Delhi District Court
(6) After A Search Is Conducted Under Sub vs State Fo Delhi on 28 April, 2022
IN THE COURT OF MS.NEELOFER ABIDA PERVEEN
ADDITIONAL SESSIONS JUDGE (CENTRAL DISTRICT) :
TIS HAZARI COURT:DELHI
C.N.R. No. DLCT01-000193-2015
S. C. No. 14/2015
FIR No. 98/2014
PS Crime Branch
U/s 21/29 NDPS Act
In the matter of:-
State
Versus
1. Nisha,
W/o Sh. Sunil,
R/o H. No.10613, Gali No.3,
Andha Mughal, Pratap Nagar,
Delhi.
2. Maya,
W/o Late Roshan Lal,
R/o H. No.10605, Gali No.6,
Andha Mughal, Pratap Nagar,
Delhi.
Date of Institution : 26.03.2015
Date of Judgment : 28.04.2022
JUDGMENT
Accused Nisha and Maya stand charged for commission of offences under section 21 r.w.s. 29 of the Narcotic Drugs and FIR No.98/2014 State v. Nisha etc. page no.1 Psychotropic Substances Act, 1985 (hereinafter referred to as the Act) on the accusation that on 19.09.2014 at 2 p.m. at Service Road, Gali No.6, Andha Mugal, Pratap Nagar, Delhi, accused Nisha was found in conscious possession of 105 grams of heroin which was supplied / sold to accused Nisha by accused Maya in furtherance of criminal conspiracy to sell/supply the same to others.
1. Briefly put, the case of the prosecution against the two accused is that on 19.9.2014 at around 12 pm secret information was received by SI Dinesh Kumar at Narcotic Cell Office that Nisha and Maya who both are residents of Andha Mughal Partap Nagar Delhi are engaged in the supply of heroin in Delhi in small and bulk quantities and on that day between 1.45 pm to 2 pm are likely to come at the corner of service road gali no.6 Andha Mughal Partap Nagar Delhi to supply heroin to someone and can be apprehended with heroin if timely raid is conducted. The secret information was reduced into writing at 12.30 pm vide DD No. 18 and put up before Inspector Akash Rawat, the immediate official superior in compliance of section 42 of the Act, raiding team was constituted as per the directions of the superior officers headed by SI Dinesh Kumar with W/CT. Pooja, and Ct. Ram Dass that left for the disclosed spot at 1 pm vide DD No.20 along with the secret informer and reached in front of main road, gali No.6, Andha Mughal Partap Nagar at around 1.45 pm and apprehended accused Nisha at around 1.55 pm and recovered 105 gms of heroin from her possession, samples were drawn, case property was seized, accused Nisha was arrested by SI Rajnikant at 6.15 pm, accused Nisha in custody disclosed to have purchased the recovered heroin from accused Maya. Efforts were made to trace accused Maya, and FIR No.98/2014 State v. Nisha etc. page no.2 proceedings under section 82 Cr.PC were initiated, in the meanwhile accused Maya had applied for anticipatory bail and surrendered at Tis Hazari Court, no recoveries were effected at her instance nothing incriminating was recovered against accused Maya. FSL Result was received, Chargesheet was filed upon completion of investigation, there being sufficient material against the accused, charges under section 21 rws 29 NDPS Act were framed against both the accused to which they pleaded not guilty and claimed trial, at which prosecution was called upon to lead evidence.
2. PROSECUTION EVIDENCE In all the prosecution had examined 12 witnesses.
PW-1 Ct. Shani deposited samples at FSL.
PW-2 ASI Jai Prakash is the Duty Officer who got the present FIR No.98/14 registered, and has tendered Computerized copy of FIR as Ex. PW-2/A signed by him at point A, his endorsement on the original rukka as Ex. PW2/B, Kayami entry vide DD No.23 for registration of FIR as Ex.PW2/C (OSR), Bandi entry vide DD no.26 in respect to completion of registration of FIR as Ex. PW2/D. PW-3 HC Satyawan was the Duty Officer at Narcotics Cell and recorded DD No.28 in respect of the information received pertaining to the FIR, and tendered DD entry no.28 as Ex. PW3/A. PW-4 HC Ram Bhool was working as Reader to ACP, Crime Branch (Narcotics) and is examined to prove reports under section 42 and 57 of the Act, and has tendered Carbon copy of DD no.18 as Ex. PW4/A, original DD no.18 as Ex. PW4/A1, Photocopy of diary no.2264 as Ex. PW-4/B, report u/s 57 NDPS Act regarding seizure memo of 105 grams of heroin and the special report u/s 57 NDPS Act regarding FIR No.98/2014 State v. Nisha etc. page no.3 arrest of accused, as Ex. PW-4/D and PW4/E, and entries at sl. No.2269 and 2270 of the same as Ex. PW-4/C, Carbon copy of report u/s 57 NDPS Act regarding arrest of Maya Devi as PW-4/G, and its original as Ex. PW-4/G1, entry at sl. no.477 in diary register in this regard as Ex. PW4/F (OSR).
PW-5 HC Jag Narain is the MHC(M) and has proved the entries in register no.19 and 21 regarding the safe deposit of case property in the malkhana, and tendered entries at sl. no.2208 and sl. no.2209 as Ex. PW-5/A and Ex. PW-5/B, copy of RC No.312/21/14 as Ex. PW-5/C (OSR), endorsement on the register no.19 against main entry regarding sending of sample to FSL as Ex. PW-5/C1 which is in his handwriting, Copy of acknowledgment receipt as Ex. PW-5/C2, endorsement in register no.19 regarding receipt of FSL result as Ex. PW-5/D. PW-6 SI Dinesh Kumar is the empowered officer who received the secret information, and apprehended accused Nisha, sealed and seized the case property, and has tendered attested copy of DD no.18 as Ex. PW-4/A1, Copy of DD no.20 as Ex. PW-6/A, notice under section 50 of the Act as Ex. PW-6/B, reply of accused Nisha appended to original notice as Ex.PW6/C, seizure memo as Ex. PW6/D, rukka as Ex. PW6/E, rough site plan of the spot as Ex. PW-6/F, disclosure statement of accused Nisha as Mark PW-6/G, arrest memo as Ex. PW- 6/H. He identified the case property as Ex. P1, Ex. P2, and Ex. P3, and correctly identified accused Nisha.
PW-7 Inspector Manjeet Tomar was serving as SHO, PS Crime Branch, and is examined to prove compliance of section 55 of the Act.
PW-8 W. Constable Pooja was also a member of the raiding team that apprehended accused Nisha and carried the personal search FIR No.98/2014 State v. Nisha etc. page no.4 of the accused, and has tendered personal search memo of the accused Nisha as Ex. PW8/A, carbon copy of notice u/s 50 of NDPS Act as Ex. PW8/B. PW-9 Inspector Rajni Kant was assigned investigation after registration of the FIR and had arrested accused Nisha and Maya. He tendered attested copy of DD No.28 as Ex. PW9/A, in pursuance whereof investigation was assigned to him, attested copy of departure entry DD No.9 as Ex. PW9/B, disclosure statement of accused Nisha as Ex. PW9/C, Attested copy of DD No.31 as Ex. PW9/D, pointing out memo of house of Maya as Ex. PW9/E, report under Section 57, Arrest memo of accused Maya as Ex. PW9/F, her personal search memo as Ex. PW9/G, disclosure statement of accused Maya as Mark PW9/A house search memo as PW9/H, FSL result prepared by Sh. Amit Rawat, Sr. Scientific Officer (Chemistry), FSL, Delhi 17.11.2014 as Ex. PA.
PW-10 Inspector Akash Rawat is examined to prove compliance of section 42 of the Act.
PW-11 HC Ram Dass is also member of the raiding team that apprehended accused Nisha. He took the case property documents for compliance of section 55 of the Act before the SHO concerned and Rukka for recording of the FIR at the police Station.
PW12 ASI Amla Merry deposed regarding the arrest of accused Maya and has tendered Supplementary disclosure statement of accused Maya as Ex. PW-12/A.
3. STATEMENT UNDER SECTION 313 CR.PC.
When examined under section 3131 Cr.PC, accused Nisha denied all allegations and contended that she was lifted from her house and FIR No.98/2014 State v. Nisha etc. page no.5 was taken to Narcotic Cell and there she was forced to sign some blank and semi printed papers which were later on converted into different documents to make out a false case against her. That no notice u/s 50 NDPS Act was ever served to her and she was never apprised about her legal rights. She never made any disclosure statement and she was having no connection with co-accused Maya. That false and fabricated report was sent u/s 42 NDPS Act after making false and wrong entries. That Ct. Pooja never took her search and no black polythene with contraband was recovered from her possession. She never made any disclosure statement to SI Rajnikant. She was never apprehended at the place and time as mentioned in the arrest memo. Nothing was recovered from her, case property is planted and police officials wrongly identified the case property as they were interested witnesses. In her statement recorded u/s 313 accused Maya stated that she was not absconding and that IO obtained her non- bailable warrants from the court by furnishing false information against her.
4. ARGUMENTS Ld. Counsel for the accused contended that the proceedings are vitiated as the recovery which was planted in the first place has not been shown to have been effected by an empowered officer. That it is the own case of the prosecution that the personal search of accused Nisha was taken by W/Ct. Parul who is not an empowered officer in terms of section 41/42 read with section 50 of the Act, and that the entire recovery proceedings alleged against the accused are accordingly vitiated. That here is no iota of evidence against accused Maya, there is nothing to connect accused Nisha and Maya, there is nothing to show that the recovered contraband alleged against FIR No.98/2014 State v. Nisha etc. page no.6 accused Nisha was supplied to her by accused Maya. There is infact nothing incriminating against accused Maya. Ld.defence Counsel has relied upon the following judicial pronouncements:
(i) Ld. APP for the State submitted that the judgment relied upon by the Ld. Defence Counsel is not disputed and is the latest judgment of H'ble the Delhi High Court on the subject, that the recovery proceedings are carried out in pursuance to a secret information received by SI Dinesh in compliance of all procedural safeguards, that the personal search of accused Nisha is conducted by W/Ct. Parul in the presence of SI Dinesh and 105 gms of heroin is recovered from her possession. That there is no incriminating material alleged against accused Maya. That there are no CDR connecting the two accused.
5. DISCUSSION It is the case of the prosecution that upon a secret information received by SI Dinesh, accused Nisha was apprehended at Service Road, Gali No.6, Andha Mugal, Pratap Nagar, Delhi, and 105 grams of heroin was recovered from her possession, the discussion need therefore necessarily to commence with the deposition of SI Dinesh examined as PW-6.
(i) It is in the statement of PW6, SI Dinesh, that on 19.09.2014, while serving as Sub Inspector at Narcotics Cell, Crime Branch, Kotwali, Darya Ganj, Delhi, at about 12:00 Noon, when he was present in his office, one secret informer came to him and informed that two ladies namely Maya and Nisha r/o Andha Mughal, Pratap Nagar, Delhi who supply heroin in Delhi in wholesale and retail, on that day, they would come at the corner of Gali no.6, Service Road, Andha Mughal, Delhi to FIR No.98/2014 State v. Nisha etc. page no.7 supply heroin to someone and If raid is conducted, they can be apprehended. That after satisfying himself with the secret information, he produced the secret informer before Inspector Akash Rawat who after making inquiry from the secret informer, informed ACP R.K. Tyagi and ACP R.K. Tyagi instructed the Inspector to take action immediately and the Inspector directed him accordingly. Thereupon, he recorded the secret information vide DD no.18, attested copy of DD no.18 is Ex. PW-4/A1, and copy of DD No.18 was produced by him before Inspector Akash Rawat. He then constituted a raiding party consisting of himself, W/Ct. Pooja, HC Ram Dass and secret informer, collected IO bag, field testing kit and electronic weighing machine and Vide DD No.20, Copy of which is Ex. PW-6/A, recorded at about 1:00, they proceeded for the disclosed place, in government vehicle bearing registration no.DL 1CM 4228, being driven by HC Abdul Hakim and reached at the spot at about 1:45 PM via ring road, ISBT, Kashmere Gate, Tis Hazari, Azad Market, Pratap Nagar. On the way, in front of ISBT, Kashmere Gate, he offered 4-5 persons to join the party but no one came forward. Even at the spot, he tried to join 5 persons from the public but no one joined.
(ii) He briefed the raiding party after reaching at the spot. The government vehicle was got parked at a distance of 25 meter towards Pratap Nagar Metro Station where they alighted. All the members of raiding party took their position near the spot. That at about 1:55 PM, one lady Nisha, accused, was seen coming from street no.6, Andha Mughal, Pratap Nagar, who came and stood at the corner of gali no.6 and started waiting for someone. The secret informer pointed out towards Nisha as the concerned lady against whom he had passed on secret information. After pointing out towards Nisha, secret informer went away. Nisha waited at the corner of street no.6 for 4-5 minutes FIR No.98/2014 State v. Nisha etc. page no.8 and when she was going to leave that place with the aid of other members of the party, she was apprehended. He introduced himself and other members of raiding party to accused Nisha. HC Abdul Hakim was asked to bring the vehicle to that place and he complied with. He also informed Nisha about secret information and also about her legal right of being subjected to search in presence of gazetted officer and magistrate if she so desired and that she could even subject him and other members of raiding party and government vehicle even, if so desired. He also served notice upon the accused u/s 50 of the Act, Ex. PW-6/B, and delivered its carbon copy on accused Nisha. That notice was also got attested from attesting witnesses and accused also signed the same. He explained to the accused meaning of gazetted officer or magistrate. She refused to be subjected to search in presence of gazetted or magistrate or even to conduct search of the government vehicle and personal search of members of raiding party. Accused Nisha told that she is illiterate, and on her request, he recorded reply on her behalf as narrated by her appended to original notice as Ex.PW6/C. That 4-5 persons from public gathered around them, he asked them to join the party but none of them joined.
(iii) That thereafter, Lady Ct. Pooja conducted personal search of the accused Nisha inside the government vehicle. After sometime, Lady Ct. Pooja came out of the said vehicle with Nisha accused, holding a black colour polythene, and told him that the black colour polythene was recovered from the left hand of Nisha accused and produced the black colour polythene before him. He found that the polythene was containing another transparent polythene, and the transparent polythene was found containing matiala colour powder. He took out some quantity from the recovered powder and tested it on testing kit FIR No.98/2014 State v. Nisha etc. page no.9 and it was found to be heroin. Thereafter, he weighed both the polythenes with matiala colour powder contained in one of them and their total weight was 105 gms. That he took out two samples of 5 gms. each, which were turned into two separate cloth parcels and given mark A and B. The residue contained in the transparent polythene alongwith the black colour polythene was turned into a cloth parcel, given mark C. He filled in FSL form. He affixed his seal bearing impression 3 APSNB DELHI on the three parcels and also affixed its impression on FSL form. Seal after use was handed over to lady Ct. Pooja. All the three parcels then were seized by him vide memo Ex. PW6/D. He prepared the rukka Ex. PW6/E and delivered the same to Ct. Ram Dass alongwith three sealed parcels, FSL form and carbon copy of seizure memo and directed him to go to PS Crime Branch and to deliver the rukka to Duty Officer and produce the remaining items before the SHO, and at about 4.15 p.m, Ct. Ram Dass left the spot with these items by government vehicle driven by HC Abdul Hakim.
(iv) That at 5.50 p.m, SI Rajnikant reached the spot by a private vehicle. He produced Nisha accused and the documents prepared by him before SI Rajnikant. At his pointing out, SI Rajnikant prepared rough site plan of the spot that is Ex. PW-6/F. SI Rajnikant made enquiry from accused Nisha and recorded disclosure statement of accused Nisha who disclosed to have obtained the aforesaid quantity of heroin from one Maya. Disclosure statement made by accused Nisha is Mark PW-6/G, that before recording disclosure statement of Nisha, she was arrested vide memo Ex. PW-6/H. The personal search of the accused was conducted by W/Ct. Pooja. Thereafter all of them left the spot at about 6:45 pm and reached PS Crime Branch and from there, they reached Narcotics Cell, Darya Ganj at about 9:30 pm where FIR No.98/2014 State v. Nisha etc. page no.10 SI Rajnikant recorded his statement and he prepared report of section 57 of the Act on the same night which was delivered to Inspector Akash Rawat in the morning. Copy of the report under section 57 of the Act is Ex. PW4/D. He identified accused Nisha and the case property as EX.P1, Ex. P2, and EX. P3.
(v) The secret information was put up before Inspector Akash Rawat, PW-10, and it is in his statement that on 19.09.2014, while he was serving as Inspector Narcotics Cell at Narcotic Office Kotwali, at about 12:15 pm, SI Dinesh Kumar came to his office and told him that he had a secret information about two ladies Maya and Nisha, who both were residents of Andha Mughal area, Delhi, that they are engaged in the supply of heroin in Delhi area. He further told him that on the said date, both the said ladies would come between 1:45 and 2:00 pm at service road, corner of Gali No.6, Andha Mughal, Pratap Nagar, Delhi to supply the heroin to some person and if raid is conducted, they could be apprehended. Thereafter, SI Dinesh brought the secret informer and produced before him, he verified the above information from the informer and after having satisfied himself about the information, he conveyed the said information to the ACP, Narcotic Cell, Sh. R.K. Tyagi, who had directed to conduct raid and take necessary action in pursuance of the information and accordingly, he directed SI Dinesh to constitute the raiding party. SI Dinesh recorded DD No.18 in compliance of Section 42 of NDPS Act, which was put up before him and he forwarded the same to ACP. The DD no.18 is already Ex. PW4/A1 bearing his signatures at point A. Thereafter, SI Dinesh constituted raiding party comprising of lady Ct. Pooja, Ct. Ram Dass, HC Abdul and the secret informer. They departed from the office in a government vehicle for the disclosed place. Then on the same day, FIR No.98/2014 State v. Nisha etc. page no.11 at about 9:30 p.m., SI Rajnikant alongwith one lady namely Nisha came to his office and he apprised him about the recovery of heroin from the possession of said Nisha and about her arrest in this case. He made inquiry from said Nisha and about her arrest in this case, and found her arrest justified in this case. SI Rajnikant recorded his statement between 9:45 p.m. to 10:05 pm. That on the next day, during the routine office work, report u/s 57 NDPS Act regarding the seizure of 105 grams heroin from accused Nisha prepared by SI Dinesh and the other report regarding her arrest prepared by SI Rajnikant were put up before him and he forwarded both the reports to the ACP. The report prepared by SI Dinesh is already Ex. PW4/E1 bearing his signature at point A. Thereafter, on 19.02.2015, another accused Maya was arrested in this case as told to him by SI Rajnikanth. He has correctly identified accused Nisha in the court.
(vi) The secret information put up before Inspector Akash Rawat was forwarded to the ACP, Narcotic Cell, Sh. R.K. Tyagi, and the prosecution has examined the then Reader to the ACP to prove the receipt of the reports as PW-4. HC Ram Bhool, PW4, has deposed that on 19.09.2014, he was working as Reader to ACP, Crime Branch (Narcotics). On that day, at about 12.45 PM, Inspt. Akash Rawat handed over to him the copy of DD No.18 dated 19.09.2014 of Narcotics Cell, Kotwali and he made an entry in the diary register at sl. no.2264, and produced copy of DD No.18 before ACP/NNCP. He produced carbon copy of said DD entry and the diary register. Carbon copy of DD no.18 is Ex. PW4/A. He also produced original DD no.18 as Ex. PW4/A1. Photocopy of diary no.2264 is Ex. PW-4/B. It is further in his statement that on 20.09.2014, Inspt. Rawat handed over report u/s 57 NDPS Act regarding seizure memo of 105 grams of heroin and the FIR No.98/2014 State v. Nisha etc. page no.12 special report u/s 57 NDPS Act regarding arrest of accused. He made entry at sl. No.2269 and 2270 regarding the same in the diary register. The photocopy of the relevant page of diary register is Ex. PW-4/C, Carbon copy of report of seizure is Ex. PW-4/D and that of arrest is PW4/E. He also produced the original reports as EX.PW4/D1 and EX.PW4/E1. That on 19.02.2015, SI Rajni Kant Sharma handed over report u/s 57 NDPS Act regarding arrest of Maya Devi for which he made entry at sl. no.477 in diary register. Photocopy of the relevant page of diary register is Ex. PW4/F (OSR) and carbon copy of report of arrest is PW-4/G. He also produced its original as Ex. PW-4/G1.
6. W/Constable Pooja, a member of the raiding team who conducted the personal search of accused Nisha is examined as PW8 and has deposed that on 19.09.14, while serving as Constable in Narcotics Cell, Crime Branch, Kotwali, she was called by SI Dinesh alongwith Ct. Ram Dass to his office. SI Dinesh informed them that two ladies by the name of Maya and Nisha r/o Aandha Mughal, Pratap Nagar, Delhi, who used to supply heroin in wholesale and retail were expected to visit service road, street no.6, Aandha Mughal, Pratap Nagar on that day in between 1:45 pm to 2:00 pm for supply of heavy quantity of heroin and that a raid was to be conducted. That SI Dinesh, himself, Ct. Ram Dass, secret informer and another police official whose name she could not remember, started from Narcotic Cell, Crime Branch by government gypsy No. DL-1CM-4228, driven by a police official, whose name, she did not remember. That they started at 1:00 pm for the disclosed place, reached the spot and took their respective positions at the disclosed place i.e. corner of street no.6, main road, Aandha Mughal, Pratap Nagar, Delhi at about 1:50 pm, and at about 1:55 pm, Nisha-accused FIR No.98/2014 State v. Nisha etc. page no.13 was seen coming from inside street no.6 towards place where they had taken positions. Secret informer pointed out towards her that she was Nisha. Nisha stopped at a distance from them and started looking here and there, 3-4 minutes thereafter, when she was about to go back SI Dinesh with her assistance and assistance of Ct. Ram Dass, stopped Nisha. SI Dinesh apprised her of the secret information available with them. She then conducted personal search of accused Nisha in the government vehicle. That prior thereto, notice u/s 50 NDPS Act was served upon Nisha and she was explained/informed by SI Dinesh that she could make statement before Gazetted Officer. Accused was further apprised that in case she was not inclined to get herself searched in their presence, she could make statement before Gazetted Officer. That SI Dinesh prepared notice u/s 50 of the Act with one carbon copy thereof. Carbon copy was delivered by SI Dinesh to the accused and against delivery, her signatures were obtained on the original. That before delivery of carbon copy, the contents of the notice were read over to the accused. That she had not put her signatures on the said notice, that the notice Ex. PW6/B bears signatures of accused Nisha at point B. That no reply of the accused was recorded.
(ii) That after service of the notice, she conducted personal search of the accused in government vehicle. That Nisha accused was carrying a polythene in her left hand. The said polythene had some substance heavy in weight. She produced the said polythene before SI Dinesh. SI Dinesh checked the contents of the polythene by taking out 5 gms of the substance on the field testing kit and it turned out to be heroin. Thereafter, SI Dinesh took out two samples, each of 5 gms, from the recovered substance. Both these parcels were turned into cloth parcels. That the total weight of substance recovered from the FIR No.98/2014 State v. Nisha etc. page no.14 accused was 105 gms with the recovered polythene. After taking out, two samples of 5 gms each, the residue and recovered polythene were turned into a separate cloth parcel. SI Dinesh filled in FSL Form. SI Dinesh affixed seal bearing impression "3APSNBDELHI" on all the three parcels. After use, SI Dinesh delivered the seal to her. SI Dinesh prepared rukka, and delivered the rukka and three parcels to Ct. Ram Dass who then left the spot with these items. That then SI Rajneesh reached the spot. SI Dinesh apprised SI Rajneesh of the arrest and recovery from accused Nisha. Thereafter, all of them left the spot and reached Police Station Crime Branch and there, accused Nisha was produced before the SHO. Thereafter, all of them reached Narcotic Cell, Crime Branch, Kotwali, where her statement was recorded. That at the time when she had conducted personal search of the accused in government gypsy, currency notes worth Rs.250/- were also recovered from her possession. PW8 correctly identified accused Nisha and the case property parcels as EX.P1 to EX.P3.
(iii) PW8 was examined by the Ld. ADDL. PP for the State and in course thereof, PW8 identified her signatures at point C on the document Ex. PW6/B and at point D on the document Ex. PW6/C and admitted that the reply of accused Nisha was written and the same is Ex. PW6/C, that after sealing the case property and the samples, the case property was seized with the FSL Form through memo Ex. PW6/D which bears her signature at point B, and further that SI Rajnikant arrested accused Nisha and prepared her arrest memo Ex. PW6/H which bears her signature at point B, and that at that time when she conducted personal search of accused Nisha on the direction of SI Rajnikant, one carbon copy of notice u/s 50 of NDPS Act was also recovered from her possession. That SI Rajnikant prepared the FIR No.98/2014 State v. Nisha etc. page no.15 personal search memo of the accused which is Ex. PW8/A which bears her signature at point A. That accused Nisha was interrogated and she made disclosure statement Ex. PW-6/G which bears her signatures at point A. Carbon copy of notice u/s 50 of NDPS Act was identified by her as Ex. PW8/B bearing her signatures at point A.
(iv) HC Ram Dass the other member of the raiding team when examined as PW11 deposed that on 19.09.2014, while posted at Narcotic Cell, Crime Branch Kotwali, Darya Ganj, Delhi, a secret informer came to SI Dinesh Kumar and informed that two ladies namely Maya and Nisha, who were the residents of Andha Mughal, Pratap Nagar, Delhi, used to supply heroin and if raided, they could be apprehended from Gali No.6, Service Road, Andha Mughal, Pratap Nagar. SI Dinesh called him, W/Ct. Pooja, and SI Abul Hakim in his office and informed them about the secret information that he had. Inspector Akash Rawat, Narcotic Cell was also informed about the secret information and SI Dinesh was instructed to conduct the raid. SI Dinesh reduced the said secret information into DD entry no.18 already Ex. PW4/A1 and he constituted a raiding party comprising besides SI Dinesh of him, W/Ct. Pooja, HC Abdul Hakim. Thereafter, at around 1:00 p.m., they all left the office, Narcotic Cell, Kotwali Darya Ganj in a government vehicle bearing no. DL 1 CM 4228 and took the route through ISBT, Kashmere Gate, Tis Hazari, Azad Market and finally, they reached at Andha Mughal, Pratap Nagar. Before leaving the office, IO/SI Dinesh collected the IO bag, field testing kit and electronic weighing machine. They reached at Gali No.6, Service Road, Andha Mughal, Pratap Nagar at around 1:45 pm. The said government vehicle was being driven by HC Abdul Hakim and it was made to park at a distance of 25 meters away from the spot near Pratap Nagar Metro FIR No.98/2014 State v. Nisha etc. page no.16 Station. On the way to the spot at ISBT, Kashmere Gate, SI Dinesh asked 4-5 persons to join the investigation but none of them agreed and left without disclosing their names and addresses. Thereafter, they all took position around Gali no.6, Andha Mughal, Pratap Nagar maintaining a distance of around 10 meters away from each other, however, SI Dinesh took the position alongwith the secret informer. At around 1:55 p.m., one lady was spotted coming from Gali No.6, Andha Mughal, Pratap Nagar. The secret informer pointed out towards the said lady as Nisha and thereafter, the secret informer left the spot. The said lady came and stood on the Service Road, near Gali No.6 and started waiting for someone. Thereafter, for 2-3 minutes, she stood there and then started to move but she was surrounded by all of them after SI Dinesh signaled to them.
(v) That SI Dinesh introduced himself and other members of their raiding party to Nisha. SI Dinesh called for the government vehicle at the spot and HC Abdul Hakim brought the government vehicle near by. Thereafter, SI Dinesh told accused Nisha that he has got secret information and he suspected her to be carrying heroin and for the purposes, her search is to be taken and before she could be searched, she can take search of the members of the raiding party and the government vehicle also. She was also apprised by SI Dinesh about her legal right that she can be subjected to search in the presence of the Gazetted Officer or Magistrate and if she so desired, the Gazetted Officer or Magistrate would be called at the spot. IO/SI Dinesh served upon accused Nisha, the notice u/s 50 NDPS Act already Ex. PW6/B and carbon copy of the same was handed over to her. Accused Nisha refused to get her search conducted in the presence of a Government Officer or Magistrate and she also refused to take the search of the FIR No.98/2014 State v. Nisha etc. page no.17 members of the raiding party and the vehicle before she could be searched. IO/SI Dinesh recorded her refusal on the original of said notice vide reply already Ex. PW6/C bearing his signatures at point X on the original notice already Ex. PW6/B bearing his signatures at point X. SI Dinesh then instructed W/Ct. Pooja to take Nisha in the vehicle and get her search conducted. W/Ct. Pooja took her aside in the vehicle and he alongwith IO stood outside the vehicle. Lady Ct. Pooja came out from the vehicle with accused Nisha and she told that black colour polythene was recovered from the left hand of accused Nisha. She produced the said black colour polythene to IO / SI Dinesh and SI Dinesh found that the said polythene was containing another polythene and it was having some matiala coloured powder. SI Dinesh took out some quantity from the same and tested it on the field testing kit and it was tested to be Heroin. Thereafter, IO weighed the said Heroin alongwith the polythene in which it was contained and its total weight came out to be 105 grams. IO/SI Dinesh took out two samples each of 5 grams from the said 105 grams of Heroin and the said two samples were put in two separate plastic pouches and thereafter, said plastic pouches were converted in two separate pullandas and were given Mark A and B. The remaining matiala coloured powder tested to be Heroin was put in the same transparent polythene and it was in turn, put in the black coloured polythene and converted into a cloth parcel and it was given Mark C. SI Dinesh affixed the seal bearing impression 3 APSNBDELHI on all the said three parcels and impression of the said seal was affixed on the said FSL form. Before filling up the FSL form, IO seized all the said three pullandas vide seizure memo already Ex. PW6/D bearing his signature at point X. Thereafter, SI Dinesh prepared the rukka already Ex. PW6/F and delivered the same to him to be FIR No.98/2014 State v. Nisha etc. page no.18 taken to PS Crime Branch Malviya Nagar. He also delivered all the said three pullandas, the FSL form and the carbon copy of the said seizure memo with the instruction to deliver the rukka to the then Duty Officer and to present the said items to then SHO.
(vi) That thereafter, he alongwith HC Abdul Hakim left in the same government vehicle to PS Crime Branch, Malviya Nagar and after reaching at PS Crime Branch, Malviya Nagar, he handed over the rukka to then Duty Officer and presented the sealed parcels, FSL form and the carbon copy of seizure memo to then SHO Inspector Manjeet Tomar who affixed the seal of MT on all said three pullandas and on the FSL form. Inspector Manjeet Tomar called for register No.19 from the then MHC (M) HC Jag Narain and he made entry in register no.19 regarding the deposit of all the said three parcels alongwith the copies of seizure memo. Thereafter, PW11 obtained the copy of the present FIR, certificate u/s 65B of Evidence Act and rukka from PS Crime Branch, Malviya Nagar and brought the same to Narcotic Cell Kotwali Darya Ganj and handed over the same to SI Rajni Kant, the Second IO as he had been instructed by the then Duty Officer to hand over the same to SI Rajni Kant. That his statement was recorded by SI Rajni Kant. He identified the accused Maya and the case property.
7. Inspector Manjeet Tomar before whom the case property is produced in compliance of section 55 of the Act, is examined as PW10 and has deposed that on 19.09.2014, when he was serving as SHO, PS Crime Branch, at about 5:15 PM, Ct. Ram Dass came to his office and produced before him three sealed parcels lying sealed with the seal of 3 APS NB DELHI, Form FSL bearing impression of the aforesaid seal and carbon copy of the one seizure memo pertaining to FIR No.98/2014 State v. Nisha etc. page no.19 this case. That he affixed his seal bearing impression MT on all the three sealed parcels and also affixed its impression on the form FSL. He collected from the duty officer FIR number of this case and noted down the same on all the three parcels, Form FSL and carbon copy of seizure memo. He also put his signatures on all the three sealed parcels, Form FSL and carbon copy of seizure memo. Then he called MHC (M) HC Jag Narain and handed over to him all these items for deposit in the Malkhana. The MHC (M) recorded entry in this regard in register no.19, and he counter-signed the said entry Ex. PW5/A in register no.19.
(i) PW-5 HC Jag Narain produced the original register no.19 and 21 for the relevant period and deposed that on 19.09.2014, he was posted as MHC (M) in PS Crime Branch, Malviya Nagar, and on that day, at about 5 or 5.30 PM, Insp. Manjeet Tomar, SHO PS Crime Branch, called him in his office alongwith Register no.19 and accordingly, he went to his room with the register, and handed over to him three sealed pullandas which were bearing Mark A, B and C sealed with the seal of 3APSNB DELHI & MT on each of the parcels and also handed over to him one FSL Form bearing the same specimen seal and one carbon copy of seizure memo. That he made entry at sl. no.2208 which is Ex. PW-5/A, which was signed by SHO/Inspector at point A. PW5 further deposed that on the same day, SI Rajni Kant Sharma deposited personal search articles of Nisha, accused in this case and he recorded entry in this regard at sl. no.2209, copy of the Same is Ex. PW-5/B. That on 22.09.2014, he sent one sample parcel bearing Mark A and FSL Form through Ct. Sunny to FSL Rohini vide RC No.312/21/14. At that time, parcel was lying duly sealed with the FSL Form which was also bearing specimen seal impression, copy of RC is FIR No.98/2014 State v. Nisha etc. page no.20 Ex. PW-5/C (OSR) and signature of Ct. Sunny appear on the same at point B. That regarding sending of the sample, he made an endorsement on the register no.19 against main entry which is Ex. PW- 5/C1 which is in his handwriting. That after depositing the sample parcel and FSL Form at FSL Rohini, Ct. Sunny brought one original acknowledgment receipt from there and handed over the same to him on that very day i.e. 22.09.2014. Copy of acknowledgment receipt is now Ex. PW-5/C2. That on 28.11.2014, FSL result was received regarding which he made endorsement in register no.19, copy whereof is Ex. PW-5/D. He handed over the result to the IO. That so long as the case property remained with him, the same was not tampered with.
(ii) PW-1 Ct. Shani deposed that on 22.09.2014, at the direction of SI Rajni Kant, he reached at PS Crime Branch and he collected one sealed parcel with the seal of 3APSNB DELHI and MT duly marked A, FSL form duly sealed with both the seals and copy of RC no.312/21 from MHC (M) HC Jag Narain and he deposited the same at FSL Rohini. He gave acknowledgment to MHC (M). That neither any tempering was done nor the same was permitted to be done by anybody else with the said exhibits during the period said exhibits remained with him.
(iii) PW-2 ASI Jai Prakash is the duty officer who got the FIR registered and stated that on 19.09.14, he was working as Duty Officer from 8 am to 8 pm. On that day, at about 5:10 PM, Ct. Ram Dass came to PS Crime Branch alongwith original rukka sent by SI Dinesh Kumar. He got the present FIR No.98/14 registered through computer operator. Computerized copy of FIR is Ex. PW-2/A signed by him at point A. He made endorsement on the original rukka. Same is Ex. PW2/B. Thereafter, he handed over the copy of FIR No.98/14 alongwith original FIR No.98/2014 State v. Nisha etc. page no.21 tehrir to Ct. Ram Dass to hand over the same to SI Rajni Kant for further investigation. He further deposed that on the same date and time, he also made Kayami entry vide DD No.23 for registration of FIR. Same is Ex.PW2/C (OSR). He also made Bandi entry vide DD no.26 at about 7 p.m. in respect to completion of registration of FIR. Copy of the same is Ex. PW2/D.
(iv) PW-3 HC Satyawan was the Duty Officer in Narcotics Cell and has stated that on 19.09.2014, at about 5.15, he received an information from Ct. Ram Das that he had taken one rukka to Crime Branch, given to him by SI Dinesh Kumar and that he got case registered at PS Crime Branch vide FIR No.98/14 and also that the investigation had been assigned to SI Rajni Kant. He recorded this information vide DD No.28. That copy of DD entry was sent to SI Rajni Kant for further necessary action. He produced the original DD register in this regard and tendered copy of DD entry no.28 as Ex. PW3/A.
(v) PW-9 Inspector Rajni Kant is the investigating officer assigned to the case after registration of FIR and has deposed that on 19.09.2014, he was serving as SI at Narcotics Cell, Kotwali and on that day at about 5:15 pm, Duty Officer HC Satyawan handed over to him copy of DD No.28 dated 19.09.2014 Narcotics Cell, attested copy of the said DD is Ex. PW9/A, and in pursuance of the said DD, the investigation of this case was assigned to him. Accordingly, he departed from his office to the spot i.e. near Gali No.6, Andha Mughal, Pratap Nagar, Delhi, vide departure entry, DD No.9, attested copy of said DD is Ex. PW9/B. That at the spot, SI Dinesh and Lady Ct. Pooja met him and they produced one lady whose name was revealed after inquiry as Nisha. That SI Dinesh also handed over to him one original notice under Section 50 of the Act in the name of accused Nisha and FIR No.98/2014 State v. Nisha etc. page no.22 the seizure memo in original of heroin weighing 105 grams. He prepared site plan at the instance of SI Dinesh vide Ex. PW6/F. He made inquiry from accused Nisha and then, he arrested her in this case at about 6:15 pm. The arrest memo of Nisha accused is Ex. PW6/H. He also obtained signature of Nisha on the same at point C. The personal search of accused Nisha was also got conducted through Lady Ct. Pooja. On the personal search of accused Nisha, one carbon copy of notice under Section 50 of the Act and Rs.250/- in cash were recovered, vide personal search memo Ex. PW8/A. He interrogated accused Nisha and recorded her disclosure statement. During the interrogation, accused Nisha disclosed the source of contraband and told that she used to collect contraband from one Maya and supply in the field. The disclosure statement of accused Nisha is Ex. PW9/C. He obtained signatures of accused Nisha on the same at point B. That at about 6:45 pm, they left the spot and proceeded to PS Crime Branch, Malviya Nagar and reached there at about 7:45 pm. He collected the copy of FIR from Duty Officer, and deposited the articles of personal search in the Malkhana. He recorded the statement of SHO Inspector Manjeet Tomar and MHC (M) HC Jag Narain. At about 8:30 pm, they left the Police Station Malviya Nagar and at about 9:30 pm, they reached at Narcotic Cell, Kotwali. He made arrival entry in the office vide DD No.31, Attested copy of which is Ex. PW9/D. Accused Nisha was produced before Inspector Akash Rawat in the office. The Inspector made inquiries from the accused and found her arrest justified. He recorded statements of Inspector Akash Rawat, SI Dinesh, lady Ct. Pooja and Ct. Ram Dass. In the office, Ct. Ram Dass delivered to him the copy of FIR at the instance of SI Dinesh.
(vi) That on the next date, 20.09.2014, accused Nisha led him and FIR No.98/2014 State v. Nisha etc. page no.23
the other staff to the house of Maya in the area of Andha Mughal and there she pointed out the house of Maya accused. The pointing out memo of the said house was prepared at the pointing out of accused Nisha vide Ex. PW9/E bearing his signature at point A and signatures of Nisha at point B. Thereafter, accused Nisha was produced before learned Magistrate. She was remanded to judicial custody. He prepared report under Section 57 of the Act and it was sent to ACP through Inspector Akash Rawat. Carbon copy of the said letter is Ex. PW4/E bearing his signature at point A. That on 22.09.2014, the exhibits of this case were got sent to FSL through Ct. Shani and he recorded statement of MHC (M) and Ct. Shani in this regard. He searched for Maya, the supplier, but she absconded and therefore, he obtained non-bailable warrants against her. That on 19.02.2015 accused Maya surrendered before the Court. After obtaining permission from the Court, he formally arrested accused Maya vide Arrest memo Ex. PW9/F which bears his signature at point A and her personal search memo Ex. PW9/G which bears his signatures at point A. He recorded disclosure statement of accused Maya which is Mark PW9/A which bears his signature at point A. In pursuance of said disclosure statement, he took accused Maya to her house but nothing incriminating could be recovered. He prepared memo in this regard which is PW9/H which bears his signatures at point A. The accused Maya was produced before Inspector Akash Rawat in his office. He prepared report under Section 57 of the Act in respect of arrest of accused Maya. The carbon copy of same is Ex. PW4/G bearing his signatures at point A. Accused Maya was produced in the Court and she was remanded to judicial custody. He collected FSL result in respect of the contraband recovered from accused Nisha. Report was FIR No.98/2014 State v. Nisha etc. page no.24 prepared by Sh. Amit Rawat, Sr. Scientific Officer (Chemistry), FSL, Delhi 17.11.2014 and the same is Ex. PA. On completion of investigation, he prepared chargesheet and put the same in the Court. He identified the accused and carbon copy of notice, in the court file, recovered from accused Nisha during her personal search as Ex. PW8/B.
(vii) PW12 ASI Amla Merry is a witness to the arrest of accused Maya and deposed that on 19.02.2015, while posted in Crime Branch, Narcotics Cell, Kotwali, Delhi as Head Constable, she was participating in the investigation of the present case FIR alongwith IO / SI Rajni Kant and Ct. Sunny and that on that day, during course of investigation, she alongwith IO and Ct. Sunny reached at Tis Hazari Court, and in the concerned court, where accused Maya had already made surrender before the Ld. Concerned Court. Then, IO interrogated accused Maya after prior permission of the Ld. Concerned Court. Thereafter, IO arrested accused Maya Devi with her help vide arrest memo which is already Ex. PW9/F bearing her signature at point B. On the direction of the IO, she carried out personal search of accused Maya inside lady toilet keeping in view of her modesty vide personal search memo already Ex. PW9/G bearing her signatures at point B but nothing was recovered from her possession. IO recorded disclosure statement of accused Maya vide memo already Ex. PW9/A bearing her signature at point B. Then, IO got one day, PC remand of accused Maya to trace out the source of already recovered contraband. During PC remand, accused Maya led them at her house and after search of her house, nothing could be recovered from her house. During PC remand, she got accused Maya medically examined, accused Maya remained in her custody and was also produced before Inspector Akash Rawat, FIR No.98/2014 State v. Nisha etc. page no.25 Narcotics Cell, who made enquiries from accused Maya. Supplementary disclosure statement of accused Maya is Ex. PW-12/A, with her signatures at point A.
9. RECOVERY FROM ACCUSED NISHA From such conspectus of the evidence lead, oral and documentary, as traversed above, that the prosecution essays to establish that accused Nisha was found in possession of 105 gms of heroin supplied to her by accused Maya.
(i) Seizure memo EX.PW6/B, DD No.20 dated 19.9.2014, documents the recovery of heroin by SI Dinesh Kumar, witnessed by W/Ct. Pooja and Ct.Ram Dass, in consonance with the oral account along the lines that on the corner of service road, gali no.6, Andha Mughal Partap Nagar, cursory search of accused Nisha was taken by W/Ct. Pooja with due regard to her modesty and decency inside the Government vehicle, and a black color heavy polythene which accused Nisha was holding in her left hand was produced before SI Dinesh Kumar by W/Ct. Pooja, the recovered black color polythene was checked for its contents and it was found containing one heavy transparent polythene with its mouth tied with rubber band with matiala colour powder in it, the said polythene was opened, powder was checked on the field testing kit and was found to be heroin. The recovered heroin was weighed with the transparent polythene that it was found in on electronic weighing machine and was found to weigh 105 gms, five- five grams were taken from the recovered heroin and kept in separate small transparent polythene pouches mouth of which were secured with rubber band and converted into cloth pullandas given Mark A and B and the remaining 95 gms heroin was left in the transparent FIR No.98/2014 State v. Nisha etc. page no.26 polythene that it was found in and returned to the black color polythene that it was kept in, the mouth of the black color polythene was secured with rubber band and was converted into a separate cloth pullanda given Mark C. FSL Form was filled up in respect of the recovered heroin. All the pullandas were sealed with one-one seal each of 3APSNBDELHI as well as the FSL Form, seal after use was handed over to W/Ct. Pooja no.8588/PCR.
(ii) Ct. Ram Dass had produced the case property seized vide EX.PW6/B before Inspector Manjeet Tomar, PW10, who affixed his seal of MT on the pullandas and FSL Form and mentioned the case FIR details, which details were endorsed on the copy of the seizure memo also, case property was deposited in the malkhana against entry at serial no.2208, EX.PW5/A, that catalogues the deposit of three pullandas Mark A,B and C sealed with the seal of APSNB DELHI and MT, by Inspector Manjeet Tomar in case FIR no.98/14 on 19.9.2014, and carbon copy of seizure memo drawn by SI Dinesh Kumar. Pullanda Mark A was sent to FSL alongwith FSL Form for examination through Ct. Sunny No.1898/Cr, as per note EX.PW5/C1, vide RC No. 3/2//21 dated 22.9.2014, and FSL Result was received on 28.11.2014 as per note EX.PW5/D against entry EX.PW5/A. RC No. 3/2/21/14 dated 22.9.2014 is Ex.PW5/C, and acknowledgement from FSL of case acceptance in case FIR 98/14 is EX.PW5/C2. Parcel A received in case FIR No.98/14, at FSL on 22.9.2014, from SHO/Crime Branch, as per FSL Result dated 17.11.2014 EX.PA, is documented to be sealed with seal of P.S./N.B.3ADELHI and MT, and is found containing brown color coarse powdery material, weighing 5.70 gms with polythene and rubber band, which on chemical analysis TLC, GC & GC-MS Examination from 20.20.2014 to 17.11.2014, is found to contain, Diacetylmorphine, FIR No.98/2014 State v. Nisha etc. page no.27 caffeine, Acetaminophen, Alprazolam, Morphine, Codiene, Acetlycodiene and 6-Monoacetlymorphine, with Diacytlmorophine 6.5% and caffeine 21.6%, the remnants were sealed with the seal of ARFSLDELHI.
(iii) The documentary record is congruent to the testimonies of the witnesses, except for one minor glitch. There is one odd discordant circumstance to be noted, the prosecution examined Ct. Shani towards link evidence as the constable who had taken the sample parcel Mark A with the FSL form to the FSL, as PW1, while under Ex.PW5/C to C2, ie the Road certificate vide which the sample is transported for deposit, the note against entry no.2208, EX.PW5/A, in the malkhana register in respect of deposit of sending of sample parcel to FSL and then the note pertaining to receipt of the FSL Result, all record the name of the official so entrusted with the task as Ct. Sunny, not Ct. Shani. This differential in the name however is ruled out as a suspicious circumstance and a break in the chain of custody of the sample parcel for the reason that the Constable number of CT. Shani and Ct. Sunny are the same, ie 1898/CR., the signatures appearing on the RC, the acknowledgement and then the deposition recorded of PW1 in Court all are one and the same. It would reflect thereby that Ct. Sunny and Ct. Shani are infact two names of the same person.
(iv) Case property is produced for the first time in Court on 23.5.2017 for the identification of PW8, W/Ct. Pooja, parcel Mark B, Ex.P1, parcel Mark C ie Ex.P2, both parcels are found sealed with the seal of 3APSNBDELHI and MT, with case particulars thereon, while parcel Mark A, EX.P3, is in an envelope sealed with the seal of FSL. The contents of parcel Mark C EX.P2 are described in the course of examination of PW11 as matiala color powdery substance contained in FIR No.98/2014 State v. Nisha etc. page no.28 transparent polythene inside a black color polythene in accordance with the contents of the seizure memo. The record from the deposit of the case property in the malkhana, the forwarding of sample parcel for FSL examination, to its production in Court, is impeccable, it is however the recovery proceedings themselves that are carried out by the raiding team headed by SI Dinesh that fail to withstand judicial scrutiny, and fall short of the mandate of law on the scrupulous adherence to the procedural safeguards enshrined.
10. The recovery is shown from a black color polythene that the accused was carrying in her left hand, which black color polythene is recovered in the cursory search of the person of the accused carried out by W/Ct. Pooja. As has been the ocular account of the three recovery witnesses, the accused was sighted as approaching from street no.6 at about 1.55 pm, she came and stood at the corner and was identified by the secret informer, she kept waiting for 4-5 minutes and is intercepted by the raiding team when she was about to leave, she is informed of her rights, her legal rights are explained to her, notice under section 50 is prepared and copy is delivered to her, her reply is recorded, she signs the original notice and the reply, and it is thereafter that her personal search is taken by Lady Constable Pooja inside the government vehicle, and when lady constable Pooja came out of the government vehicle with the accused she was holding a black color polythene which as told by Lady Ct. Pooa was recovered from the left hand of accused Nisha.
(i) What is unfathomable is that this black color polythene escaped detection during this entire period that the accused is sighted, apprehended, notice is served on her. None of the recovery witnesses FIR No.98/2014 State v. Nisha etc. page no.29 deposed that when the accused was seen coming from the street no.6, she was carrying a black color polythene in her hand, none of the recovery witnesses noticed any black color polythene in the hand of the accused while she was standing there in plain sight at 1.55 pm, in broad daylight, when she is apprehended, her rights were explained to her, carbon copy of notice under section 50 of the Act was delivered to her, nor when she is taken inside the vehicle, but when Lady Constable Pooja with the accused emerged out of the vehicle lo and behold a black color polythene appears, why could it not be noticed by the other members of the raiding team when it was in the hands of the accused in plain sight remains an unsolved mystery.
(ii) No black color polythene is seen in the hands of the accused by SI Dinesh the empowered officer or Ct. Ram Dass, when the accused is first sighted and is then apprehended she is not seen carrying any black color polythene in her left hand by any member of the raiding team. The black color polythene with heavy substance in it is discovered by Lady Ct. Pooja in the personal search of the accused conducted inside the government vehicle. As is in the testimony of PW6, SI Dinesh Kumar, Ct. Pooja told him that the polythene was recovered from the left hand of the accused. Ct. Pooja when examined as PW8 on the manner in which the black color polythene came to be discovered deposed as follows:
"I conducted personal search of the accused in government vehicle. Nisha accused was carrying a polythene in her left hand. The said polythene was carrying some substance heavy in weight."
(iii) There is a perplexing ambiguity in the manner of recovery of this black color polythene. Ct. Pooja has not stated that the polythene was being concealed by the accused in the palm of her left hand, which FIR No.98/2014 State v. Nisha etc. page no.30 came to notice only when her personal search was taken and when she asked the accused to open her fist then she had discovered a black color polythene with heavy substance. By carrying if it is to be understood that it was being held by the accused in her left hand, the polythene could not have been hanging from her left hand, for thus has not surfaced in the deposition of the empowered officer, PW6, or for that matter of PW11,Ct. Ram Dass, another member on the team. It could only be conjectured that the accused must have been concealing the black polythene in the palm of her left hand in a tight fist so as to evade detection during the entire period that she was with the members of the raiding team when her rights were being explained to her, for if the same was being carried in the left hand by the accused, without any attempt to conceal it in her palm in a fist, then the only inference arising from the failure of SI Dinesh to have seen the accused carrying a black color polythene in her hand when she is apprehended is that the accused was not carrying any black polythene in her hand when she is apprehended, and that the same has been planted upon her later. I am afraid that even if the left hand was tight fisted hiding and concealing something, during this entire period that the accused remained at the spot while she is read over her rights and is delivered the notice under section 50 of the Act, it could still not have remained unperceived by SI Dinesh that the accused is hiding something under a tight fist of the left hand.
(iv) In any case it was incumbent upon Lady Ct. Pooja to have described the manner in which the polythene was being carried in the left hand by the accused so that it could be discovered in the personal search of the accused alone and could have escaped the attention of any reasonable man unless a personal search was effected in such FIR No.98/2014 State v. Nisha etc. page no.31 circumstances. If the accused successfully managed to keep the black polythene with heavy substance hidden from plain sight, the manner of recovery should have laid bare the specifics of it such facts from which it could be discerned as to how and why the polythene containing 105 gms. of substance could have escaped the observation of the trained eyes of the empowered officer, SI Dinesh. From such skeletal exposition that the accused was carrying it in her left hand, there is no such circumstance revealed explaining sufficiently and plausibly as to why and how the black color polythene being carried by the accused in her left hand remained undetected by the empowered officer SI Dinesh Kumar. There is complete opaqueness on such material an aspect impairing the prosecutions case.
(v) SI Dinesh Kumar as PW6 testified that he had weighed the recovered substance with both the polythenes, which is not in absolute agreement with the contents of the Seizure memo whereunder it is chronicled that the recovered substance when weighed with the transparent polythene that it was recovered in was found to be 105 gms, and that when the pullanda of the residue of the substance Mark C, was prepared, after extracting 5-5 gms towards sample pullandas Mark A and B, the substance in the transparent polythene with the transparent polythene was returned to the black color polythene that it was found in. W/Ct. Pooja has not shed any light on the aspect. PW11 Ct. Ram Dass the other recovery witness, however has deposed as per the contents of the seizure memo, and pullanda Mark C when produced in Court is found containing matiala color powder inside transparent polythene kept in a black color polythene. This discrepancy in itself is not of such proportions as to render the recovery doubtful, it may have been an insignificant memory lapse, it is only if the weight of FIR No.98/2014 State v. Nisha etc. page no.32 the recovered contraband alleged against the accused could be said to have been materially altered that it could have had any manner of ramifications on the case of the prosecution. It is primarily on account of the infirmity in the prosecution's case that the black color polythene was not detected in the hand of the accused by any of the members of the raiding team and the obscurity surrounding its recovery from the left hand of accused Nisha by W/Ct. Pooja, that the recovery becomes suspect.
(vi) The manner of recovery is of utmost significant in any prosecution for contravention of the provisions of the Act premised on the accusation of conscious possession, it has the propensity to change the entire color of the case of the prosecution, for if the recovery is from a black color polythene which the accused is sighted as holding in her hands, the procedural safeguard enshrined under section 50 of the Act, would stricto senso not come into play as has been the ratio emerging from the recent line of judicial pronouncements rendered by H'ble the Apex Court. It would in such eventuality be the search of the polythene that the accused is seen carrying in her left hand that lead to the recovery of the contraband and not the search of the person of the accused. However if the black color polythene was held in a fist in the palm of the left hand and is recovered in the search of the person of the accused then the mandate of the stipulation under section 50 of the Act comes into play with full force. Section 50 of the NDPS Act lays down as follows:
"50. Conditions under which search of persons shall be conducted-
(1) When an officer duly authorized under Section 42 is about to search any person under the provisions of Section 41, section 42 or section 43, he shall, if such so requires, take such person FIR No.98/2014 State v. Nisha etc. page no.33 without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate.
(2) If such requisition is made, the office may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1).
(3) The Gazetted Officer or the Magistrate before whom any such person be brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.
(4) No female shall be searched by anyone excepting a female.
(5) When an officer duly authorized under Section 42 has reason to believe that it is no possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under Section 100 of the Code of Criminal procedure 1973 (2 of 1974).
(6) After a search is conducted under sub-
Section (5) the office shall record the reasons for such belief which necessitated such search and within seventy two hours send a copy thereof to his immediate official superior."
(vii) In respect of recoveries effected form search of bags thailas and any other article being carried in any manner by an accused, Hon'ble the Supreme Court in State of Himachal Pradesh v. Pawan Kumar (2005) 4 SCC 350 held as follows:-
"10. A bag, briefcase or any such articles or container, etc. can, under no circumstances, be treated as body of a human being. They are given a separate name and are identifiable as such. They cannot even remotely be treated to FIR No.98/2014 State v. Nisha etc. page no.34 be part of the body of a human being.
Depending upon the physical capacity of a person, he may carry any number of items like a bag, a briefcase, a suitcase, a tin box, a thiala, a johla, a gathri, a holdall, a carton, etc. of varying size, dimension or weight. However, while carrying or moving along with them, some extra efforts or energy would be required. They would have to be carried either by the hand or hung on the shoulder or back or placed on the head. In common parlance it would be said that a person is carrying a particular article, specifying the manner in which it was carried like hand, shoulder, back or head, etc. Therefore, it is not possible to include these articles within the ambit of the word "person" occurring in Section 50 of the Act."
(viii) Subsequently Hon'ble the Apex Court in Dilip v. State of M.P., (2007) 1 SCC 450 made the provision applicable to cases of recovery from a bag or any other article if the personal search of the accused had also been effected in the course of the recovery proceedings while holding as under:
"16. In this case, the provisions of Section 50 might not have been required to be complied with so far as the search of scooter is concerned, but, keeping in view the fact that the person of the appellants was also searched, it was obligatory on the part of PW 10 to comply with the said provisions. It was not done.'' More recently, however, in State of Punjab v. Baljinder Singh, (2019) 10 SCC 473 : (2020) 1 SCC (Cri) 22 : 2019 SCC OnLine SC 1408 on 15.10.2019 a Full Bench of H'ble the Supreme Court held that Dilip Singh is not good law and laid down as follows:
13. The law is thus well settled that an illicit article seized from the person during personal search FIR No.98/2014 State v. Nisha etc. page no.35 conducted in violation of the safeguards provided in Section 50 of the Act cannot by itself be used as admissible evidence of proof of unlawful possession of contraband. But the question is, if there be any other material or article recovered during the investigation, would the infraction with respect to personal search also affect the qualitative value of the other material circumstance?
.....................................
15. As regards applicability of the requirements under Section 50 of the Act is concerned, it is well settled that the mandate of Section 50 of the Act is confined to "personal search" and not to search of a vehicle or a container or premises. .....................................
18. The decision of this Court in Dilip case [Dilip v. State of M.P., (2007) 1 SCC 450 :
(2007) 1 SCC (Cri) 377] , however, has not adverted to the distinction as discussed hereinabove and proceeded to confer advantage upon the accused even in respect of recovery from the vehicle, on the ground that the requirements of Section 50 relating to personal search were not complied with. In our view, the decision of this Court in the said judgment in Dilip case [Dilip v. State of M.P., (2007) 1 SCC 450 :
(2007) 1 SCC (Cri) 377] is not correct and is opposed to the law laid down by this Court in Baldev Singh [State of Punjab v. Baldev Singh, (1999) 6 SCC 172 : 1999 SCC (Cri) 1080] and other judgments."
(ix) The same view was further affirmed in Than Kunwar v. State of Haryana, (2020) 5 SCC 260 and reiterated in Rajesh Dhiman v. State of H.P., (2020) 10 SCC 740 again by a constitutional Bench as follows:
"22. The appellants' claim that the High Court erred in not considering non-compliance with Section 50 of the NDPS Act at the stage of appeal, is also premised upon a mistaken understanding of the law. As held in State of FIR No.98/2014 State v. Nisha etc. page no.36 H.P. v. Pawan Kumar [State of H.P. v. Pawan Kumar, (2005) 4 SCC 350 : 2005 SCC (Cri) 943] , the safeguards for search of a person would not extend to his bag or other article being carried by him. Given how the narcotics have been discovered from a backpack, as per both the prosecution and defence versions, there arises no need to examine compliance with Section 50 of the NDPS Act.''
(x) However on the aspect of personal search and the mandatory nature of compliance required under section 50 of the Act it has been emphasized by H'ble the Supreme Court in Arif Khan @ Agha Khan v. State of Uttarakhand, Criminal Appeal No.273 of 2007, decided on 27.04.2018 while relying upon VijaysinghChandubha's case (Vijaysinh Chandubha Jadeja v. State of Gujarat (2011) 1 SCC 609) as under:
"28. First, it is an admitted fact emerging from the record of the case that the appellant was not produced before any Magistrate or Gazetted Officer; Second, it is also an admitted fact that due to the aforementioned first reason, the search and recovery of the contraband "Charas" was not made from the appellant in the presence of any Magistrate or Gazetted Officer; Third it is also an admitted fact that none of the police officials of the raiding party, who recovered the contraband "Charas" from him was the Gazetted Officer and nor they could be and, therefore, they were not empowered to make search and recovery from the appellant of the contraband "Charas" as provided under Section 50 of the NDPS Act except in the presence of either a Magistrate or a GazettedOfficer; Fourth, in order to make the search and recovery of the contraband articles from the body of the suspect, the search and recovery has to be in conformity with the requirements of Section 50 of the NDPS Act. It is, therefore, mandatory, for the prosecution to prove that the search and recovery was made from the FIR No.98/2014 State v. Nisha etc. page no.37 appellant in the presence of a Magistrate or a Gazetted Officer."
11. The manner of recovery is not convincingly conveyed by PW7, it is not clearly brought on record as to how the accused was carrying the black color polythene containing 105 gms of substance in her left hand in such a manner that it was not caught sight of by SI Dinesh Kumar or for that matter any other raiding team member, and came to be recovered only in the personal search effected inside the government vehicle from the left hand of the accused. It cannot decisively be determined as to what is the nature of the recovery whether the recovery is from a polythene that the accused was carrying in her hand or that the recovery is from a polythene that was being concealed in her left hand recovered in the personal search of the accused. This is a fundamental lacuna in the present prosecution that goes to the root of the matter, an incurable defect that vitiates the recovery proceedings.
(i) It being the deposition of the recovery witnesses that the black color polythene is recovered in the personal search of the accused taken inside the government vehicle by Ct. Pooja, it is required to be assessed if in the facts of the case there has been a strict compliance of the mandate of section 50 of the Act. Reverting to the testimonies of the recovery witnesses, SI Dinesh as has come in his deposition, introduced himself and other members of raiding party to accused Nisha and informed Nisha about the secret information and about her legal right of being subjected to search in presence of gazetted officer and magistrate if she so desired and that she could even subject him and other members of raiding party and government vehicle even, if so FIR No.98/2014 State v. Nisha etc. page no.38 desired. A written Notice in terms of section 50 of the Act, was also served upon her, and its carbon copy was delivered to the accused, he explained to the accused meaning of gazetted officer or magistrate. She refused to be subjected to search in presence of gazetted officer or magistrate or even to conduct search of the government vehicle and personal search of members of raiding party, as accused Nisha had disclosed that she is illiterate, on her asking, SI Dinesh recorded reply on her behalf as narrated by her appended to original notice as Ex.PW6/C, PW11 Ct. Ram Dass has deposed along same lines. It is also in the deposition of PW8 that notice u/s 50 NDPS Act was served upon Nisha and she was explained/informed by SI Dinesh that she could make statement before Gazetted Officer, and was further apprised that in case she was not inclined to get herself searched in their presence, she could make statement before Gazetted Officer. That SI Dinesh prepared notice u/s 50 of the Act with one carbon copy thereof. Carbon copy was delivered by SI Dinesh to the accused and against delivery, her signatures were obtained on the original. That before delivery of carbon copy, the contents of the notice were read over to the accused. PW8 then asserted that she had not put her signatures on the said notice, and that no reply of the accused was recorded.
(ii) While two of the recovery witnesses deposed in tandem however Ct. Pooja who has discovered the black polythene in the left hand of the accused in her personal search, however has struck a noticeably discordant note, when she outright declared that no reply of the accused was recorded, even though the situation is sought to be salvaged by the Ld. Addl PP for the State, and she came to admit her FIR No.98/2014 State v. Nisha etc. page no.39 signatures on the reply, the prosecution's case however is damaged beyond redemption considering that though PW6 admitted to her signatures on the recorded reply of the accused, nowhere did she solemnly affirm that the accused when given the option had refused to exercise her legal rights, refused for her search either rbefore a Magistrate or a Gazetted officer. Recently Hon'ble High Court of Delhi in Nabi Alam @ Abbasi v. State (NCT of Delhi) SCC Online Delhi 3055 while answering a reference pertaining to this particular procedural safeguard formulated the following question of law for reference:
"Whether even after a person accused or suspected of being in possession of narcotic drug or psychotropic substance is apprised by the empowered officer of his statutory right to be required to be searched before a Gazetted Officer or Magistrate, but expressly waives compliance with the said requirement and relinquishes his stipulated right, is it still mandatory for the prosecution to conduct his search only before a Gazetted Officer or Magistrate?"
After examining and surveying the law as it has evolved along the several judicial pronouncements on the aspect including Vijay Chanduba Jadeja's case (supra) and Arif Khan's case (supra) has answered the above question of law as follows:-
"26. For the sake of clarity it is held that, axiomatically, there is no requirement to conduct the search of the person, suspected to be in possession of a narcotic drug or a psychotropic substance, only in the presence of a Gazetted Officer or Magistrate, if the person proposed to be searched, after being apprised by the empowered officer of his right under Section 50 of the NDPS Act to be searched before a Gazetted Officer or Magistrate categorically waives such right by FIR No.98/2014 State v. Nisha etc. page no.40 electing to be searched by the empowered officer. The words "if such person so requires", as used in Section 50(1) of the NDPS Act would be rendered otiose, if the person proposed to be searched would still be required to be searched only before a Gazetted Officer or Magistrate, despite having expressly waived "such requisition", as mentioned in the opening sentence of sub-Section (2) of Section 50 of the NDPS Act. In other words, the person to be searched is mandatorily required to be taken by the empowered officer, for the conduct of the proposed search before a Gazetted Officer or Magistrate, only "if he so requires", upon being informed of the existence of his right to be searched before a Gazetted Officer or Magistrate and not if he waives his right to be so searched voluntarily, and chooses not to exercise the right provided to him under Section 50 of the NDPS Act."
(iii) The due compliance of section 50 of the Act is not proved in the case at hand, for neither the written notice nor the reply recorded is stated to have been read over and explained to the accused, by SI Dinesh, the accused having acceded that she is illiterate and the reply having been recorded by SI Dinesh, CT. Pooja who conducted the personal search of the accused has not attested to the fact that accused Nisha when explained her legal rights had refused to exercise the same, had clearly and categorically refused to get herself searched in the presence of Gazetted officer/Magistrate. That the recovery witness had proclaimed that no reply was recorded, and then failed to affirm that accused Nisha had infact refused for her search in the presence of Gazetted Officer/Magistrate renders credence to the defence of the accused that she was made to sign on blank semi filled documents. Another questionable circumstance has cropped up in the cross examination of SI Dinesh, that he knew the location of the house FIR No.98/2014 State v. Nisha etc. page no.41 of Nisha, that he had visited the house of accused Nisha before the arrival of SI Rajnikanth at about 4.30 pm alongwith Ct. Pooja, and that the house of accused Nisha was found locked. This fact was not divulged in the examination in chief, it is possible that the raiding team has not been truthful in accounting for all facts transacted at the spot. Pertinently it is the defence of the accused that she was picked up from her house compelled to sign on documents and then falsely implicated by planting the recovery on her.
(iv) Ld. Defence Counsel contended that there is clear contravention of section 50 (4) of the Act as the search of the accused has been conducted by women constable Pooja who is not an officer authorized /empowered under section 42/41 of the Act. It is so stipulated under section 50(4) of the Act that no female shall be searched by anyone excepting a female, the word empowered does not qualify the word female employed in section 50(4) of the Act, the construction sought to be advanced would call for addition of the word empowered in terms of section 41 and 42 of the Act alongside the word female used in the sub-section. S. 42 of the Act empowers the officer above the rank of peon, sepoy constable of the departments as enumerated thereunder for making search and seizure under the Act in a conveyance building or enclosed place between sunset and sunrise, which powers are available to such officers in respect of search and arrest at public places also by virtue of section 43 of the Act, but S. 50(4) of the Act insists only that such search should be by another female, even where the search is to be conducted by an empowered officer. In the case of a female offender, search by a female, sans the word empowered and absence of any specific mention of section 42/41 FIR No.98/2014 State v. Nisha etc. page no.42 of the Act in section 50(4), would suggest that it should be by a female officer or a female panch witness, regard being had to the modesty and decency of the female offender, but under the directions and supervision of the empowered officer albeit he is a male. The female officer though not empowered as in terms of section 41/42 of the Act, must be acting in accordance with the instructions of the empowered officer while making the search.
(v) With regard to the scope and ambit of S. 50(4) of the Act, following observations were made in State of Punjab v. Baldev Singh ((1999) 6 SCC 172):
"Thus, while conducting search and seizure, in addition to the safeguards provided under the Code of Criminal Procedure, the safeguards provided under the NDPS Act are also required to be followed. S. 50(4) of the NDPS Act lays down that no female shall be searched by anyone excepting a female. This provision is similar to the one contained in S. 52 of the Code of Criminal Procedure, 1898 and Section 51(2) of the Code of Criminal Procedure, 1973 relating to search of females. S. 51(2) of the Code of Criminal Procedure, 1973 lays down that whenever it is necessary to cause a female to be searched, the search shall be made by another female with strict regard to decency. The empowered officer must, therefore, act in the manner provided by S. 50(4) of the NDPS Act read with S. 51(2) of the Code of Criminal Procedure, 1973 whenever it is found necessary to cause a female to be searched. The doc prepared by the investigating officer at the spot must invariably disclose that the search was conducted in the aforesaid manner and the name of the female officer who carried out the personal search of the female concerned should also be disclosed. The personal search memo of the female concerned should indicate compliance with the aforesaid provisions. Failure to do so may not only affect the credibility of the prosecution case but may also be found as violative of the basic right of a female to be treated with decency and proper dignity".
FIR No.98/2014 State v. Nisha etc. page no.43 (vi) The H'ble Supreme Court has equated the requirements under
section 50(4) of the Act to that provided under section 51(2) of the Cr.PC, that the female offender shall be searched by a female with strict regard to decency, and not called for the necessity of attracting section 42/41 of the NDPS Act thereto. That the requirement is in every sense mandatory is emphatically established by H'ble the Supreme Cour tin State of Punjab v. Surinder Rani, (2000) 10 SCC 429
5. The said requirement in the sub-section is a mandatory and cannot be diluted even on the ground that a female was not avail- able at the time of search. In the present case PW 2 Gurdip Singh has admitted in his examination-in-chief itself that the respondent was searched by him as then no female was present. In fact he called the assistance of two female constables. PW 2 admitted that those two female constables reached on the spot only one hour after the search was made. The search is therefore vitiated.
(vii) Ld. Counsel for the accused in support of his contentions that the word female in section 50(4) has to be understood as female empowered officer has relied upon judgment of H'ble the High Court of Delhi in Mamta Vs. State fo Delhi, Bail Appln2270/2021, DOD 28.9.2021 and the relevant paragraphs relied upon are extracted below:
"9. The short issue raised in the present case is whether a female suspect is required to be searched by the female or an 'empowered/authorised' female officer.
10. Chapter V of the NDPS Act deals with procedure, Before proceeding further, I may take note of Sections 41 and 42 as well as Section 51 of the NDPS Act, 1985. In terms of Sections 41(2) and 42(1) of the NDPS Act, it is only an empowered officer or duly authorised officer, as enumerated therein, who can take actions under the provisions of the Act. Section 41(2) of the NDPS Act prescribes that it is only an empowered officer who can give the authorisation to his subordinate officer to carry out the arrest of a person or search as mentioned therein. The aforesaid Sections also provide that an authorised officer is an officer who is superior FIR No.98/2014 State v. Nisha etc. page no.44 in rank to a peon, sepoy or constable. A police constable is not an officer authorised. In fact, the aforementioned Sections specifically bar the inclusion of a constable in the ambit of 'authorised officer'.
11. Section 51 of the NDPS Act provides that the provisions of Cr.P.C. shall apply in so far as they are not inconsistent with the provisions of the NDPS Act, to all warrants issued and arrests, searches and seizures made under the Act. .................................
17. A holistic reading of Sections 41, 42 and 43 of the NDPS Act would show that only an empowered officer, being an officer superior in rank to a peon, sepoy or constable, has been authorised with power to entry, search, seizure and arrest. Even Section 50 of the NDPS Act refers to such an officer. The Supreme Court in unequivocal terms has held that the provisions of Sections 41 and 42, as regards authorization and recording of information, are mandatory in nature and only an empowered officer as enumerated in Sections 41(2) and Section 42(1) of the NDPS Act can act under the provisions thereof. Section 41(2) of the NDPS Act further provides that the empowered officer may authorise his subordinate, who in turn, has also to be superior in rank to a peon, sepoy or a constable. Section 43 of the NDPS Act too uses the expression 'officer' and provides for search of a person to be conducted by an officer or departments mentioned in Section 42. From the foregoing, it is apparent that the expression 'officer', whether empowered, authorised or subordinate, has to be necessarily read to mean a person who is above the rank of a peon, sepoy or a constable."
18. Further, the condition imposed under sub-section (4) of Section 50 of the NDPS Act is in addition to the other conditions appearing therein. It is unfathomable that a male suspect has to be searched by an empowered/authorised officer but while conducting a search on a female suspect/accused, the provision is given a complete go bye.
................................
21. In the present case, the secret information stated to be received was with respect to a female. A perusal of the material placed on record would show that it has not been stated as to why no effort was made to secure presence of a female police officer. In view of the above enunciation of law, this Court is of the prima FIR No.98/2014 State v. Nisha etc. page no.45 facie view that the search conducted by W/Ct Rekha does not appear to be in strict compliance with the mandate of Section 50(4) of the NDPS Act. For that reason, search conducted by W/Ct Rekha, even in the presence of the ACP/SHO, appears to suffer from the vice discussed above. Needless to add that whether there is strict compliance of Section 50(4) of the NDPS Act while conducting search of the applicant, is a matter of trial."
(viii) H'ble the High Court while seized of a bail application adverted to the proposition as to whether a female suspect is required to be searched by the female or an 'empowered/authorised' female officer, and formulated the prima facie view that the search conducted by Woman constable does not appear to be in strict compliance with the mandate of Section 50(4) of the NDPS Act, and has concluded with the observation that whether there is strict compliance of Section 50(4) of the NDPS Act while conducting search of the applicant, is a matter of trial. It would be pertinent to note that in the case at hand WCt. Pooja carried out the personal search of the accused inside the government vehicle while SI Dinesh and Ct. Ram Dass were present outside, with due regard to her modesty and decency, however neither SI Dinesh nor W/Ct. Pooja in their respective depositions in Court asseverated that W/Ct. Pooja was instructed by SI Dinesh to carry out the personal search of the accused inside the government vehicle, it is not stated by either of these two witnesses that W/Ct. Pooja was acting on the directions and as per the instructions and under the observation of the empowered officer. The personal search is taken inside the government vehicle put the presence and position of the driver of the government vehicle Abdul Hamid is not accounted for by any of the FIR No.98/2014 State v. Nisha etc. page no.46 recovery witnesses. It has emerged in the cross examination of PW11, which impugns the recovery even further, that till the time that Ct. Ram Dass remained at the spot, Ct. Abdul Hamid remained inside the government vehicle, implying thereby that when the personal search of accused Nisha was taken by Ct. Pooja inside the Government vehicle Ct. Abdul Hmaid was present inside the government vehicle which brings us back to the lack of clarity and palpable abstruseness in the case of the prosecution on the aspect of the recovery.
(ix) The manner of recovery is not confidently clearly and cogently set forth. This has been the overriding peculiar circumstance of this case that the black color polythene which was found containing 105 gms. of heroin is recovered from the left hand of the accused in the personal search of the accused and none of the recovery witnesses including the empowered officer had seen the accused carrying a black color polythene in her left hand, or hiding /concealing something in her left hand. It is discovered by W/Ct. Pooja for the first time when she was present with the accused inside the government vehicle that accused is carrying a black color polythene with some heavy substance inside in her left hand. Such unexplained circumstances therefore would warrant that the compliance of section 50 of the Act in accordance with the mandate of H'ble the Apex Court in Arif Khan, and compliance of section 50(4) as per the observation of H'ble the High Court of Delhi made in Mamta's case, was desirable.
(x) The manner of recovery remained shrouded in mystery, it has gone unexplained as to how and why the black polythene being FIR No.98/2014 State v. Nisha etc. page no.47 carried by the accused in her left hand that was found containing 105 gms of heroin was not noticed by the three recovery witnesses including the empowered officer SI Dinesh, and is discovered by WCt. Pooja only in the personal search of the accused inside the government vehicle, this lacuna leads to the possibility of recovery proceedings being tainted and recovery having been planted, and this incurable defect impairs the prosecution by vitiating the recovery proceedings. There is nothing incriminating alleged against accused Maya, with the recovery alleged against accused Nisha discredited, the prosecution against accused Maya has no legs to stand on.
12. CONCLUSION As a consequence of the discussion above and for the reasons aforestated, it is concluded in favour of the accused that the prosecution has failed to prove beyond reasonable doubt that on 19.9.2014 at 2.pm at service road Gali no.6 Andha mughal Partap Nagar, 105 gms of heroin was recovered from a black color polythene carried by accused Nisha in her left hand detected in the personal search of accused Nisha, and accordingly accused Nisha while extending her the benefit of doubt is acquitted of the charge under section 21 of the Act, while no case is made out, there is no incriminating material against accused Maya, and accordingly both accused Nisha and accused Maya stand acquitted of the charge under section 29 of the Act read with section 21, NDPS Act.
13. Bail bonds are canceled. Sureties are discharged. Original documents of sureties, if any, available on record be returned.
FIR No.98/2014 State v. Nisha etc. page no.48 Endorsement on documents, if any, be cancelled. Case property be disposed of in accordance with section 52A of the /Act. The SHO concerned shall file compliance report of the disposal of the case property in accordance with section 52A of the Act, within 45 days from today. File be consigned to record room.
Announced in the open Court On 28th day of April, 2022 (NeeloferAbidaPerveen) Special Judge-02 : (Central) Tis Hazari Court:Delhi FIR No.98/2014 State v. Nisha etc. page no.49