.21
11:33:49
+0530
Announced in the open Court
on 18th September, 2024 (Balwant Rai Bansal)
Special Judge (NDPS Act), Shahdara
Karkardooma Courts, Delhi
SC No. 1068/2016 Page 50 of 50
State vs. Javed Ahmed Judgment dt.18.09.2024