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Delhi District Court

Fir No. 25/2013 State vs . Arther Frank Etc. Page No.1 Of 66 on 2 November, 2019

                   IN THE COURT OF SH. AJAY GUPTA,
                        SPECIAL JUDGE (NDPS),
                    KARKARDOOMA COURTS, DELHI

S.C. No. 816/2016
FIR No.25/2013
U/s 419/471 IPC & 9A/25A/29 NDPS Act.
PS­Special Cell, Lodhi Colony


State

Versus

(1)               Arther Frank
                  S/o Sh. Amaechi
                  H.No.S/594 Room No.202, IInd Floor
                  Shakarpur, Delhi

(2)               Sandeep Bansal
                  S/o Sh. Mohan Lal Bansal
                  R/o D­177 Anand Vihar Colony
                  Delhi

(3)               Krishan Kumar
                  S/o Sh Jagdish Prasad
                  R/o H.NO.A/25, West Nathu Colony
                  Delhi
                                                  ........... Accused


Date of Institution: 12.08.2013
Reserved for Judgment on : 24.10.2019
Judgment pronounced on: 02.11.2019


FIR No. 25/2013                State Vs. Arther Frank etc.   Page No.1 of 66
 JUDGMENT

1. The prosecution case in brief is that on 15.06.2013 at about 11.00 a.m., SI Rakesh Kumar received a secret information from his source about members of an international narcotic drug syndicate who are indulged in smuggling of ephedrine from Delhi to various countries including Dubai, Nigeria and European countries. Secret informer also informed that one active member of the syndicate namely Mehboob Khan r/o Mumbai who had come to Delhi, would receive a large consignment of ephedrine from a transport company at Tis Hazari, Delhi alongwith his associate namely Drona and both of them would load the contraband in a three wheeler (goods carrier) bearing No. DL 1LQ 3702 at transport company and both would come to Laxmi Nagar in between 2.00 p.m to 4.00 p.m to deliver the consignment of ephedrine to their associate namely Arther Frank of Nigeria. SI Rakesh reduced the said information into writing on a paper and thereafter, he lodged DD No.12 at about 11.15 a.m in daily diary. SI Rakesh informed Insp. Attar Singh about the secret information and the secret informer was produced before him, who interrogated the secret informer and verified the information. Insp. Attar Singh passed the said information to Sh Satyavir Dagar, ACP through telephone at his residence. ACP gave verbal orders to take appropriate action. DD no.12 was recorded and it was placed before Insp. Attar Singh, who forwarded the same to ACP concerned.

FIR No. 25/2013 State Vs. Arther Frank etc. Page No.2 of 66

2. It is further the case of the prosecution that SI Rakesh Kumar constituted a raiding party consisting of himself, ASI Prabodh, ASI Shamsher, ASI Bhushan Kumar, HC Suresh, HC Rajbir, HC Surender and Ct. Sandeep. At about 12.05 p.m., SI Rakesh after taking field testing kit, electronic weighing scale and arms/ammunition alongwith the raiding party members and the secret informer departed from the PS in two Govt. Zypsys bearing no. DL 1CJ 3566 and DL 1CM 1346 being driven by HC Rajbir and Ct. Sandeep. On the way, SI Rakesh Kumar requested six passersby at Shantivan Chowk to join the raiding party but none agreed and left the spot without telling their names and addresses. Nakabandi was made at Shantivan chowk and wait for three wheeler was made. Despite waiting upto 6.00 p.m., the said three wheeler did not come. The informer talked with his source on the mobile. At about 6.45 p.m, the secret informer told to SI Rakesh that he had come to know that Mehboob Khan alongwith his associate would go to Bikaner Sweets, Mother Dairy road via Laxmi Nagar in the aforesaid three wheeler loaded with ephedrine to deliver the same to a Nigerian National between 8.00 p.m to 9.00 p.m. SI Rakesh reduced this information upon a separate piece of paper which was later on placed before ACP; ACP was informed on telephone. Raiding party reached Laxmi Nagar Chowk where 5­6 persons were requested to join the raiding team but none agreed and left the spot without telling their names and addresses except two who told their names FIR No. 25/2013 State Vs. Arther Frank etc. Page No.3 of 66 as Mangal s/o Ramji Lal village Kheri, District Aligarh, UP and Ram Avtar s/o Bishambher Dayal r/o Village Hirankudna, Delhi but they also refused to join the raiding party. Raiding party was deployed near Bikaner Sweets.

3. It is further the case of the prosecution that at about 8.15 p.m., a person of Nigerian origin was seen coming from Mother Dairy side on foot and he stood near Bikaner Sweets about whom informer told that he was Arther Frank. After 10 minutes, a three wheeler No. DL 1LQ 3702 came and stopped about 10­15 steps from Bikaner Sweets after taking U­turn at Mother Dairy Road. One person was sitting adjacent to the TSR driver. Arther Frank came near the TSR where a person sitting upon backside of TSR took out one pithu bag of Army colour and a black colour polythene from backside of TSR and handed over the same to the Arther Frank. The secret informer pointed out the person sitting adjacent to driver was Drona and person on the backside of TSR, who handed over the bags to Nigerian National (Arther Frank) was Mehboob Khan. The raiding party apprehended three persons. On enquiry, their names revealed as Mehboob Khan, Arther Frank and TSR driver Tika Ram but Drona succeeded to escape due to night and heavy rush in the market. Although ASI Shamsher Singh and Ct. Sandeep chased him but the could not be caught. Upon cursory interrogation, Tika Ram told that Drona and Mehboob Khan had hired his TSR to carry the luggage/load from the transport company at Rajindra Market, Tis FIR No. 25/2013 State Vs. Arther Frank etc. Page No.4 of 66 Hazari, Delhi. He also told that they loaded the three wheeler with six items from transport company and they added one more item from Santro car. Two packets were handed over to another Nigerian National on the way and Tika Ram told that that they had promised to pay fare of Rs.700/­ to him and that he was not told about the contents of the luggage. This fact that Tika Ram was unaware of the fact of contraband in drums and bags was confirmed during investigation of above case. Both the accused Mehboob Khan and Arther Frank were told about the secret information and that there is possibility of recovery of ephedrine from their personal possession and from four drums and four white racksin bags and one gunny bag kept in the TSR. The accused persons were told about their legal rights to be searched before the Magistrate/Gazetted Officer. They were also told that they can take the search of raiding party prior to their own search but they refused. Accused Arther Frank refused to sign the notice. Accused Mehboob Khan recorded his refusal in this regard upon original copy of his notice and refusal upon original copy of Arther Frank was written by SI Rakesh Kumar. SI Rakesh took the pithu bag from the right hand of accused Arther Frank and it was checked. On checking, two transparent polythene packets each containing white colour powder were found. Inside black colour polythene, a transparent polythene containing a similar white colour powder was found. Recovered substance was checked with field testing kit and it was found as ephedrine. On weighing on electronic weighing scale, weight of each transparent packet FIR No. 25/2013 State Vs. Arther Frank etc. Page No.5 of 66 alongwith ephedrine in pithu bag was found to be 12.5 Kgs each which was marked as 'A' and 'B'. Weight of ephedrine in transparent polythene packet in black colour polythene was found 25 Kgs which was marked 'C'. Two samples of 25 grams ephedrine each were taken out from each packet and six samples were prepared and converted into cloth parcels which were marked A1, A2, B1, B2, C1 & C2. Remaining ephedrine alongwith recovered polythene packets were converted into three separate cloth parcels and Marked as A, B and C. Form FSL was filled up and all the parcels were sealed with the seal of 'RK' and same seal was affixed on FS form and the parcels were seized but accused refused to sign the seizure memo.

4. It is further the case of the prosecution that the backside of TSR no. DL 1LQ 3702 was checked and it was found having four drums of cardboard having metal caps, four white plastic bags and one big drum kept in a gunny bag. On checking the four drums, one transparent polythene containing white colour powder in each drum was found. The said powder was tested on filed testing kit and it was found as Ephedrine. On weighing, each drum was containing 25 Kgs ephedrine in each drum. 2 ­2 samples of 25 grams were drawn which were kept in polythene packets, converted into parcels and given Mark D1, D2, E1, E2, F1, F2 and G1, G2. Four small drums were kept in four gunny bags and converted into pullandas Mark D, E, F and G. The weight of white colour plastic polythene was found to be 35 Kgs, out of which two FIR No. 25/2013 State Vs. Arther Frank etc. Page No.6 of 66 samples of 25 grams ephedrine were taken out and kept in 8 small polythene packets and eight cloth parcels were prepared ad given Mark H1, H2, I1, I2,J1, J2 and K1, K2. White plastic bags were also converted into pullandas and marked as H, I, J and K. Big drum was checked in which white colour powder was found, on weighing it as found to be 50 Kgs out of which two samples of 25 grams were taken out and given Mark L1 and L2. Remaining ephedrine was also converted into pullanda and given Mark L. FSL form was filled regarding seizure from TSR. All the 27 parcels and FSL form were seized with the seal of 'RK' and seized through seizure memo. Seal after use was handed over to public witness Tika Ram.

5. It is further the case of the prosecution that SI Rakesh Kumar prepared the rukka and got the case registered. Case property was sent to Insp. Dinesh Kumar Sharma, SHO who counter sealed the same with his seal of DKS and deposited in the malkhana. Thereafter, the investigation was marked to Insp.Attar Singh who reached at the spot. He interrogated both the accused and prepared the site plan. He arrested both the accused Arther Frank and Mehboob Khan. Two mobile phones bearing no.8376953116 and 9654069165 were recovered from accused Arther Frank which were seized. Search of the house of accused Arther Frank i.e. S­594, 2 nd floor, Shakarpur was conducted and a letter of identification in respect of accused Arther Frank purported to have been issued by High Commission of Nigeria at New Delhi and a letter of Jail FIR No. 25/2013 State Vs. Arther Frank etc. Page No.7 of 66 Superintendent having conviction details of accused Arther Frank in a NDPS Act pertaining to NCB were recovered and seized. He recorded the disclosure statement of accused Arther Frank. Accused disclosed that he is convicted for 10 years in a NDPS Act filed by NCB. Accused disclosed that a fellow Nigerian introduced him to Abu Baba of Dubai who used to run international racket of drug trafficking and Abu Baba introduced him to Mehboob Khan in Delhi and he received the consignment of ephedrine at the directions of Abu Baba.

6. It is further the case of the prosecution that accused Mehboob Khan was arrested. One mobile phone no.9819335697 was recovered from him. Thereafter, accused were brought to PS Special Cell, Lodhi Colony and TSR, mobile phones and personal search items were deposited in the malkhana. Both the accused were produced before ACP/Special Cell on 16.06.2013 at about 2.00 p.m. Accused Mehboob Khan was thoroughly interrogated who also disclosed that he is active member of international narcotic syndicate led by Abu Baba. He also disclosed that on the instructions of one Abu Baba, he discussed about drug trafficking in India with one Tahir of Mumbai. Tahir sent him to Delhi to meet Nisar who introduced with persons of Nigerian origin. On 27.05.2013, Mehboob came to Delhi and stayed in Hotel Al­Haram, Jama Masjid. In Jama Masjid area, he met Drona as per directions of Abu Baba. Mehboob used to communicate with Drona on mobile FIR No. 25/2013 State Vs. Arther Frank etc. Page No.8 of 66 no.8266802098. He also disclosed that Mehboob Khan asked Drona to arrange 400 Kgs of ephedrine for supplying the same to a Nigerian National and Drona took him to Bansal Pharma in Bhagirath Palace and met Sandeep Bansal. Later consignment was reduced to 275 Kgs ephedrine. Transporter was introduced by Sandeep Bansal as the Nigerian had to take the delivery of the same in Hapur. Consignment remained struck in Hapur as Nigerian changed his mind and requested Drona to give supply in Delhi itself. Consignment was brought back to Delhi by Drona through same transport company. He further disclosed that he alongwith Drona took delivery of 275 Kgs ephedrine and Drona added 125 Kgs ephedrine to make it 400 Kgs as per directions of Abu Baba.

7. It is further the case of the prosecution that both the accused Mehboob Khan and Arther Frank were produced before the Ld. MM on 16.06.2013 and three days PC remand was obtained. Supplementary statements of the accused persons were recorded. On the basis of disclosure statement accused Mehboob Khan, police led by Insp. Attar Singh reached at 1785/8/1, Ist Floor, Mangal Building no.1 Bhagirath Palace and on 21.06.2013, accused Sandeep Bansal r/o D­177 Anand Vihar Colony was apprehended on the identification of accused Mehboob Khan. After informing him about the disclosure of accused Mehboob Khan, a notice u/s 50 NDPS Act was served upon him and after telling him that Mehboob Khan had disclosed about the facts of receiving of ephedrine from FIR No. 25/2013 State Vs. Arther Frank etc. Page No.9 of 66 him by Drona. He was told about his legal rights but he refused for the same. Notice u/s 50 NDPS Act was served upon Sandeep Bansal. He recorded his refusal on the original copy of the notice. Search of Bansal Pharma was conducted and a reckcine bag having a black colour polythene having two transparent polythenes inside each containing 10 Kgs i.e. 20 Kgs ephedrine was recovered from his office. Both the parcels were marked M and N. Out of parcel M, two samples of 25 grams were taken out and converted into pullandas which were given Mark M1 and M2 and remaining ephedrine was converted into pullanda and given Mark M. Similarly, from another parcel samples were taken out and given Mark N1 and N2 and remaining ephedrine was given mark N. All the pullandas were sealed with the seal of ASY. FSL form was filled up at the spot which was also affixed with the same seal. The pullandas were seized and seal after use was handed over to SI Sandeep Kumar. Accused Sandeep Bansal was arrested and his disclosure statement was recorded. Accused disclosed that 20 Kgs ephedrine was delivered to him by Krishan Kumar.On the disclosure statement of accused Sandeep Bansal, a trap was laid near SBI Bank, Main Chandni Chowk Road and accused Krishan Kumar was apprehended at about 6.15 p.m on the pointing out of accused Sandeep Bansal and he was told about the disclosure statement made by accused Sandeep Bansal and that he had come there to hand over 10 Kgs ephedrine. He was also told about his legal rights and a notice u/s 50 NDPS Act was served upon him. He refused to FIR No. 25/2013 State Vs. Arther Frank etc. Page No.10 of 66 avail his rights on the carbon copy of the notice u/s 50 NDPS Act. Search of accused was conducted and one bag containing a black colour polythene was found in his hand. On checking, it was found containing 10 Kgs ephedrine. Two samples of 25 grams each were taken out from the said ephedrine and converted into pullandas and given Mark O1 and O2 and the remaining ephedrine was also converted into parcel and given Mark O. FSL form was filled up at the spot. All the parcels and FSL from were sealed with the seal of ASY. The parcels were seized and seal after use was handed over to SI Sandeep Kumar. Accused Krishan Kumar was arrested and his personal search was conducted. His disclosure statement was recorded. Three mobile phones no. 7503083372, 8595495274 and 7827766177 were recovered from him. After completion of the investigation, IO alongwith accused persons came to Special Cell, Lodhi Colony, Delhi where case property seized above i.e. nine parcels and two FSL form, carbon copy of seizure memos handed over to Insp. Rajender Sehrawat who counter sealed the same and deposited in the malkhana. Second IO submitted the report u/s 57 NDPS Act on 22.06.2013. Mobile phone of the accused persons were kept for the investigation purpose. Accused Drona could not the arrested.

8. It is further the case of the prosecution that employees of Sodhi Roadlines at 150 Rajendra Market namely Jalaluddin and Balkishan and Soni Sodhi and Naresh Tyagi of Janta Golden FIR No. 25/2013 State Vs. Arther Frank etc. Page No.11 of 66 Transport, Hapur were examined and their statements were recorded. Necessary documents pertaining to the case were seized. It was revealed that the six parcels, weighing 275 Kgs sent from Delhi got stuck in Hapur as no one came to take the delivery of consignment. Parcels were booked by unidentified person posing an employee of Raj Chemicals. Person who booked the consignment approached the transport company and asked to get the consignment back to Delhi. Said person was identified as Drona @ Iqbal and Mehboob got delivery of the consignment at Tis Hazari transport company on 15.06.2013, loaded in a hired three wheeler belonging to Tika Ram. Accused Sandeep Bansal and Krishan Kumar were produced before the Court and three days PC remand was taken. During PC remand, voice samples of both the accused were taken at FSL Rohini, Delhi in the presence of public witness Noor Alam. Voice samples of accused Sandeep Bansal were recorded on two audio cassettes i.e one master piece and another copy of the same and the same were marked S1 and S2 and voice samples of accused Krishan Kumar were Marked S3 and S4. Both were kept in separate envelopes and were sealed with the seal of RS by keeping in separate envelopes and the same were seized. Seal after use was handed over to Public witness Noor Alam. Sealed envelopes were deposited in the malkhana.

9. It is further the case of the prosecution that the intercepted call of accused Sandeep Bansal and Krishan Kumar and FIR No. 25/2013 State Vs. Arther Frank etc. Page No.12 of 66 absconding Drona were copied in two CD's, CD was kept in an envelope and sealed with the seal of ASY and the same was seized and sealed and seal after use was handed over to SI Sandeep Kumar. On 21.06.2013, 12 sealed sample parcels were sent to FSL with FSL form and copy of seizure memo through SI BB Gurang vide RC No. 118/21/13 who deposited the same in the malkhana. On 28.06.2013, three sealed parcels were sent to FSL vide RC no.123/21 and on 03.07.2013, four sealed envelopes regarding voice samples were sent to FSL vide RC no.124/21.

10. It is further the case of the prosecution that notices were issued to the service providers and CDRs of the mobile phones of accused persons, Drona and Mehboob Khan were obtained. The details of the owners were traced and statements of some of the owners were also recorded and it was revealed that accused persons have got activated some numbers by impersonating and using IDs of other persons and in some cases by pasting photos of ID holders and some case photo do not match with the ID holder. Section 419 and 471 IPC were therefore, added. It was revealed that accused Sandeep Bansal had prepared a fake invoice in the name of Anupam Pharma which is non­existent at the given address at Patna. Intercepted calls revealed that accused Sandeep Bansal had asked Drona to deposit money in his account and Drona had got deposited Rs.40,000/­ in the said account on 20.06.2013 for purchasing ephedrine. Statement of the said account was obtained and placed on FIR No. 25/2013 State Vs. Arther Frank etc. Page No.13 of 66 file. Documents with regard to stay of accused Mehboob Khan in Hotel Al­Haram, Jama Masjid was taken. Drug licence in respect of Bansal Pharma and transaction details were obtained from Bansal Pharma through memo. Among the sale invoices, invoice of 400 Kgs cellulose powder in the name of Anupam Pharma dated 31.05.2013 was recovered. Result of finger print slips have been collected and placed on file. Case property was deposited in the malkhana. Accused Arther Frank was found involved & convicted in another case of NDPS Act. FSL result confirms that the recovered substance was pseudoephedrine. After completion of the investigation, charge­sheet was prepared and filed before the Court for trial.

11. My Ld. Predecessor took the cognizance of the offence. Copies of documents were supplied to accused. Arguments on charge were heard. Charge u/s 25A/29 NDPS Act was framed against all the accused to which they pleaded not guilty.

12. In order to prove its case, prosecution examined 33 witnesses. PW1 is ASI Devappa. He is the duty officer. He recorded the FIR on the basis of rukka brought by HC Suresh sent by Insp. Attar Singh. The copy of FIR is Ex.PW1/A. After registration of the FIR, he handed over the rukka in original and copy of FIR to HC Suresh for handing over the same to IO.

FIR No. 25/2013 State Vs. Arther Frank etc. Page No.14 of 66

13. PW2 is Tika Ram. He is the driver of TSR in which the ephedrine was carried. He deposed that on 15.06.2013 at about 2.00 p.m., when he was coming from the back side of Tis Hazari Court with his TSR, two persons gave him signal to stop near Rajender Market. He stopped his TSR. They loaded their goods i.e. four bundles of cartons and four plastic bags and there was one other packet inside a gunny bag(bori). One person sat with him and another at the back side of TSR. Two bags were handed over to one blackish complexion person in the Market of Tilak Nagar. From there, they reached at Laxmi Nagar mother dairy at around 8.15 p.m. At Bikaner Sweet, one person met them and one black bag and one black polythene were handed over to the said person. Police surrounded the said person. He does not know what was kept in the said bag and polythene. Three samples were taken by the police and converted into pullandas. From his vehicle, nine bags/cartons were unloaded and two samples each were taken out and total 18 samples were taken from the nine bags/cartons. This witness has failed to identify any of the accused present in the Court. He was declared hostile by the prosecution and cross examined by the Ld. Addl.PP for the State wherein he admitted the suggestions put by the Ld. Addl.PP.

14. PW3 is SI Gian Chand. He is the SO to ACP. He deposed about receipt of DD no.12 in the office of ACP vide diary no.1362 and 1363. The original DD is Ex.PW3/A and secret FIR No. 25/2013 State Vs. Arther Frank etc. Page No.15 of 66 information is Ex.PW3/B. On 16.06.2013 information was received in the office vide Diary no.1364, the original information is Ex.PW3/C. He further deposed that two reports u/s 57 NDPS Act were received vide diary no.1365 and 1366 regarding seizure of 340 Kgs Ephedrine and arrest of two accused. He produced the same before ACP. The report u/s 57 NDPS Act is Ex.PW3/D and Ex.PW3/E. On 22.06.2013 report u/s 57 NDPS Act was received vide Diary no.1420 regarding seizure of 30 Kgs ephedrine, the same is Ex.PW3/F. The copies of entries in diary register are E.PW3/H to Ex.PW3/M.

15. PW4 is Bal Kishan. He is the witness from Transport Company. He deposed that on 31.05.2013, one person came to his office and booked four bags and two drums having chemicals. The same was booked in the name of Raj Chemical for Hapur vide bilty no. 761, the photocopy of the bilty is mark 4/A. He further deposed that as the delivery was not taken by anybody in Hapur, the same were returned back on 15.07.2013. Hapur office informed them that the party contacted them and asked to send back the parcels. One person alongwith same person who had booked the articles came to his office on 16.07.2013 and taken back the four bags and two drums in an auto. Accused who had booked the parcel is not present in the court today.

16. PW5 is SI Sandeep Kumar. He joined the investigation FIR No. 25/2013 State Vs. Arther Frank etc. Page No.16 of 66 with Insp. Attar Singh and staff and reached at Bhagirath Palace. They reached at Bansal Pharma at the instance of accused Mehboob Khan who pointed at a persons stating that he is Sandeep Bansal.IO disclosed the identity of the raiding team to him. Notice u/s 50 NDPS Act was served to him and he was explained about his legal rights but accused refused to avail the same. Notice u/s 50 NDPS Act is Ex.PW5/A and refusal of the accused is ex.PW5/B. Non­ recovery memo of personal search of accused is Ex.PW5/C. Search of the shop of accused was conducted and from the right side from the gate of the shop, one rexine bag was recovered. It was found containing two polythene bags containing white colour powder. On weighing, the weight of each polythene was found to be 10 Kgs each. On testing the same on field testing kit, it was found to be ephedrine. He further deposed that IO took two samples of 25 grams each from the polythenes and given mark M1 and M2 and N1 and N2. Remaining ephedrine was also converted into pullandas and given Mark M and Mark N. Seal of ASY was put on all the pullandas. Form FSL was filled and the pullandas were seized vide memo Ex.PW5/D. He further deposed that accused Sandeep Bansal was arrested vide arrest memo Ex.PW5/E and his personal search was conducted vide memo Ex.PW5/F. Two mobile phones make Carbon and Nokia were seized from him vide seizure memo Ex.PW5/G. His disclosure statement Ex.PW5/H was recorded. He deposed that accused Sandeep disclosed that 20 Kgs ephedrine was supplied by one person namely Krishan Kumar who would come to FIR No. 25/2013 State Vs. Arther Frank etc. Page No.17 of 66 supply 10 kgs ephedrine to him at about 6/6.15 p.m near SBI, Moti Cinema. The site plan of the place of recovery from accused Sandeep Bansal is Ex.PW5/I. He further deposed that all the team members reached at State Bank of India and at about 6.15 p.m, one person was found coming from Fatehpuri side and on the pointing out of accused Sandeep Bansal he was apprehended. On enquiry, his name came to be known as Krishan Kumar. He was carrying a multi colour bag in his right hand. He disclosed about the identity of police officials. Notice u/s 50 NDPS Act was served upon him. He refused to avail his legal rights. The notice u/s 50 NDPS Act is Ex.PW5/J and refusal of accused is Ex.PW5/K. The multi colur bag was taken from the accused and it was found containing a black colour polythene, containing one transparent polythene which was containing white colour powder which was tested on field testing kit and it was found to be ephedrine. On weighing, it was found to be 10 Kgs. Two samples of 25 grams each were drawn and remaining ephedrine was also converted into pullanda. Both the samples were given Mark O1 and O2 and remaining ephedrine was given Mark O. Form FSL was filled a the spot. All the pullandas were sealed with the seal of ASY and same seal was affixed on form FSL. Articles were seized vide seizure memo Ex.PW5/L. He was handed over the seal again. He further deposed that accused Krishan Kumar was arrested vide memo Ex.PW5/M and his personal search was conducted vide memo Ex.PW5/N. Three mobile phones make Le­ phone, Samsung and G­nine were seized from accused vide memo FIR No. 25/2013 State Vs. Arther Frank etc. Page No.18 of 66 Ex.PW5/O. Disclosure statement of accused was recorded which is Ex.PW5/P. He further deposed that case property was produced before the SHO. He deposed that on 02.07.2013, Insp. Attar Singh prepared two CDs of intercepted calls from computer system installed in the office of Special Cell, one CD was made for intercepted calls between Sandeep Bansal and Drona and another for intercepted calls between Sandeep Bansal and Krishan Kumar, the same were given Mark Q1 and Q2 and sealed in an envelope with the seal of ASY and seized vide memo Ex.PW5/Q. He returned the seal on 28.06.2013. He further deposed that on 30.07.2013 some documents were seized from Mohan Lal Bansal, father of accused Sandeep Bansal, vide seizure memo Ex.PW5/R.

17. PW6 is Jallaluddin. He is the clerk from Sondhi Transport. He deposed that his associate Bal Kishan had booked two drums and four bags vide bilty no. 761. The same were returned after 15 days from Hapur and the goods were released to a boy and old person. The receipt s Ex.PW6/A.

18. PW7 is Naresh Tyagi. He is the witness from Janta Golden Transport, Hapur. He deposed that on 01.06.2013, two drums and four bags came to the office and on 14.06.2013, one healthy boy came to the Hapur office and asked to send back the goods to Delhi. He issued bilty no.833 and sent the goods back on 14.06.2013. The bilti book was seized vide seizure memo FIR No. 25/2013 State Vs. Arther Frank etc. Page No.19 of 66 Ex.PW7/A. The copy of the bilty is Ex.PW7B and original bilty book is Ex.PW7/C. The other record is Ex.PW7/D to Ex.PW7/I.

19. PW8 is Sonu Sodi. He is the owner of Sodi Roadlines and Janta Golden Transport. He deposed that their office at Hapur received the goods about 265­275 Kgs which kept on lying there. After 14 days, one person came and asked to send back the goods to Delhi. He alongwith his muneem had gone to Special Cell office on 20.06.2013 and handed over the documents pertaining to this case.

20. PW9 is Noor Alam. He deposed that on 24.06.2013, he had come at Madhuban Chowk and joined the investigation with IO and reached at FSL, Rohini. He further deposed that IO got recorded the samples of voice of accused Sandeep Bansal and Krishan Kumar in audio cassettes and that four cassettes were seized vide seizure memo Ex.PW9/A.

21. PW10 is HC Suresh Kumar. He is the member of raiding team. He deposed that SI Rakesh Kumar received the secret information regarding carrying of ephedrine in three wheeler no. DL 1LQ 3702 in between 2.00 p.m to 4.00 p.m by the members of international Narcotic Drug gang. The information was given to senior officers and secret informer was produced before Insp. Attar Singh who made enquiries and informed ACP Satbir Singh Dagar who directed to conduct the raid. SI Rakesh Kumar organized a FIR No. 25/2013 State Vs. Arther Frank etc. Page No.20 of 66 raiding party consisting of ASI Prabodh, ASI Shamsher, ASI Bhushan, HC Rajbir, Ct. Sandeep and he himself and they proceeded to the spot in govt vehicle no. DL 1CJ 3566 driven by HC Rajbir and vehicle no. DL1CM 1346 driven by Ct. Sandeep. They waited till 6 p.m at the spot but the TSR had not come and thereafter, the secret informer gathered the information from his source and told SI Rakesh that Memboob Khan alongwith his associates would come in the said three wheeler loaded with ephedrine for supply to Nigerian person near Bikaner Sweets on road from Laxmi Nagar Chowk to Mother dairy in between 8 pm to 9 pm. The said information was recorded by SI Rakesh on a paper and reached at the Laxmi Nagar. He further deposed that at about 8.15 p.m., one Nigerian person came from mother dairy side and took position near Bikaner Sweets. The secret informer pointed out the said person as Arther Frank. After 10 minutes, a three wheeler no. DL 1LQ 3702 came from Laxmi Nagar Side and took U turn and stopped at the distance of 10 to 15 steps away. The said Nigerian person went towards the three wheeler. One person was sitting at the driving seat and another besides the driver seat. One was there at the back side of the three wheeler. Accused Arther Frank talked to the person sitting at the back side of the three wheeler. The secret informer identified the persons sitting at the backside of three wheeler as Mehboob and the person sitting besides the driver seat as Drona. He further deposed that the person sitting at the back side of three wheeler got down and handed over one FIR No. 25/2013 State Vs. Arther Frank etc. Page No.21 of 66 military colour pithu bag and one back colour polythene to Nigerian person. Raiding party apprehended the accused persons, whose names came to be known as Mehboob Khan, Arther Frank and driver of the vehicle was Tika Ram and the person siting besides the driver seat was Drona, who succeeded to escape. On interrogation, it was revealed that goods were brought from Rajender Market, Tis Hazari Court. Tika Ram told that one packet was delivered on the way to one African. He also told that he was not aware about the contents of the packets. SI Rakesh introduced the accused persons to the members of the raiding party and told about the information. They were also told about their legal rights and served notices u/s 50 NDPS Act upon them. The notice given to accused Arther Frank is Ex.PW2/A and reply of accused is Ex.PW10/A. The notice served to accused Mehboob Khan is Ex.PW2/B and his reply is Ex.PW10/B. He further deposed that SI Rakesh Kumar took the pithu bag and the black colour polythene from accused Arther Frank and checked the same. On checking, the pithu bag, two transparent polythene containing white colour powder were found. The same were given serial no.A and B. Black colour polythene was also found containing the similar powder and it was given Serial No.C. The said powder was tested on filed testing kit and it was found to be ephedrine. On weighing, Mark A and B were found to be 12.5 Kgs each and Mark C was found to be 25 Kgs. Two samples of 25 grams each were taken from the three polythenes Mark A, B and C. and given sr.no. A1, A2, B1, B2 and C1, C2. The FIR No. 25/2013 State Vs. Arther Frank etc. Page No.22 of 66 same converted into pullandas. Parcel A and B were also converted into pullandas. FSL form was filled up and all the pullandas and FSL form were sealed with the seal of RK and the same were seized vide seizure memo Ex.PW2/C. He further deposed that SI Rakesh took the search of TSR no.DL 1LQ 3702 in which four drums made of hard gatta, four plastic katta of white colour and one tat bori in which drum made up of hard gatta were found which were given Mark D,E,F and G. The white kattas were given Mark H,I,J and K. The same were found containing white powder. Hard gatta drum kept in a tat bori was checked and found containing one black colour polythene which was marked L. Each Mark D,E,F and G were weighed and found to be 25 Kgs each and and four transparent polythenes containing white colour substance ephedrine Mark H,I,J and K was found 35 Kgs each and the black colour polythene and tat bori Mark L was found to be 50 Kgs. Two samples of 25 grams each were drawn from the said emphedrine and were given mark D1, D2 to L1, L2. Eighteen pullandas were prepared. Remaining ephedrine was also converted into pullanda. Thereafter, SI Rakesh filled up the form FSL and seal of RK was affixed on it as well as pullandas and the same were seized vide memo Ex.PW2/D. Seal after use was handed over to PW Tika Ram. TSR no.DL 1LQ 3702 was seized vide seizure memo Ex.PW2/E. He further deposed that SI Rakesh Kumar prepared the rukka and handed over the same to him with direction to produce the same before duty officer and hand over 36 parcels, two FSL forms and carbon copy of seizure memo alongwith FIR No. 25/2013 State Vs. Arther Frank etc. Page No.23 of 66 one fauzi colour pithu bag before SHO. He went in vehicle no.DL1CM 1346 driven by Ct. Sandeep. He got the case registered and SHO deposited the case property in malkhana. He further deposed that accused Arther Frank was arrested vide memo Ex.PW2/F, his personal search was conducted vide memo Ex.PW2/G. Accused Mehboob Khan was arrested vide memo Ex.PW2/H and his personal search was conducted vide memo Ex.PW2/I. He further deposed that they went to the house of accused Arther Frank from where some documents were seized vide memo Ex.PW10/C.

22. PW11 is Nanni. She deposed that mobile no.7827766177 was never got issued by her. On showing the photograph on the application form, she stated that the photograph is not of her. Her son Momin had got issued the mobile number and at that time she gave the photocopy of the Voter I­Card.

23. PW12 is Anuj Bhatia, Nodal Officer from Vodafone. He deposed that ownership details of mobile no. 8447022458 was provided vide letter dated 27.06.2013 Ex.PW12/B in response to notice Ex.PW12/A. The CDRs from 25.03.2013 to 15.06.2013 is Ex.PW12/C. IO seized the same vide memo Ex.PW12/D. Customer application form is Ex.PW12/E, supporting documents is Ex.PW12/F and certificate u/s 65B is Ex.PW12/G. He also provided the details of mobile no.9819335697, 9654069165 and 8676953116. FIR No. 25/2013 State Vs. Arther Frank etc. Page No.24 of 66 The CDRs are Ex.PW12/J1 to J5. Roaming CDRs were also provided which are Ex.PW12/J6 to J9. Supporting documents are Ex.PW12/K1 and Ex.PW12/K2, certificate u/s 65B is Ex.PW12/L1 and L2, CAF of mobile no.8376953116 is Ex.PW12/M1 and M2 and CAF of mobile no.9654069165 is Ex.PW12/N1 and N2. ID Chart of vodafone Delhi Network is Ex.PW12/O1 to Ex.PW12/O112.

24. PW13 is Raj Kumar Adhikari. He deposed that he never used mobile no. 8595495274. On seeing the CAF Mark PW13/A, he stated that he never applied for the said connection and this his signatures are not on the said document. He stated that alternate mobile no. 9910061977 belongs to him which is mentioned on Mark PW13/B.

25. PW14 is Harmandeep Singh. He deposed that he never got issued mobile no.8447022458. He does not know any person by the name of Prince or any Nigerian race.

26. PW15 is SI B.B.Gorang. He is the witness who took 12 sealed parcels to FSL Rohini vide RC no.118/21 on 21.06.2013. He also took the three parcels on 28.06.2013 vide RC No. 123/21. After deposit of parcels, he deposited the receipt with MHCM. He further deposed that on 03.07.2013, he received four envelopes in sealed condition mark Q1 and Q2 sealed with the seal of ASY and FIR No. 25/2013 State Vs. Arther Frank etc. Page No.25 of 66 S1 and S2 sealed with the seal of RS and one FSL form vide RC no.124/21 and deposited the same in FSL. The photocopy of RCs are Ex.PW15/A to Ex.PW15/C. Departure entries made by him are Ex.PW15/D and Ex.PW15/E. Copy of DD no.2 and 21 are Ex.PW15/F and G and copy of DD no.5 and 28 are Ex.PW15/H and Ex.PW15/I.

27. PW16 is Mohd. Nasim Azam from Hotel Alharam. He deposed that on 27.05.2013, one person namely Mehboob Khan aged about 65­68 years came and he was alloted room no. 207 and at that time he produced his passport as identity proof. He had seen him in the hotel till 15.06.2013 at around 11 a.m ­12 noon. Thereafter, he did not return for 2­3 days. On 19.06.2013, some police officials came from Special Cell who told that Mehboob Khan has been arrested by them. On 23.07.2013, he handed over the xerox copy of passport and entry made in register to the police. The photocopy of register is Ex.PW16/A, xerox copy of the passport is Ex.PW16/B.

28. PW17 is SI Raj Singh. He joined the investigation on 17.06.2013 with Insp. Attar Singh when supplementary disclosure statements of accused Arther Frank and Mehboob Khan were recorded, the same are Ex.PW17/A and Ex.PW17/B. On 17.06.2013, Jalaluddin, employee of Sodhi Transport came in their office and handed over document which were seized vide memo Ex.PW17/C FIR No. 25/2013 State Vs. Arther Frank etc. Page No.26 of 66 and Ex.PW7/H ad Ex.PW6/A. On 19.06.2013, he went to Hotel Alarm and took search of Room no.207 but nothing was found, none recovery memo is Ex.PW17/D. On 20.06.2013, Sonu Sodhi came and produced the documents which were seized vide memo Ex.PW7/A. He is also the witness of investigation conducted on 21.06.2013 i.e. recovery effected from accused Sandeep Bansal and Krishan Kumar. He deposed in this respect on the lines deposed by PW5 SI Sandeep Kumar.

29. PW18 is Dr. Anjishnu Prakash. He deposed that he never registered any company in the name of Anupam Pharma from B­143 PC Colony Kankar Bagh, Patna. Someone has misused his address.

30. PW19 is SI Abhay Narain. He took accused Sandeep Bansal and Krishan Kumar to FSL for taking voice samples. He deposed that on the way one Noor Alam agreed to join the investigation. He deposed that the FSL officials recorded the sample voice of accused Sandeep Bansal according to the transcript prepared on the basis of intercepted calls on the computer installed in special cell office. He further deposed that similarly sample voice of accused Krishan Kumar was recorded. The cassettes in respect to accused Sandeep Bansal was given Mark S1 and S2 and in respect accused Krishan Kumar were given Mark S3 and S4. The same were sealed and seal after use was handed over to PW Noor Alam and FIR No. 25/2013 State Vs. Arther Frank etc. Page No.27 of 66 seized vide seizure memo Ex.PW9/A. The cassettes were deposited in the malkhana .

31. PW20 is Rajendra Singh Sehrawat. He was working as SHO on 21.06.2013. he deposed that Insp. Attar Singh handed over him 9 pullandas Mark M1, M2, M, N1, N2, N, O1, O2 and O sealed with the seal of ASY, two FSL forms and two carbon copy of seizure memo. He called the MHCM M Bakshala and handed over all the pullandas, FSL forms and seizure memos to him who made entry in register no.19. He recorded DD no.7 Ex.PW20/A, the copy of entry is Mark PW20/A.

32. PW21 is SI Rakesh Kumar. He is the first IO. He deposed on the lines as deposed by PW10 HC Suresh.

33. PW22 is SI M.Baxla. He is the MHCM. He deposed that on 16.06.2013, he was called by Insp. D.K.Sharma in the ofifce where 36 parcels were handed over to him. He made entry in register no.19. The entry is Ex.PW22/A. He also made entry regarding deposit of three mobile phones by Insp. Attar Singh vide entry Ex.PW22/B. On 20.06.2013, he made entry regarding deposit of four registers vide entry Ex.PW22/C. He further deposed that on 21.06.2013, Insp. Rajender Singh Sehrawat called him and deposited 9 parcels against which he made entry Ex.PW22/D. He further deposed that Insp. Attar Singh deposited five mobile phones FIR No. 25/2013 State Vs. Arther Frank etc. Page No.28 of 66 and he made entry in register no.19 Ex.PW22/E. He also made entry no.2141 Ex.PW22/F regarding deposit of four parcels, entry no.2145 Ex.PW22/G regarding deposit of two parcels Q1 and Q2,entry no.2163 Ex.PW22/H regarding deposit of one parcel, entry regarding sending the case property to FSL vide RC no.118/21 Ex.PW22/J, its receipt Ex.PW22/K, RC no.123/21 Ex.PW22/L copy of receipt Ex.PW22/M, RC no.124/21 Ex.PW22/N, copy of receipt Ex.PW22/P and copy of RC no.150/21 Ex.PW22/Q copy of receipt is Ex.PW22/R.

34. PW23 is Surender Kumar. He is the Nodal Officer from Bharti Airtel Ltd. He had produced the CAF, CDRs of mobile no.9313362105 and 9810084137 I the name of Mohan Lal Bansal and Sandeep Bansal respectively. The documents are Ex.PW23/B and C and the CDRs from 25.05.2013 to 15.06.2013 are Ex.PW23/B and Ex.PW23/D. The certificate u/s 65­B of IE Act is Ex.PW23/E.

35. PW24 is Shishir Malhotra. He is the Nodal Officer from Aircel Ltd. He produced the CAF and CDRs of mobile no.7503059362 and 7503083972. The related documents are Ex.PW24/A to Ex.PW24/J.

36. PW25 is Rajeev Ranjan. He is the Nodal Officer from Tata Tele Services Ltd. He produced the CAF and CDRs of mobile no. 9045764082, 8266802098. The related documents are FIR No. 25/2013 State Vs. Arther Frank etc. Page No.29 of 66 Ex.PW25/A to Ex.PW25/J.

37. PW26 is Joginder Kataria. He deposed that the interception record of telephones pertaining to FIR no.25/13 has been destroyed.

38. PW27 is ACP Satyavir Daggar. He deposed that Insp. Attar Singh called him up on 15.06.2013 and informed about the secret information. On 16.06.2013, documents Ex.PW3/A to Ex.PW3/C were produced before him and he signed the same. He further deposed that report u/s 57 NDPS Act were produced before him which he signed, the said reports are Ex.PW3/D and Ex.PW3/E.

39. PW28 is Insp. Dinesh Kumar Sharma. He is the then SHO. He deposed that 36 sealed pullandas were produced before him alongwith two FSL forms and two carbon copy of seizure memos. He put his seal of DKS on the pullandas and FSL form. He handed over the parcels alongwith FSL form and seizure memo to MHCM who deposited the same in the malkhana. The copy of register no.19 is Ex.PW22/A and copy of DD no.12 is Ex.PW28/A.

40. PW29 is SI Jitender Tiwari. He deposed that on 05.07.2013, he had gone to Patna and he recorded the statement u/s 161 Cr.P.C of Dr. Ajinshu Prakash.

FIR No. 25/2013 State Vs. Arther Frank etc. Page No.30 of 66

41. PW30 is HC Padma Kumar. He is the witness from FRRO. He deposed that no information regarding arrival and departure of accused Arther Frank could be traced. The report is Ex.PW30/A.

42. PW31 is Insp. Rupesh Kumar. He furnished the details regarding accused Arther Frank to Insp. Attar Singh vide letter Ex.PW31/A. He also handed over the copy of Judgment dated 30.05.2009 alongwith other relevant documents vide letter Ex.PW31/B. The copy of sentence is Ex.PW31/C.

43. PW32 is Yogesh Tripathi. He is the witness from Reliance Communication. He produced details of Mobile no.7827766177 and 8595495274. The relevant documents and CDRs are Ex.PW32/A to Ex.PW32/L.

44. PW33 is Insp. Attar Singh. He is the IO of this case. He deposed on the lines of PW21 SI Rakesh and PW5 SI Sandeep Kumar. He deposed more or less the same as mentioned in the brief facts of the case and the same is not being repeated here for the sake of brevity.

45. Statements of accused persons u/s 313 Cr.P.C were recorded wherein all the accused persons have stated that they are innocent. They have been falsely implicated in the present case. FIR No. 25/2013 State Vs. Arther Frank etc. Page No.31 of 66 Accused Arther Frank stated that on 15.06.2013 at about 7.30 p.m., he came down from Gate no.3 of Laxmi Nagar Metro Station and was walking towards his residence at S­594, School Block, Laxmi Nagar about five persons from behind came and held him and said to him Mr. King, "you are to be arrested". After few minutes, one man whose name came to be known later on as Insp. Attar Singh, drove him in his Maruti car alongwith another person to Sector ­6 Rohini to a police station. At about 1.00 O'clock, they asked him about his residence after beating him for sometime. He told them his address and that he has no knowledge why they had apprehended him. He was taken to his residence by those police officials and they thoroughly searched his house but nothing incriminating could be recovered. They took money around Rs.22,000/­ from his house but they wrote only Rs.712/­. They also took away foreign currency of USD 1200. He had also 200 USD and Rs.40/­ (coins) in his pocket and they also took away the same with them alongwith his metro card. On the next day i.e. 16.06.2013, he requested those officers to let him call his embassy but they refused. He also requested to let him call his family but they refused. For 9 days during PC remand, he was confined and tied with a wall with iron chain and only allowed to go to the washroom. He was beaten in their office and made to sign many blank documents in the office. Nothing has been recovered from his possession or at his instance. Accused Krishan Kumar stated that he was forcibly taken to the office at Rohini and was tortured and made to sign on many blank papers a well as two FIR No. 25/2013 State Vs. Arther Frank etc. Page No.32 of 66 semi written papers. He was never allowed to read those two semi written papers. He signed all the papers to save his life. Accused Sandeep Bansal stated that he was taken by the police officials on 21.06.2013 at about 3.45 p.m to their Rohini office in context of some enquiry and there he was forcibly made to sign few blank papers and some written papers. Nothing was recovered from him or from his office or from his possession. Accused Arther Frank did not lead any defence evidence. However, accused Krishan Kumar and Sandeep Bansal led the defene evidence.

46. Accused Sandeep Bansal examined DW1 Deepak Bansal who stated that that on 21.06.2013, two persons came in civil dress in Bansal Pharma and they talked to Sandeep Bansal and took Sandeep with them. The said persons did not allow Sandeep to talk to him. DW2 is Bablu Mishra. He also deposed that two persons came and took Sandeep Bansal with him. DW3 is Arvind Kumar. He also deposed similarly

47. Accused Krishan Kumar examined DW4 Vimal Pandey. He deposed that on 21.06.2013, on hearing some sound, he came out from his shop and saw some pesrons in the shop using unparliamentary langauge against Krishan Kumar. They forcibly took accused Krishan Kumar with them. DW5 is Vinod Kumar. He also deposed regarding taking accused Krishan Kumar by few persons who came in civil dress.

FIR No. 25/2013 State Vs. Arther Frank etc. Page No.33 of 66

48. Arguments have been heard from the Ld. Addl. PP as also from the Ld.Counsel for accused. Ld. Addl.PP has argued that the recovery witnesses examined by the prosecution have proved the recovery of huge quantity of ephedrine from all the three accused persons. All the relevant provisions of NDPS Act have been duly complied with. The witnesses including public witnesses have supported the prosecution case. FSL result confirms that the recovered substance was ephedrine. It is therefore, argued that the prosecution has been able to prove its case against the accused.

49. Ld. Counsel for accused Krishan Kumar argued that the accused has been falsely implicated in this case. No recovery has been effected from him. He further argued that the prosecution has failed to comply the provisions u/s 41 and 42 of NDPS Act in the present case. No warrant for search of the vehicle was procured. He submits that it was mandatory on the part of IO to take the search warrant since contraband was being carried in TSR and the recovery was effected between sunset and sunrise. Ld. Counsel relied upon the case law titled State of Rajasthan Vs. Chhagan Lal 2014(4) JCC (Narcotics) 213, State of Rajasthan Vs. Jagraj @ Hansa (2016) VII AD (SC) 256 in this respect. Ld Counsel further argued that the DD qua secret information is manipulated and fabricated. He argued regarding the time of receipt of information and hiring of TSR and submits that the entire case of the prosecution is doutful.He FIR No. 25/2013 State Vs. Arther Frank etc. Page No.34 of 66 relied upon the case law Jamesh Eazy Franky Vs DRI 2012(3) JCC (Narcotics) 81. Ld. Counsel further argued that the prosecution has failed to comply the provisions of Section 50 of NDPS Act. He submits that none of the accused was produced by the IO before any Gazetted Officer/Magistrate. He relied upon the Judgment Arif Khan @ Agha Khan Vs. State of Uttrakhand 2018(2) RCR (Criminal) 931. Ld. Counsel further argued that the prosecution has failed to join any independent witness in the investigation. He relied upon the case law Bahadur Singh Vs. State of M.P. & Anr 2002 (1) JCC, Gunesh Kumar Vs. State 2016 VII A.D (Delhi) 249, Ritesh Chakravorty Vs. State of M.P. 2007(1) JLJ 239, Inder Dev Yadav & Ors. Vs. State Crl.A 541/2011 and Naresh Kumar @ Nitu Vs. The State of Himachal Pradesh. Ld. Counsel further submitted that the FSL reported that data was insufficient with regard to the voice sample of accused Krishan Kumar. He further submits that the records were of earlier date i.e. prior to the disclosure statement of the accused. He pointed out various contradictions in the testimonies of the witnesses and stated that IO has admitted that he had two seals and that thus, there is possibility of misuse of the seal.

50. Ld. Counsels for accused Arther Frank and Sandeep Bansal have also argued the similar point. Ld. Counsel for accused Sandeep Bansal additionally submitted that call interception has not FIR No. 25/2013 State Vs. Arther Frank etc. Page No.35 of 66 been proved by the prosecution beyond reasonable doubt. The invoice is a fabricated one as the product mentioned is non IP product for which Buyer's licence check is not required. The allegations of the prosecution is that no person took the delivery of the product in the invoice at Bihar which is also belied on the fact that it is clearly mentioned in the invoice that cash has been received. Ld. Counsel argued that there is contravention of Rule 4 of the Narcotics Drugs and Psychotropic Substances (regulation and controlled substances) order 2013. Ld Counsel has drawn the attention of the Court on the said section and submitted that on this score alone, the accused persons are entitled for acquittal.

51. In the present case, PW21 SI Rakesh is the first IO and PW10 HC Suresh was with him. PW2 Tika Ram was the TSR driver in which the ephedrine was transported. PW33 Insp. Attar Singh is the second IO PW5 SI Sandeep and PW17 SI Raj Singh were with him. PW21 SI Rakesh Kumar received the secret information which he noted on plain paper Ex.PW3/B. He recorded DD no.12 Ex.PW3/A and gave the same to Insp. Attar Singh. Insp.Attar Singh gave information to ACP Satyavir, who gave directions to conduct the raid. PW21 constituted a raiding party and reached at the spot. He deposed that at about 8.15 p.m., one Nigerian was seen coming from mother dairy side and he stopped near Bikaner Sweets and started waiting. He was identified by the secret informer as Arther Frank. After about 10 minutes a three wheeler was seen coming FIR No. 25/2013 State Vs. Arther Frank etc. Page No.36 of 66 from Laxmi Nagar Chowk side. It stopped at Bikaner Sweets. The person sitting at the back seat got down and gave one pitthu bag of military colour and one black polythene to Arther Frank. Secret informer told that the person sitting with driver was Drona and the person sitting at the back of the TSR was Mehboob Khan. Accused Mehboob Khan and Arther Frank were apprehended and Drona managed to run away. TSR driver Tika Ram was interrogated. The accused persons were told about the secret information. They were explained about their legal rights. Notices u/s 50 NDPS Act were given to accused Arther Frank and Mehboob Khan. The notices are Ex.PW2/A and Ex.PW2/B respectively and the replies of accused are Ex.PW10/B and Ex.PW10/C. Two polythenes were recovered from the pitthu bag which were given Mark A, B and C. Each was found containing 12.5 kgs ephedrine. Two samples from each polythene were drawn and given Mark A1, A2, B1, B2 and C1 and C2. Remaining ephedrine was also converted into pullanda. Form FSL was filled at the spot. All the pullandas were sealed with the seal of RK and seized vide seizure memo Ex.PW2/C. The articles in three wheeler were checked. Four drums were found there. White colour powder was found containing in transparent polythenes. There was also one gunny bag in the TSR which had a cardboard drum in it. Drums were given mark D,E,F,G and four bags were given Mark H,I,J,K and polythene recovered from funny bag was given mark L. The power was found to be ephedrine on testing with field testing kit. Each bag was found containing 25 Kgs ephedrine, FIR No. 25/2013 State Vs. Arther Frank etc. Page No.37 of 66 two samples of 25 grams each were drawn and given mark D1, D2, E1, E2, F1, F2, G1 and G2. Mark H,I,J & K was weighed and found to be 35 Kgs each. Two sample from each was drawn and given Mark H1, H2, I1, I2, J1, J2 and K1 and K2. Mark L was weighed and it was found to be 50 Kgs. Two samples Mark L1 and L2 were drawn and all the parcels were sealed with the seal of RK. FSL form was filled and pullandas were seized vide seizure memo Ex.PW2/D. TSR was seized vide memo Ex.PW2/E. He prepared the rukka Ex.PW21/A and handed over to HC Suresh alongwith FSL form and two carbon copies of seizure memos with direction to hand over the rukka to duty officer and the case property and documents to SHO.

52. PW33 is Insp.Attar Singh. He reached at the spot after apprehension of accused Arther Frank and accused Mehboob Khan (Since expired). He prepared the site plan Ex.PW33/A and arrested the accused Arther Frank vide arrest memo Ex.PW2/A and conducted his personal search vide memo Ex.PW2/G. He deposed that in the personal search of accused Arther Frank one carbon copy of notice u/s 50 NDPS Act, cash of Rs.725/­ alongwith other articles were recovered. He recorded the disclosure statement of accused which is Ex.PW2/J. He seized two mobile phones from accused Arther Frank vide memo Ex.PW2/C. He deposited the personal search articles of accused in the malkhana. On 19.06.2013, he interrogated Jalaludeen, an employee of Sodhi Roadlines, who FIR No. 25/2013 State Vs. Arther Frank etc. Page No.38 of 66 handed over the copy of bilti no. 761 dated 31.05.213 Ex.PW7/D, copy of luggage movement register and receipt no.1579 Ex.PW6/A which were seized vide seizure memo Ex.PW17/C. On 20.06.2013, Sonu Sodhi, owner of Sodhi Transport and Golden Transport Company came to the office of Special Cell after summon and handed over four registers of transport company having relevant details of bilti register, goods movement register receipt register which were seized vide memo Ex.PW7/A. The said articles are Ex.PW17/Article­1 to Ex.PW17/Article­4. On 16.06.2013, he prepared the report u/s 57 NDPS Act Ex.PW3/E and forwarded the same to ACP concerned. He also forwarded report u/s 57 NDPS Act Ex.PW3/D prepared by SI Rakesh to ACP. He recorded the supplementary disclosure statement Ex.PW17/B of accused Arther Frank on 17.06.2013. He further deposed that as per disclosure statement, they went to Bhagirath place at the shop of accused Sandeep Bansal. After introducing to accused, he was explained about his legal rights. Notice u/s 50 NDPS Act was served upon him which is Ex.PW5/A and reply of the accused is Ex.PW5/B. On search of the shop, a rexine bag was recovered which was found containing a black polythene having two transparent polythenes, each having white colour powder. On checking with field testing kit, it was found to be an ephedrine. On weighing, each polythene was found to be 10 Kgs. Two samples Mark M1 and M2 and N1 and N2 were drawn from each polythene and the remaining ephedrine was also converted into pullanda and given Mark M. All the parcels were FIR No. 25/2013 State Vs. Arther Frank etc. Page No.39 of 66 sealed with the seal of ASY and same seal was affixed on FSL form. The same were seized vide seizure memo Ex.PW5/D. Accused Sandeep Bansal was arrested vide memo Ex.PW5/E and his personal search was conducted vide memo Ex.PW5/F. On samsung mobile was recovered from his which was seized vide seizure memo Ex.PW5/G. He further deposed that as per disclosure statement of accused Krishan Kumar was apprehended from near SBI Bank infront of Espland Road, Chandani Chowk. He was explained about his legal rights and notice u/s 50 NDPS Act Ex.PW5J was served upon him. Refusal of accused is Ex.PW5/K. Accused was found carrying a bag. On checking 10 Kgs ephedrine was found in it. Two samples of 25 grams each were drawn and converted into pullandas and given Mark O1 and O2 and remaining ephedrine was given Mark O. All the parcels were sealed with the seal of ASY. Form FSL was filled and same seal was affixed on it. Accused Krishan Kumar was arrested vide memo Ex.PW5/M and his personal search was conducted vide memo Ex.PW5/N. Three mobile phones were received from accused which were seized vide seizure memo Ex.PW5/O. Disclosure statement of accused is Ex.PW5/P. He deposited the case property in the malkhana. He prepared report u/s 57 NDPS Act Ex.PW3/F. The copies of DD entries are Ex.PW33/B to Ex.PW33/E. On 21.06.2013 and 24.06.2013, case property was got deposited in the malkhana. He further deposed that three incriminating voice calls were intercepted upon mobile phone of accused Sandeep Kumar which were copied on CD and given mark FIR No. 25/2013 State Vs. Arther Frank etc. Page No.40 of 66 Q1 and Q2 and seized vide memo Ex.PW5/Q. Transcript of the conversation running in 8 pages is Ex.PW33/F. Voice samples ofhte accused was taken at FSL Rohini for comparison. He collected the CDRs of the mobiles. The FSL result is Ex.PW33/H, Ex.PW33/J and Ex.PW33/K. He got conducted the proceedings u/s 52­A NDPS Act. PW5 SI Sandeep and PW17 SI Raj Singh deposed similarly on the lines of PW33 and PW10 HC Suresh deposed similarly on the lines of PW21.

53. As per DD no.12/secret information, accused alongwith his associate would load the ephedrine from a transport company at Tis Hazari area in three wheeler no. DL 1LQ 3702. The said information was received at about 11.00 a.m. Thus, as per the case of the prosecution, police officials were aware that the ephedrine will be transported in vehicle no. DL 1LQ 3702. Adverting to the testimony of PW2 Tika Ram (driver of the said TSR), he stated that on 15.03.2013, it was about 2.00 p.m, when he was coming from the back side of Tis Hazari Court with his TSR, two persons gave him signal to stop near Rajendera Market. He stopped his TSR. They told him that they wanted to go to Tilak Nagar and Laxmi Nagar. They asked him regarding the fare and he charged Rs.700/­. They loaded their goods in his TSR. The statement of PW2 Tika Ram who is the driver of the TSR indicate that his TSR was hired at about 2.00 p.m by two persons randomly near Rajendra Market as he did not state that his TSR was already hired for carrying the FIR No. 25/2013 State Vs. Arther Frank etc. Page No.41 of 66 goods. The information Ex.PW3/B and DD no.12 Ex.PW3/A were recorded at about 11.00 a.m. When the TSR no. DL 1LQ 3702 was hired at 2.00 p.m., it is not understandable as to how the said TSR number was mentioned in the secret information recorded at 11.00 a.m. It seems that the police had no secret information at 11.00 a.m and that the same has been concocted later on as the vehicle in question was randomly stopped by two persons after giving signal to stop near Rajendra Market. This evidence create suspicion in the entire story of the prosecution.

54. DD no.12 Ex.PW3/A shows that accused persons were to come in three wheeler loaded with ephedrine in between 2 p.m to 4.00 p.m at Shantivan Chowk. PW21 SI Rakesh stated that the TSR did not come till 6.00 p.m, so the secret informer called his source and told him at about 6.45 p.m that Mehboob Khan alongwith his associate Drona was likely to pass through Laxmi Nagar Chowk in between 8­9 p.m. The information with regarding to coming of accused was uptill 4.00 p.m. It is admitted fact that TSR did not come till 6.00 p.m. It is not explained as to why the IO did not ask the informer after 4.00 p.m to find out the whereabouts of the accused. No step was taken from 4 p.m to 6.45 p.m. and it is only after 6.45 p.m., information was received that the accused persons would go to Laxmi Nagar. Considering the evidence that no action was taken by the IO from 4.00 p.m to 6.45 p.m., there seems to be some manipulation.

FIR No. 25/2013 State Vs. Arther Frank etc. Page No.42 of 66

55. As per the case of the prosecution, PW21 recorded the secret information on a plain paper wherein it has been recorded that the Mehboob Khan, members of an International gang involved in smuggling of epherine is now in Delhi and that he alongwith his associate Drona would transport ephedrine in huge quantity in three wheeler no. DL1LQ 3702 and would supply the same to Arther Frank r/o Nigeria in between 2 to 4 p.m and would go to Laxmi Nagar via Shantivan Chowk. The said information Ex.PW3/B was recorded at 11.05 a.m by PW21 SI Rakesh. Thereafter, he recorded DD No.12, copy of which is Ex.PW3/A. DD no.12 was therefore recorded by PW21 himself as DD finds mentioned "vakalam SI khud". The prosecution has examined PW1 ASI Devappa who was working as duty officer at the relevant time. As per his statement, he was working as duty officer from 12 midnight to 8 a.m. DD No.12 must have been recorded in the DD register kept in the PS. The prosecution has examined no other witness to prove DD no.12. PW1 ASI Devappa has not deposed even on the basis of record that DD no.12 was recorded in the PS at about 11.05 a.m. He did not produce the relevant DD register. The prosecution has not examined the DD writer working at the relevant time. Copy of DD register where the said information had been recorded could not be proved on record showing that it was recorded by PW21 himself. In view of the above, recording of DD no.12 Ex.PW3/A as also the secret information are doubtful.

FIR No. 25/2013 State Vs. Arther Frank etc. Page No.43 of 66

56. PW31 SI Rakesh apprehended the accused Arther Frank at the spot with the help of raiding team and effected the recovery of ephedrine. PW21 prepared rukka and handed over the same to HC Suresh (PW10) for the registration of the case. PW10 HC Suresh deposed that IO/SI Rakesh prepared the rukka and handed over the same to him alongwith pullandas, FSL form and copy of seizure memo for the registration of the case. The prosecution has examined PW1 ASI Devappa, the then duty officer. He deposed that he received rukka brought by HC Suresh Kumar sent by Insp. Attar Singh. Admittedly, as per the case of the prosecution Insp. Attar Singh is the second IO. Copy of FIR reveals that further investigation of the case was handed over to him. Thus, it is clear that Insp. Attar Singh was not present at the spot at the time of recovery effected from accused Arther Frank. He did not send the rukka to PS but PW1 who recorded the FIR stated that he received the rukka sent by SI Attar Singh. It seems that there are some manipulation in this case or that the proceedings were conducted while sitting in the PS.

57. Ld. Counsel for the accused Sandeep and Krishan Kumar stated that the IO of this case has not associated any public witness in this case at any point of time. Ld. LAC for accused Arther Frank also submitted that except TSR driver in whose TSR the ephedrine was loaded, there is no other public witness in this FIR No. 25/2013 State Vs. Arther Frank etc. Page No.44 of 66 case. He submitted that the testimony of TSR driver is not believable since the ephedrine was transported in his TSR and that he has turned hostile and only admitted the suggestion of the Ld. Addl.PP during cross examination. However, Ld.Addl.PP stated that there is no need to associate any public witness in case the testimonies of police officials are straight forward regarding recovery of ephedrine from the accused. He also submitted that TSR Driver Tika Ram has supported the case of the prosecution. Ld. Addl.PP submitted that testimonies of police officials cannot be disbelieved. Accused Arther Frank was apprehended on the basis of secret information and thereafter on the basis of disclosure statements, accused Sandeep Bansal and accused Krishan Kumar were apprehended. Admittedly, there is no public witness of recovery effected from the accused Sandeep Bansal and Krishan Kumar and all the recovery witnesses are police officials. The place of apprehension of accused Arther Frank is near Bikaner Sweets and place of apprehension of accused Sandeep Bansal and Krishan Kumar is Bhagirath Place/Chandni Chowk, Delhi. The time of apprehension of accused Arther Frank is in between 8.15 p.m - 8.30 pm. Accused Sandeep Bansal was apprehended in between 3.15 p.m

- 4.00 p.m and accused Krishan Kumar was apprehended in between 5.45 p.m - 6.00 p.m. In respect of arrest of accused Arther Frank, police has associated the TSR driver in whose TSR, the ephedrine was carried. There is no other public witness except the said TSR driver. The testimony of PW2 reveals that he has turned FIR No. 25/2013 State Vs. Arther Frank etc. Page No.45 of 66 hostile in this case and on declaring him hostile by the prosecution, he was cross examined by the Ld. Addl.PP wherein he admitted the suggestions put by the Ld. Addl.PP in affirmative. During examination in chief, this witness did not identify accused Arther Frank as the same person who was apprehended by the police at the spot with pithu bag containing contraband. However, during cross examination conducted by the Ld. Addl.PP, he identified accused on the pointing out by Ld. Addl.PP. I have perused the cross examination of this witness. He has stated that the black man whom he identified in the Court Room on the previous date when he gave his statement on the last date, he was dark when he saw, he looks fairer now. This man is not black. He does not remember if there was any other man inside the court room having the same complexion as the accused on previous date or not. A question has been put to this witness by the Ld. Defence Counsel which is as under:­ Question: On the previous date in the cross examination by the Ld. PP you have stated "it is correct" to practically every suggestions of Ld. PP, however, today you have denied the same facts in my cross examination, how do you reconcile the same?

Answer: He had stated that "it is correct" that in the cross examination of the Ld. PP but he did not remember the facts when he said so.

58. The answer to the above question clearly indicate that FIR No. 25/2013 State Vs. Arther Frank etc. Page No.46 of 66 this witness has admitted the suggestions in affirmative in routine manner and did not admit the same consciously. Thus, the identification of accused Arther Frank by him on the pointing out of accused by Ld. Addl.PP, is also of no consequence since he did not identify him during his examination in chief.

59. Admittedly, there is no other public witness of recovery in this case. PW21 in cross examination stated that he had called the ACP and Insp. Attar Singh at about 9.40 p.m from near Bikaner Sweets. PW33 admitted than Bikaner Sweets is a public place. He had requested many public persons near the spot to join the proceedings but none agreed. No notice in this regard was given to anyone. He cannot tell the names of those persons. He did not collect any CCTV footage of the spot. He admitted that the said place is always remain crowded. He must have requested 6­7 persons to join the raiding team. He further stated that there were may shops at the floor of the shop of Sandeep Bansal. Perhaps there were 3­4 shops on the right side and 6­7 shops on the left side. The place of apprehension of accused Arther Frank, Sandeep Bansal and Krishan Kumar are busy places. Many vehicles as also public persons used to pass through the spots. The time of apprehension is also not the odd hours of the night. Admittedly public persons were present at the spots. IO even did not serve any notice to any of the persons who gathered at the spot and refused to join in the investigation. There was enough time and opportunity to join the FIR No. 25/2013 State Vs. Arther Frank etc. Page No.47 of 66 public persons during recovery of ephedrine. No notice was served to the persons gathered at the spot/passersby who refused to join nor any action taken against them on their refusal to join the investigation. It appears that no genuine efforts were made to join the public persons in the investigation. Ld. Addl.PP has referred to the decision of Ajmer Singh Vs. State of Haryana, (2010) 3 SCC 746 arguing that failure to associate independent witnesses is not fatal to the prosecution case as long as it is shown that efforts were made and none was willing. However, it is seen that in the said decision, Hon'ble Supreme Court emphasized that it has to be shown that after making efforts the police officials were not able to get the public witness associated in either raid or the arrest of the culprits. In other words, in every case, it will have to be examined whether serious efforts were made by the police to associate public witnesses.

60. The Hon'ble Supreme Court in Ritesh Chakraborty Vs. State of Madhya Pradesh 2006 (3) JCC (Narcotics) 150 deprecated the practice of Investigating Officer in not noting down the names of the public persons, who fail to join the investigation.

61. In Anup Joshi Vs. State, 1999 (2) CC Cases 314, and Roop Chand Vs. State of Haryana, 1999 (1) CLR 69; the failure to proceed against the public persons, who refused to join the FIR No. 25/2013 State Vs. Arther Frank etc. Page No.48 of 66 investigation was considered as suggestive of the fact that the explanation for non­joining of witnesses is an afterthought and is not worthy of credence.

62. In the case of Mohd. Masoom Vs. State of NCT of Delhi, Criminal Appeal 1404/11, decided by Hon'ble Delhi High Court on 09.04.2015, the Hon'ble High Court in Para No. 10 held as under:­ "10. "Appellants" conviction is primarily based upon the testimonies of the police officers/officials only. Admittedly, no independent public witness was associated at any stage of the investigation. True, it is no rule of law that public witnesses should be joined in every eventuality and no conviction can be based upon the testimonies of the police officials. Sometimes, it becomes highly difficult for the police officials to associate independent public witnesses for various reasons. At the same time, it is undoubtedly true that joining of independent public witnesses is not a mere formality.

Simply saying by the police witnesses that public witnesses were not available without any evidence to that effect would not suffice.

The Investigating Officer is required to make genuine efforts to associate independent public witnesses if available. This is insisted so as to lend authenticity and credibility to the search and recovery that are effected. It is of course not an absolute rule and fact of each case has to be appreciated and FIR No. 25/2013 State Vs. Arther Frank etc. Page No.49 of 66 scrutinized on its own merits."

63. In the case of Ram Prakash Vs State, 2014 (146) DRJ 629, the Hon'ble High Court held that it has become almost routine practice for the police to say that passersby were requested to join and they declined and went away without disclosing their names and therefore, the Court should be wary of routinely accepting such explanation.

64. In the latest case of Om Prakash Vs. State III (2014) CCR 1 (Del.), it is held that 'in absence of clear evidence to show that sincere effort was made, Court should not simply accept proposition that generally in such cases no member of public comes forward to help prosecution'. Reliance also placed on Raj Bahadur Vs. State of Punjab 2008(4) CC Cases HC 357.

65. In the present case, public persons were not made to join the proceedings at the time of recoveries at the spots and there seems to be no genuine efforts to join them. Hence, non­joining of public witnesses at the time of recoveries creates doubt regarding the entire proceedings being genuine.

66. In the present case, PW21 Rakesh Kumar constituted raiding party consisting of himself, ASI Pramod, ASI Shamsher Singh, ASI Bhushan Kumar, HC Suresh, HC Rajbir, HC Surender FIR No. 25/2013 State Vs. Arther Frank etc. Page No.50 of 66 and Ct. Sandeep. PW33 Insp. Attar Singh also joined SI Sandeep, ASI Raj Singh, ASI Prabodh, ASI Shamsher, HC Radhakrishnan,HC Rajbir, HC Suresh, Ct. Sumer and Ct. Sher Singh in his team. However, the prosecution has examined only both the IO's i.e. SI Sunil Kumar and Inspector Attar Singh and HC Suresh who was with Ist IO SI Sunil and Ct. Sandeep and ASI Raj Singh who were with 2nd IO Insp. Attar Singh. Neither any other member of the raiding party as stated above have been examined nor they were cited as witnesses in this case for the reasons best known to the prosecution. Non­citing of these raiding party members as witnesses in this case creates doubt that they were never associated in the raiding team.

67. Ld.Counsel argued that there is no compliance of Section 42 of NDPS Act in this case as IO has not recorded the grounds of belief. The mandatory nature of the above requirement of law regarding recording of "Grounds of Belief" was explained in Karnail Singh Vs. State of Haryana VI (2009) 8 SCC 539 which is as under:­ "In conclusion, what is to be noticed is Abdul Rashid did not require literal compliance with the requirements of Section 42(1) and 42(2) nor did Sajan Abraham hold that the requirements of Section 42(1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as FIR No. 25/2013 State Vs. Arther Frank etc. Page No.51 of 66 follows:­

(a) The officer on receiving the information (of the nature referred to in Sub­section (1) of Section 42) from any person had to record it in writing in the concerned Register and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of Clauses (a) to (d) of Section 42(1).

(b) But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.

(c) In other words, the compliance with the requirements of Sections 42(1) and 42(2) in regard to writing down the information received FIR No. 25/2013 State Vs. Arther Frank etc. Page No.52 of 66 and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is after the search, entry and seizure. The question is one of urgency and expediency.

(d) While total non­compliance of requirements of Sub­sections (1) and (2) of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance of Section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non­sending a copy of such information to the official superior forthwith, may not be treated as violation of Section 42.

But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information FIR No. 25/2013 State Vs. Arther Frank etc. Page No.53 of 66 received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of Section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of Section 42 of the Act. Whether there is adequate or substantial compliance with Section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to Section 42 by Act 9 of 2001."

68. In the present case information was received by PW21 which he recorded in DD no.12 Ex.PW3/A. The said DD was received by PW3 SI Gian Chand in the office of ACP and ACP had seen and signed it. The said DD in question was recorded as per the information supplied by the secret informer. In section 42(1)(d), it was mentioned that :­ '1[Provided that in respect of holder of a licence for manufacture of manufactured drugs or ........

Provided further that] if such officer has reason to believe that a search warrant or authorisation cannot be obtained without FIR No. 25/2013 State Vs. Arther Frank etc. Page No.54 of 66 affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.

69. In the matter of State of Rajasthan Vs. Chhagan Lal, Criminal Appeal no.592 of 2005, it was held stated that :­ 'Respondent threw the bag in the well. The suspected contraband was, therefore, tried to be concealed in a well. The possibility of its destruction was imminent. In fact, the evidence on record indicates that water entered in the bag and got mixed up with the opium. The opium was liquefied. This was indeed, an emergent situation. The well had to be searched with the help of an independent witness, which was done. In such an emergent situation, if the officer had reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence (which, in this case, would have resulted in destruction of evidence), as per proviso to Section 42(1) of the NDPS Act, he could have conducted the search of the well after recording grounds of his belief. Section 42(2) requires that FIR No. 25/2013 State Vs. Arther Frank etc. Page No.55 of 66 grounds of belief so recorded have to be communicated to the immediate superior official within seventy two hours. In this case there is nothing to establish that the officer had followed this procedure. There is nothing to establish that he recorded grounds of his belief and communicated them to his immediate superior. As observed by the Constitution Bench in Karnail Singh (supra), total non­compliance of requirements of sub section (1) and (2) of Section 42 is impermissible. However, delayed compliance with satisfactory explanation about the delay will be acceptable compliance of Section 42. Since in this case, there is total non­ compliance of section 42 of the NDPS Act, the High court has rightly set aside the conviction of the respondent. The impugned order calls for no interference from this end'.

70. In the present case, secret information was recorded at about 11.00 a.m. Accused was to come at the spot in between 2 p.m to 4.00 p.m. in a TSR bearing no. DL 1LQ 3702. It has been recorded in DD no.12 that accused persons would load the ephedrine in huge quantity in a three wheeler no. DL 1LQ 3702 from Tis Hazari and would hand over to Arther Frank. Ephedrine was therefore being carried in TSR no.DL1LQ 3702. Thus, conveyance FIR No. 25/2013 State Vs. Arther Frank etc. Page No.56 of 66 was to be searched. There was sufficient time with the IO to obtain search warrant of the conveyance as information was received at 11.00 a.m and conveyance reached at the place of apprehension of accused at about 8.15 p.m. There was no emergent situation by which it could be inferred that IO could not obtain the search warrants. In DD no.12 IO has not mentioned any emergent situation so that he could not obtain the search warrants. There is no written permission obtained by PW21 for conducting the raid/search of the vehicle. The raid was conducted between sunset and sunrise. Since there was no emergent situation, it was mandatory on the part of Investigating Officer to obtain written permission/search warrant of the vehicle. But there is no such document on file. Considering the evidence on record, this Court is of the view that provisions of section 42 of NDPS Act has not been complied with in its right spirit. Insp. Attar Singh has also effected recovery from accused Sandeep Bansal and Krishan Kumar on 21.06.2013 i.e. after about 6 days of recovery from accused Arther Frank. He had no where stated that prior to proceeding to the spot for the recovery, he sent any information to his senior officer. He effected the recovery from the shop of accused Sandeep Bansal. No search warrant was obtained by him for the search of the shop while he was aware that he is going for recovery of ephedrine. Thus, the compliance of the provision u/s 42 NDPS Act has not been complied with.

FIR No. 25/2013 State Vs. Arther Frank etc. Page No.57 of 66

71. In the present case, ephedrine was recovered. There is recovery of 50 Kgs ephedrine from accused Arther Frank which was handed over to him from the vehicle by accused Mehboob. 20 Kgs ephedrine was recovered from the shop of accused Sandeep Bansal and 10 Kgs ephedrine was recovered from accused Krishan Kumar and 290 Kgs ephedrine was recovered from the vehicle. Ephedrine is a controlled substance. Rule 4 of the Narcotics Drugs and Psychotropic Substance (regulation and controlled substances) Order 2013 reads as under:­ 'Prohibition of manufacture trade and commerce, possession and consumption of controlled substance in Schedule A - (1) No person shall manufacture, distribute, sell, "purchase, possess, store, or consume any controlled substance included in Schedule A I­ without a unique registration number in form A issued by the Zonal Director of Narcotics: Control Bureau : provided that the requirement of registration under this clause shall be complied within a period of 180 days of the coming into force of this order:

Provided further that the Government of autonomous institutions, Schools or colleges or universities recognized by the Government registered Scientific Societies and hospitals using any controlled substance in Schedule A for educational, scientific and analytical purposes are exempted from the FIR No. 25/2013 State Vs. Arther Frank etc. Page No.58 of 66 registration. (2) Every application for registration under sub clause (1) shall be made in form B to the Zonal Director of Narcotics Control Bureau having jurisdiction over the area. (2) The Zonal Director of Narcotics Control Bureau shall issue a unique registration number in Form A or deny the registration within thirty working days from the date of receipt of an application in form­B. (c) in case registration number is not issued within the stipulated time period or denied, the Zonal Director of Narcotics Control Bureau or an other officer authorised by him in this regard shall inform the applicant the reasons thereof. (5) Every person who has been registered under sub­clause (1) shall maintain daily accounts in Form ­C and Form ­D as the case may be and the records of the daily accounts shall be preserved for a minimum period of five years from the date of last entry. (6) Every person who has been registered under sub­clause Form­E or Form­F, as the case may be to the concerned Control Bureau having jurisdiction over the area. (1) shall file quarterly return in Zonal Director of the Narcotics.. (7) The return of every quarter shall be filed before the rest day of the month of owing the quarter (8) Every person who has been registered under sub FIR No. 25/2013 State Vs. Arther Frank etc. Page No.59 of 66 clause (1) shall immediately report regarding any loss of disappearance of controlled substance in Schedule A to the concerned Zonal Director of the Narcotics Control Bureau within whose area of jurisdiction such loss or disappearance occurred and a copy of the report shall also be endorsed to the Director General of the Narcotics Control Bureau, New Delhi'.

72. In cross examination, PW33 ACP Attar Singh admitted that the alleged recovered contraband was a controlled substance according to NDPS Act. He had gone through Narcotics Drugs and Psychotropic Substance (Regulations of Controlled Substance) Order 2013. He does not remember the exact date of notification concerned, however, it was in the month of March 2013. He denied the suggest that the possession of Norephedrine is not an offence as per the said notification at the time of alleged recovery. He further deposed that he was not having knowledge that as per section/rule 4 of Narcotics Drugs and Psychotropic Substance (Regulation of Controlled Substance) Order 2013 that requirement of registration under the said clause had to be complied within a period of 180 days of coming into force of the said order i.e. within the period of 180 days from 26.03.2013. He denied the suggestion that no contraband as specified under the NDPS Act/Narcotics drugs and Psychotropic Substance (Regulations of Controlled Substances) Order 2013 was recovered from or at the instance of accused Sandeep Bansal or that FIR No. 25/2013 State Vs. Arther Frank etc. Page No.60 of 66 he has deliberately and falsely implicated the accused Sandeep Bansal in the present case knowing fully well that at the relevant time, no offence under NDPS Act would have been committed by anyone by possessing pseudoephdrine and norephdrine. He further denied the suggestion that he is deliberately showing his ignorance regarding section 4 of the Narcotics Drugs and Psychotropic Substance (Regulations of Controlled Substances) Order 2013 and period of 180 days as mentioned therein.

73. I have perused the said notification. The notification came into force w.e.f 26.03.2013. However, for the substance mentioned in schedule 'A' which also includes Pseudoephedrine and its salts, 180 days time has been provided for getting the registration done. The recovery of the present case had taken place on 15.06.2013 and 21.06.2013. Thus, eventhough the notification has come into force, yet, 180 days time was provided for getting the registration done. Thus, it is crystal clear that the recovery in the present case was effected during interregnum period. Further, file reveals that Insp. Attar Singh had himself written a letter dated 22.10.2013 to Drug Controller, Govt of NCT of Delhi to furnish the information regarding licence of accused Sandeep Bansal. Vide letter dated 31.10.2013, it was reported by the Drug Inspector, Govt. of NCT of Delhi that Bansal Pharma holds drug licence no.26(1168) on form 20B&21B granted on 31.08.1992 and valid upto 31.12.2017. The firm is permitted to deal in patent, proprietory and FIR No. 25/2013 State Vs. Arther Frank etc. Page No.61 of 66 pharmacopoeial drugs and chemicals except schedule X drugs and all items of schedule C&C1 except those requiring cold storage and schedule X drugs by virtue of licence 20B & 21B and as such the firm can deal in norephedrine under this licence with Drugs and Cosmetics Rules 1945. As per statement of DW5 Vinod Kumar, accused Krishan Kumar was partner in VK Pharma which is a firm dealing in pharmaceutical drugs. In view of the notification where 180 days time was granted to procure licence and since accused Sandeep Bansal had licence on the date of incident, the recovery of ephedrine effected from the shop of accused as also other recoveries cannot be taken as violation of the aforesaid notification in terms of Sec.9A/25A of NDPS Act.

74. PW4 Bal Kishan deposed that on 31.05.2013, one person came and booked four bags and two drums in the name of Raj Chemical for Hapur vide bilty no.761. He further deposed that on person alongwith the same person who had got booked the articles came to his office on 16.07.2013 and taken back the aforementioned four bags and two drums in an auto. PW6 Jallaluddin is the witness from Sodi Transport. He deposed that the goods were returned back from Hapur in the night of 15.06.2013 and on the next day i.e. 16.06.2013 at about 2.00 p.m, the same were released to a boy and an old man. The receipt no.1579 is Ex.PW6/A. As per the evidence the recovered ephedrine was booked through transport for Hapur on 31.05.2013 and on the instruction of FIR No. 25/2013 State Vs. Arther Frank etc. Page No.62 of 66 someone, it was brought back to Delhi and then taken by the person who booked the same. It is not understandable as to why the said goods(ephedrine) was booked for Hapur when it was to be returned back and delivered at Delhi. Be that as it may, as per PW4 & PW6 four bags and two drums were booked and same were received back. However, as per statement of PW2 Tika Ram four bundles of cartons and four plastic bags were loaded in his tempo and there was one other packet inside a gunny bag. There is no evidence to show as to how there is difference in the quantity which was released and loaded in the TSR. Further, as per testimony of PW21, SI Rakesh, secret information was received on 15.06.2013 and recovery of ephedrine from accused Arther Frank and the TSR no.DL1LQ 3702 was also effected on the said date. However, as per the statement of PW4 as well as PW6, the goods were received back on 15.06.2013 and released on 16.06.2013. This fact is also proved from receipt no.1579 dated 15.06.2013 Ex.PW6/A issued by Sodhi Road Lines, Hapur which shows that the parcels were booked from Hapur. When the parcels were booked from Hapur on 15.06.2013, it is highly improbable that the same would have also been released by 2.00 p.m on 15.06.2013 at Delhi, as per the story of the prosecution. The statement of PW4 and PW6 thus, seems to be true that the parcels were received on 15.06.2013 and released on 16.06.2016 at 2.00 p.m. When the parcels were released on 16.06.2016 at 2.00 p.m as per statement of PW4 and PW6, it is not understandable as how the same were recovered prior to that i.e. on 15.06.2013. This create FIR No. 25/2013 State Vs. Arther Frank etc. Page No.63 of 66 grave suspicion in the case of the prosecution.

75. The prosecution has also collected the CDRs of various mobile numbers in this case. Mobile no.8447022458 was found registered in the name of Harmandeep Singh, mobile no. 9819335697 was found in the name of Mehboob Khan, mobile no. 8376953116 was found in the name of Bedpal Singh, mobile no.9313362105 was found in the name of Mohan Lal, Mobile no. 9810084137 was found in the name of Sandeep Bansal, Mobile no. 8266802098 was found in the name of Rajender, mobile no. 9045764082 was found in the name of Nisar, mobile no. 7503059362 was fond in the name of Anil Kumar, mobile no. 7502083972 was found in the name of Manoj, mobile no. 78227766177 was found in name of Nanhi, mobile no. 8595495274 was found in the name of Raj Kr and mobile no.9313362105 was found in the name of Mohan Lal. Perusal of the same reveals that neither of the phone is found in the name accused Krishan Kumar and accused Arther Frank. Recovery of phone is doubtful as public witness not joined. The witness especially PW2 and PW6 have deposed against the prosecution case. Thus, the CDRs collected are of no consequence.

76. Voice sample of accused Sandeep Bansal and Krishan Kumar were also taken in this case at FSL. The handwritten conversation between accused Sandeep and Drona Ex.PW33/F does FIR No. 25/2013 State Vs. Arther Frank etc. Page No.64 of 66 not show that deal with regard to ephedrine was done. PW33 prepared one CDs of the voice of accused Sandeep Bansal and Drona Mark Q1 and another CD of the voice of Sandeep Bansal and Krishan Kumar Mark Q2. I have also perused the FSL result Ex.PW33/J. As per FSL result voice of in CD Mark Q1 and sample S1 was the voice of Sandeep Bansal. However, in the CD Mark Q2 i.e. the alleged voice of accused Krishan Kumar, no sufficient number of exemplars were found available, hence the speaker identification test could not be carried out for the same. Thus, the voice of accused Krishan Kumar did not match with the sample voice. Thus, it cannot be said that accused Krishan Kumar was having any dealing with accused Sandeep Bansal as per the version of prosecution which is based on CDs. As far as the matching of voice sample of accused Sandeep Bansal is concerned, it is of no consequence as firstly the recovery is highly doubtful, further the possession of the said substance would become illegal after 180 days of notification that too when registration is not done.

77. As far as the charge u/s 29 NDPS Act is concerned, the prosecution has failed to adduce any evidence to show that the accused persons were in contact with each other.

78. Serious punishments are prescribed under the NDPS Act and therefore stricter the punishment, stricter the mode of proof. In the case of Noor Agha Vs. State of Punjab & Anr. 2008 (3) FIR No. 25/2013 State Vs. Arther Frank etc. Page No.65 of 66 JCC (Narcotics) 135, the Hon'ble Court held that in a case arising out of the provisions of NDPS Act the legislature has provided very stringent punishment. Therefore, the courts have to be extremely cautious and careful in adjudicating the cases pertaining to NDPS Act. There has to be a perfect balance and fine tuning between the interest of society and protection of statutory safeguards available to the accused.

79. In the State of Punjab Vs. Baldev Singh (1999) 3 SCC 977, the Hon'ble Supreme Court held that it must be borne in mind that severe the punishment, greater has to be taken care to see that the safeguard provided in statute are scrupulously followed.

80. In view of the aforesaid discussions, this Court finds that the case of the prosecution is doubtful. It is well settled law that benefit of doubt is always given to the accused. All the three accused persons namely Arther Frank, Sandeep Bansal and Krishan Kumar are accordingly, acquitted u/s 25­A/29 of NDPS Act. However, all the accused persons shall furnish personal bond in the sum of Rs.20,000/­ with a surety of the like amount u/s 437­A Cr.P.C. Digitally signed by AJAY GUPTA AJAY Location:

Karkardooma Announced in the open GUPTA Court Date:

court on 02.11.2019.

2019.11.02 16:40:33 +0530 (AJAY GUPTA) Special Judge (NDPS) KKD COURTS, DELHI.

FIR No. 25/2013 State Vs. Arther Frank etc. Page No.66 of 66