Delhi District Court
Arif Khan @ Agha Khan vs . State Of Uttrakhand Decided On ... on 5 January, 2019
IN THE COURT OF SURESH KUMAR GUPTA
ADDITIONAL SESSIONS JUDGE04 & SPECIAL JUDGE
(NDPS) ACT
SOUTH EAST DISTRICT: SAKET COURT: NEW DELHI
Sessions Case No. 1620 of 2016
FIR No.149/2013
U/s. 21/61/85 NDPS Act
PS : New Friends Colony
State
Vs.
Samiran W/o Sh. Ashraf,
R/o Jhuggi No. 104,
Pahari No. 1, I. G. Camp,
Taimoor Nagar, New Delhi
Instituted on : 29.07.2013
Argued on : 19.12.2018
Decided on : 05.01.2019
JUDGMENT
1 The facts of the case are like this. On 02.06.2013 SI Ashok Giri was posted at PS, New Friends Colony. He was present in the PS. At 03:30 pm a secret informer gave a secret information to him that one lady Samiran is selling purias (pouches) of smack outside her house in Jhuggi Basti, Pahari No. 1, Taimur Nagar who can be apprehended with State v. Samiran - SC No. 1620 of 2016 page 1 of 22 smack on immediate raid. The secret informer was produced before the SHO who verified the facts from the secret informer and informed the senior officers. SHO directed him to take necessary action. DD No. 47B was recorded by him at 04:05 PM and report u/s 42 NDPS Act was sent to Senior officials. SI Ashok Giri constituted a raiding party comprising HC Nathu, Ct. Dharambir and L/Ct. Manju. They were in civil dress. The secret informer was also with them. SI Ashok Giri has recorded DD No. 48B. They have left the PS in the private vehicle and reached in front of the gate of Maharani Bagh, CV Raman Marg. 57 passersby were asked to join them who refused to join them and left the spot without telling their names and addresses. No notice was served upon those persons due to paucity of time. The members of raiding team were briefed. The secret informer was again sent to Jhuggi Basti, Pahari No. 1 to verify the information who came back at 05.10 pm at Ganda Nala, Honey Money Shop, Taimur Nagar after verifying the information. The raiding party went near Masjid, Pahari No.1, Jhuggi Basti, Taimur Nagar where secret informed pointed out towards one lady standing in the gali and left the spot. The lady was apprehended at 05:20 PM, who disclosed her name as Samiran. The secret information was disclosed to the State v. Samiran - SC No. 1620 of 2016 page 2 of 22 accused by them.
2 A notice u/s 50 NDPS Act was served upon the accused who was told that any gazetted officer or Magistrate can be called on the spot to take the search. This is her legal right. The accused told that she is illiterate. She does not know how to read and write. She has been apprehended so there is no need to call any gazetted officer or Magistrate. SI Ashok Giri gave introduction of members of raiding party and offered their search prior to taking her search. The copy of notice was given to accused and the contents were read over to her. The accused refused to exercise her legal right. She got recorded her refusal in the notice. Lady Ct. Manju took the search of accused. The accused took out one white polythene containing purias of smack from under the neck of her kurti and handed over to L/Ct. Manju Lata. L/Ct. Manju handed over the polythene to SI Ashok Giri. The polythene was opened and checked which contained 75 purias of paper containing brown colour substance which was like smack. The contents were taken out in the polythene. The contents alongwith polythene were weighed on the electronic weighing machine which was 10.5 grams. Two samples of 1 gram each were taken out in a transparent polythene and given Sl. No. 2 State v. Samiran - SC No. 1620 of 2016 page 3 of 22 and 3 and remaining smack was kept in the same polythene and given Sl. No. 1. The purias were given Sl. No. 1 to 75 and kept on a separate polythene and given Sl. No. 4. All of them were converted into pullandas and sealed with seal AG. Form FSL was filled and seal AG was affixed on it. The seal after use was handed over to HC Nathu Lal. At 07:00 PM SHO, PS, NFC reached on the spot. The pullandas, FSL Form and copy of seizure memo were handed over to him who counter sealed the pullandas and FSL Form with seal GC. The pullandas and FSL form were taken into possession vide separate recovery memo. The case property was taken by SHO with him. Rukka was prepared and sent to PS through Ct. Dharambir for registration of case who went to PS and came back to the spot after registration of case with copy of FIR, rukka and ASI Devender.
3 SI Ashok Giri, HC Nathu, L/Ct. Manju Lata and accused were found present on the spot. Site plan was prepared at instance of SI Ashok Giri who handed over the custody of accused to ASI Devender. The accused was interrogated who was arrested and personal search and arrest memo were prepared. Disclosure statement of accused was recorded. The supplier was searched in the area of Sadar Bazar but in State v. Samiran - SC No. 1620 of 2016 page 4 of 22 vain. The statements of witnesses u/s 161 CrPC were recorded. 4 The reports u/s 57 NDPS Act were prepared by SI Ashok Giri and ASI Devender and sent to ACP through SHO, PS, NFC. Sealed pullandas and FSL form were sent to FSL Rohini for chemical examination. Charge sheet prepared and filed in the court for trial. FSL report was filed later on.
5 Accused put her appearance. Copy of charge sheet and documents are supplied to her. After hearing charge u/s 21 NDPS Act is framed against her to which she pleaded not guilty and claimed trial. 6 Prosecution has examined 10 witnesses. Prosecution evidence is closed. Accused is examined u/s 313 CrPC. Her defence is that she has been called to PS. She is falsely implicated in this case. She has not led defence evidence.
7 PW6 HC Subhash stated that on 02.06.2013 he was Duty Officer from 04.00 pm till 12:00 night at PS, New Friends Colony. At 07.30 pm, Ct. Dharambir has brought one rukka upon which FIR Ex.PW6/A was got typed through Computer Operator. He made an endorsement Ex.PW6/B on the rukka and handed over the same alongwith copy of FIR to Ct. Dharambir with the direction to give the State v. Samiran - SC No. 1620 of 2016 page 5 of 22 same to ASI Devender for further investigation.
8 PW10 ASI Vijay Singh stated that on 02.06.2013 he was Malkhana Mohrar at PS, New Friends Colony. SHO has handed over four sealed pullandas duly sealed with seals AG and GC alongwith FSL Form bearing seal AG & GC to him. He has made an entry at Sl. No. 2031 of register no. 19, copy of which is Ex.PW3/A. On 07.06.2013 sealed pullanda and FSL Form were sent to FSL through Ct. Sunil vide RC No. 85/21/2013, copy of which is Ex.PW2/A which bears his signatures at point A. The case property was not tampered as long as it remained in his possession. During cross examination, he stated that forwarding letter was sent to FSL Rohini.
9 PW3 Inspector Govind Chauhan stated that on 02.06.2013 he was posted as SHO, PS, NFC. At 07.10 pm he was on patrol duty and reached near Noor Masjid, Pahari No. 1 where PW8 and accused met him. PW8 has told him about the recovery of smack from the accused and handed over 4 sealed pullandas sealed with seal of AG, FSL Form bearing seal AG and copy of seizure memo. He has put his seal GC on the pullandas and FSL Form and took the same to PS. He has put FIR Number on all the pullandas and deposited in the Malkhana. The entry State v. Samiran - SC No. 1620 of 2016 page 6 of 22 was made at Sl. No. 2031 of Register No. 19, copy of which is Ex.PW3/A. He has recorded DD No. 26A. On 03.06.2013, he has forwarded a report u/s 57 NDPS Act Ex.PW3/B prepared by SI Ashok Giri to ACP. During cross examination he stated that he was on patrol duty when he reached on the spot. He has left the PS by making departure entry. The suggestion is denied that he has not recorded departure entry or did not visit the spot. He has remained on the spot for 15 minutes. The seal after use was taken back by him. He has put FIR on all the pullandas. He does not know if Mohd. Ashraf, husband of the accused, is BC of PS, NFC. He admitted that he has booked few criminal cases at PS, NFC. The suggestion is denied that beat officials were demanding gratification from Mohd. Ashraf and his refusal has led to the implication of his wife in this case. The suggestion is denied that HC Nathu Lal and ASI Devender have lifted the accused from her house. 10 PW9 Kavita Goel, Assistant Director, FSL stated that on 07.06.2013 one sealed cloth parcel mark2 sealed with seals AG & GC was received for chemical examination in the office through Ct. Sunil. The seals on the pullandas were intact and tallied with specimen seals when pullanda was marked to her for examination. She has opened the State v. Samiran - SC No. 1620 of 2016 page 7 of 22 pullanda which contained reddish brown colour coarse powdery substance weighing 1.45 grams. On chemical, TLC and GC - MS examination, it was found to contain diacetymorphine (9%), monoacetymorphine, paracetamole, caffine (20.3%), acetylcodeine and alprazolam. The remnants were resealed with seal KG FSL DELHI and sent to IO. The report is Ex.PW9/A. The report alongwith forwarding letter Ex.PW9/B with impression of seal on FSL Report was sent to SHO PS, NFC.
11 PW5 H. M. Bakshi, ACP stated that on 03.06.2013 he was ACP, NFC. On that day, a report u/s 57 NDPS Act was received from ASI Devender through SHO PS, NFC regarding which entry was made at Diary No. 4289, copy of which is Ex.PW5/A. The report Ex.PW5/B bears his signature at pointA. On that day another report u/s 57 NDPS Act was received from SI Ashok Giri through SHO PS, NFC regarding which an entry was made at Sl. No. 4301 copy of which is Ex.PW5/C. The report Ex.PW5/D bears HIS signature at pointA. The carbon copy of DD No. 47B Ex.PW5/E was also received alongwith report Ex.PW5/B. 12 PW2 Ct. Sunil stated that on 07.06.2013 he has taken State v. Samiran - SC No. 1620 of 2016 page 8 of 22 sample pullanda bearing Sl. No. 2 alongwith FSL Form from MHC(M) vide RC No. 82/21 Ex.PW2/A for deposit in FSL, Rohini. He has deposited the same in FSL on the same day. tHE acknowledgment of case acceptance is Ex.PW2/B which was handed over to MHC(M). The case property was not tampered as long as it remained in his possession. 13 PW1 L/Ct. Manju Lata stated that on 02.06.2013 she was present in the PS, NFC. SI Ashok Giri has received a secret information who informed SHO about the supply of smack by a lady. SI has constituted a raiding party comprising of herself, PW4 HC Nathu Lal, Ct. Dharmender and secret informer. DD No. 48B was recorded by him regarding the departure from the PS. All of them left the PS in a Indica Car and reached in front of the gate of Maharani Bagh, CV Raman Marg. The secret informer was again sent to Jhuggi Basti, Pahari No. 1 to verify the information who came back after verifying the information. Public persons were asked to join them but none of them agreed. At 05:15 pm, they reached in the gali near Masjid, Pahari No.1, Jhuggi Basti, Taimur Nagar where secret informer pointed out towards one lady i.e. accused standing in the gali and left the spot. The lady was stopped who disclosed his name as "Samiran". The secret information was State v. Samiran - SC No. 1620 of 2016 page 9 of 22 disclosed by them to the accused and told that they want to take her search. The accused took out 75 purias from her wearing kurta and handed over to SI Ashok Giri. A notice u/s 50 NDPS Act was served upon the accused, carbon copy of which is Ex.PW1/A. It was told to the accused that any gazetted officer or Magistrate can be called on the spot to take the search. This is her legal right. The accused has refused to exercise her legal right. Her reply Ex.PW1/B was recorded on the notice at the instance of accused. She took the search of accused upon which one notice u/s 50 NDPS Act in original and Rs. 270/ were recovered from her personal search. The purias were opened which contained brown colour substance which was like smack. The contents were taken out in the polythene. The contents alongwith polythene was weighed on the electronic weighing machine which was 10.5 grams. Two samples of 1 gram each were taken out in a transparent polythene and given Sl. No. 2 and 3 and remaining smack was kept in the same polythene and given Sl. No. 1. The purias were given Sl. No. 1 to 75 and kept on a separate polythene and given Sl. No. 4. All of them were converted into pullandas and sealed with seal AG. Form FSL was filled and seal AG was affixed on it. The seal after use was handed over to HC Nathu Lal. At 07:00 PM State v. Samiran - SC No. 1620 of 2016 page 10 of 22 SHO, PS, NFC has reached on the spot. The four pullandas, FSL Form and carbon copy of seizure memo were handed over to SHO who counter sealed the pullandas and FSL Form with seal GC. The pullandas and FSL form were taken into possession vide separate recovery memo. The case property was taken by SHO with him. Rukka was prepared and sent to PS through Ct. Dharambir for registration of case who went to PS and came back to the spot after registration of case with copy of FIR, rukka and ASI Devender. SI Ashok Giri has handed over original notice u/s 50 NDPS Act, Rs.270/ and custody of accused to ASI Devender. The accused was interrogated who was arrested. Personal search and arrest memo Ex.PW1/D & E were prepared. Disclosure statement Ex.PW1/F of accused was recorded. The site plan was prepared by ASI Devender. They came back to PS. She has identified the case property and original notice u/s 50 NDPS Act Ex.PW1/G. 14 During cross examination she stated that SI Ashok Giri has not shared the information with SHO in her presence. She does not know how the car was arranged. She does not know the colour and registration number of the car. She does not know the time when they reached at Maharani Bagh near Honey Money Shop, Nala Taimur Nagar. They State v. Samiran - SC No. 1620 of 2016 page 11 of 22 were in civil dress. IO had made inquiries from public persons who refused to join the police party. She does not know whether anyone from nearby shops or from masjid were called or not. She was standing at pointA as shown in site plan Ex.PW1/D1. She has stopped the accused. The informer has pointed out towards the accused in her presence. SI Ashok Giri has made inquiries from the accused and told that accused can take the search of police party. The legal right was told to the accused prior to taking her search. The accused has told that she is illiterate and does not want to avail her right. Public persons were crossing the spot at that time. The reply of the accused was recorded on the notice at the instance of the accused. The weighing machine was with the SI Ashok Giri. The purias were counted by SI Ashok Giri and wrote the numbers 1 to 75. Ct. Dharambir came back at 08:10 pm from PS after registration of FIR. Ct. Dharambir was on foot. She cannot say if husband of the accused is drug addict and has been arrested twice by PS NFC. The suggestion is denied that on 02.06.2013 at 03:30 pm accused was taken from her house for making an inquiry and later on booked in this case.
15 PW4 HC Nathu Lal has corroborated the version of PW2 in
State v. Samiran - SC No. 1620 of 2016 page 12 of 22
his examination in chief and identified the case property and accused. During cross examination he stated that he does not remember the registration number or about the owner of Indica Car. They have reached on the spot at around 05:20 PM. There are number of shops, residential houses and jhuggies near the spot but on one was called from these places to join them. The name of the Gazetted officer or Magistrate was not disclosed to the accused. He has returned the seal to the IO on the same day. ASI Devender did not call any public witness from the Jhuggies or residential houses. They went to Sadar Bazar, Railway Station in search of the source from the spot. The suggestion is denied that he did not go to the spot or accused was not apprehended or nothing was recovered from the accused or accused was lifted from her house and implicated in this case.
16 PW8 Inspector Ashok Giri has repeated the prosecution version already set out in the beginning while briefing the facts and also corroborated the versions of PW1 & 4. He further added that DD No. 47B Ex.PW7/B was recorded by him. The personal search of the accused was conducted by L/Ct. Manju and purias were recovered from her possession. Rukka Ex.PW8/A was prepared by him. He has prepared a State v. Samiran - SC No. 1620 of 2016 page 13 of 22 report u/s 57 NDPS Act Ex.PW3/B and placed before SHO. He has identified the case property and the accused. During cross examination he stated that he has been posted in this PS since 2012. He knows that husband of the accused is involved in the cases registered at PS, NFC. He does not know the number of Indica Car but it was taken from Sher Ali who was present in the parking of PS. The said car was handed over to ASI Devender on the spot. They were in civil dress. He has given Sl. No. 1 to 75 on the purias. The accused was sitting outside her jhuggi. He does not know if family members of the accused were inside the jhuggi. He does not know about the neighbours of the accused. HC Nathu has returned back the seal to him after 2 - 3 days. The suggestion is denied that the accused was lifted from her jhuggi by HC Nathu Lal and ASI Devender on the pretext of making inquiry and implicated in this case. 17 PW7 SI Devender (the then ASI) stated that on 02.06.2013 the investigation of the case was handed over to him. Duty Officer has handed over one rukka and copy of FIR to him for further investigation upon which he alongwith Ct. Dharambir came to jhuggi, Pahari No.1, Taimur Nagar where SI Ashok Giri, L/Ct. Manju Lata, HC Nathu Lal and accused were present. The accused was handed over to him by SI State v. Samiran - SC No. 1620 of 2016 page 14 of 22 Ashok Giri. He has prepared site plan Ex.PW1/D1 at the instance of SI Ashok Giri. The accused was interrogated whose disclosure statement Ex.PW1/F was recorded. The accused was arrested. Personal search and arrest memo Ex.PW1/D & E were prepared. One notice u/s 50 NDPS Act and Rs.270/ were recovered in the personal search of the accused. The accused took them to Sadar Bazaar area in search of supplier but in vain. They came back to PS. The accused was sent for medical examination. A report u/s 57 NDPS Act Ex.PW7/A was prepared and placed before SHO. He has recorded the statements of witnesses and articles of personal search memo were deposited in the Malkhana. The exhibits were sent to FSL through Ct. Sunil. He prepared the charge sheet and filed in the court of trial. He has collected FSL Report and filed the same in the Court. During cross examination he stated that he has requested neighbours to join the investigation but they refused to do so without revealing their names. They have gone to Sadar Bazar in Indica car which was left on the spot by SI Ashok Giri. He does not remember the registration number of Indica car but it belonged to Sher Singh, owner of the parking in front of police station. The suggestion is denied that on 2.6.2013 at 3.30pm the accused was brought from her State v. Samiran - SC No. 1620 of 2016 page 15 of 22 jhuggi to the police station on the pretext of making some inquires and thereafter implicated in this case.
18 Ld. Addl. PP for the State submitted that recovery of the contraband from the possession of the accused is clear from the testimony of witnesses. She further submitted that the link evidence is complete and there is nothing on the record that the case property was ever tampered. She further submitted that prosecution witnesses have duly supported the case of prosecution.
19 Ld. Counsel for the accused submitted that there are number of contradictions in the testimony of police officials which make their testimony doubtful. He further submitted that every contradiction in the testimony of official witness assumes importance, the benefit of which goes to the accused. He further submitted that provisions of sections 42 and 50 of NDPS Act have not been complied with. He further submitted that accused has been falsely implicated as her husband is BC of the area. He further submitted that accused was called from her jhuggi on the pretext of making some inquiries and thereafter implicated in this case. 20 Heard and perused the record.
21 It is admitted preposition of law that burden of proving the
State v. Samiran - SC No. 1620 of 2016 page 16 of 22
case never shifts. It lies on the prosecution. The defence version may be false but the prosecution cannot derive any advantage from the falsity or other infirmities of the defence evidence so long as it does not discharge the initial burden of proving its case beyond shadow of reasonable doubt. 22 The testimony of PW8 shows that a secret information was received by him regarding the sale of smack by the accused outside her jhuggi. He has produced the secret informer before PW3 who confirmed the information from the secret informer and directed him to conduct the raid. PW3 has not deposed this fact. There is an omission on his part to depose this fact. This is a material fact. The omission to depose the material fact amounts to contradiction which goes to the root of the case of the prosecution.
23 DD No. 47B Ex. PW7/B was recorded by PW8. This DD bears the signature of PW3. PW3 has nowhere deposed that Ex. PW7/B was placed before him by PW8 and same was forwarded by him to PW5. The omission to depose this fact amounts to contradiction which goes to the root of the prosecution case. It shows that Ex. PW7/B was not recorded in the manner as projected by the prosecution. A doubt is created in the mind of the court about the number of recording of DD Ex.
State v. Samiran - SC No. 1620 of 2016 page 17 of 22 PW7/B. 24 PW8 has recorded DD No. 48B Ex. PW7/C about the
formation of raiding party and leaving the police station in a private vehicle. The said DD was not placed before PW3 for the reasons best known to PW8. No explanation is forthcoming why the said DD was not placed before PW3. Non explanation calls for an adverse inference against the prosecution.
25 The police party headed by PW8 has left the PS in Indica car allegedly belonging to Sher Ali. The registration number of the said car is not recorded in DD Ex. PW7/C for the reasons best known to PW8. The prosecution has not examined Sher Ali to show that PW8 has taken his car for going to the raid in order to inspire confidence in the mind of the court that the car was actually used by PW8 for going to the spot. His nonexamination calls for an adverse inference against the prosecution. This has created a doubt whether the police party has left the PS in the Indica car as projected by the prosecution.
26 PW3 was on patrol duty and reached on the spot where PW8 and other members of the raiding team met him. PW8 told him that they have apprehended the accused with smack. The sealed pullandas were State v. Samiran - SC No. 1620 of 2016 page 18 of 22 produced before him who counter sealed them and also put seal on FSL form. The manner in which PW3 has reached at the spot is full of suspicion. No DD entry is placed on record that PW3 was on patrol duty in the area. His testimony shows that he has recorded DD No. 26A after coming to PS but no such DD is placed on record. It creates a doubt in the mind of the court whether PW3 has actually reached on the spot and counter sealed the case property.
27 The testimony of PW8 nowhere shows that he was carrying weighing machine with him in order to weigh the alleged recovered contraband from the possession of accused. It shows that PW8 was not carrying any weighing material with him and proceedings were not conducted in the manner as deposed by the witnesses. 28 The argument of Ld. Counsel for the accused whether section 50 NDPS Act has been complied with or not is to be seen in the light of law laid down by Hon'ble Apex Court. It was held by their lordship in Vijaysinh Chandubhja Jadeja v. State of Gujarat (2007) 1 SCC 433 that requirement of Section 50 NDPS Act are mandatory and therefore, the provisions of section 50 must be strictly complied with.
29 The testimony of PW1 shows that accused was apprehended
State v. Samiran - SC No. 1620 of 2016 page 19 of 22
who took out 75 paper purias from her wearing kurta and handed over to the IO and thereafter notice u/s 50 NDPS Act was served upon the accused. The testimony of PW4 shows that the secret information was disclosed to accused after her apprehension. She was told about her legal right to get herself searched in the presence of Magistrate or Gazetted Officer upon which notice u/s 50 NDPS Act was served upon her. The accused refused to avail such right. The accused took out one polythene from her blouse and handed over to PW8. The testimony of PW8 shows that accused was apprehended who was told about the secret information and further told that she has a right to get herself searched in the presence of Gazetted Officer or Magistrate. The notice u/s 50 NDPS Act was served. The accused has refused to exercise her right. The personal search was conducted by PW1 and one light brown colour powder i.e. smack was recovered from her search. All the PWs have given different version regarding the manner of recovery of contraband from the possession of the accused for the reasons best known to them. 30 The provisions of Section 50 NDPS Act must be complied with. The entire evidence on the file shows that the accused was not produced before Gazetted Officer or Magistrate. None of the police State v. Samiran - SC No. 1620 of 2016 page 20 of 22 official was a Gazetted Officer. They were not empowered tomake search and recovery of contraband from the accused as provided under section 50 NDPS Act except in the presence of Gazetted Officer or Magistrate. The recovery is not effected in the presence of Gazetted Officer. The recovery is not in conformity with the requirements of Section 50 of NDPS Act. There is no evidence that recovery of smack was effected from the accused in accordance with Section 50 of NDPS Act. The non compliance of the mandatory provision is fatal to the case of prosecution. The recovery of smack from the accused does not inspire confidence. Support is drawn from Crl. Appeal No. 273/2007 tittled as Arif Khan @ Agha Khan Vs. State of Uttrakhand decided on 27.04.2018 by Hon'ble Apex Court and Dharambir v. State (2018) 254 DLT 354. 31 In view of my aforesaid discussion, I have no hesitation to hold that the prosecution has failed to prove its case against the accused beyond shadow of reasonable doubt so accused is acquitted of the offence u/s 21 NDPS Act. The personal bond is cancelled and surety bond stands discharged.
32 The case property be destroyed after expiry of the period meant for appeal as the case may be.
State v. Samiran - SC No. 1620 of 2016 page 21 of 22
33 File be consigned to records.
Announced in the
open court on
5th January, 2018
(SURESH KUMAR GUPTA)
Additional Sessions Judge04 & Spl. Judge (NDPS)
SouthEast, New Delhi
State v. Samiran - SC No. 1620 of 2016 page 22 of 22