Delhi District Court
Fir No. 248/2017 P.S. Seemapuri State vs . Sonu @ Monu Page No.1 on 24 July, 2023
IN THE COURT OF SH. AMITABH RAWAT,
ADDITIONAL SESSIONS JUDGE-03
(SHAHDARA), KARKARDOOMA COURT, DELHI
CNR No. : DL-SH01-00-4530-2017
FIR No. : 248/2017
Under Section : 21 NDPS ACT
Police Station : Seemapuri
Sessions Case No. : 218/2017
STATE
......Prosecution
VERSUS
SONU @ MONU
S/o. Sh. Rahis Shamsuddin,
R/o. E-43/590, New Seemapuri,
Delhi
...... Accused
Name and particulars of complainant : SI Rahul Sagar
Date of Institution : 13.07.2017
Date of reserving judgment : 10.07.2023
Date of pronouncement : 24.07.2023
Decision : Acquitted
JUDGMENT
1. The present judgment is the culmination of the criminal proceedings initiated against the accused Sonu @ Monu in reference to the charge-sheet FIR No. 248/2017 P.S. Seemapuri State vs. Sonu @ Monu Page no.1 filed against him under Section 21 of NDPS Act based upon the First Information Report lodged on the written complaint of complainant SI Rahul Sagar.
2. In brief, the case of the prosecution is that on 15.04.2017 at around 2.30 PM, SI Rahul Sagar received one secret information in the Police Station regarding one person namely Sonu, who used to supply Heroin in heavy quantity and sells Heroin to children in park through his agents, would come with huge quantity of Heroin at around 6.00 PM near Shamshan Ghat, Old Seemapuri, Delhi and if raided, said Sonu can be apprehended with his associate and Heroin could be recovered in huge quantity. The concerned SHO was briefed about the information and the secret informer was also produced before him and after satisfying himself, SHO shared the said information with ACP, Seemapuri who directed to take appropriate action. The secret information was reduced in writing vide DD No. 74B in the Rojnamcha register and on the directions of SHO, a raiding team consisting of SI Rahul Sagar, Ct. Mohit, Ct. Prince and secret informer, was formed and at about 4.20 PM, the said team alongwith IO & Field Testing Kit, electronic weight machine reached at near Shamshan Ghat, Old Seemapuri, Delhi and at about 5.50 PM, one person was found coming on foot from Meena Market side and was carrying one white color polythene in his hands. The said person then stopped in the midst of footpath at Shamshan Ghat and starting waiting for someone and at around 6.00 PM, on the pointing out of the secret informer, he was overpowered by SI Rahul Sagar and on interrogation, he disclosed his name as Sonu and on checking white color polythene, which he was holding in his right hand, 301 grams of FIR No. 248/2017 P.S. Seemapuri State vs. Sonu @ Monu Page no.2 Heroin was recovered from it. Accused Sonu was apprehended and thereafter arrested. Case property was deposited in the malkhana. Site plan was prepared. Statement of witnesses were recorded. Samples were sent to FSL for examination and after completion of investigation, charge-sheet was filed in the Court.
3. After hearing, Ld. Counsel for accused and Ld. Addl. Public Prosecutor for State, Ld. Predecessor was pleased to frame a charge under Section 21 of NDPS Act against the accused vide order dated 26.07.2018 to which accused pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution has examined as many as nine witnesses :-
i) PW-1 is Inspector Sanjeev Kumar. He was the SHO, P.S. Seemapuri and he proved DD No. 74B (Ex. PW1/A) regarding the secret information received in this case on 15.04.2017. He, thereafter, proved DD No. 9A Ex. PW1/B regarding putting his seal impression on three pullandas (case property) and on the FSL Form as also endorsement on the carbon copy of the seizure memo. He further proved entry at serial no. 339/2259 from point X to X1 as Ex. PW1/C regarding relevant entries in Register no.19 for deposition of the sealed case property alongwith documents in the Malkahana.
ii) PW-2 is SI Rahul Sagar. He received the secret information on 15.04.2017 which he conveyed to PW1/Inspector Sanjeev Kumar who passed on the same to the ACP concerned and on the directions of the ACP FIR No. 248/2017 P.S. Seemapuri State vs. Sonu @ Monu Page no.3 conveyed through SHO/PW1, he made entry regarding secret information vide DD No. 74B and formed the raiding party alongwith Ct. Mohit (PW4) & Ct. Prince (PW6) and secret informer. He alongwith others of raiding team also apprehended the accused at around 6.00 PM and served a notice under Section 50 of NDPS Act. PW2/D. He also recovered from the accused the contraband from a white polythene bag which he was having in his hands and containing a transparent polythene having brownish material in it. He also took out two samples of 05 grams each from the recovered contraband and put them into pullandas and put his seal of RS and handed over the seal to Ct. Prince (PW6). He also proved the seizure memo Ex. PW2/B and tehrir Ex. PW2/C. He also handed over the accused alongwith seizure memo, carbon copy of the notice to second IO/SI Gaurav (PW8). Sample alongwith polythene was Ex. PW2/Article-1 (colly), and PW2/Article-2 (colly), white polythene alongwith transparent polythene with brownish material as Ex. PW2/Article 3 (colly). He also proved notice under Section 50 of NDPS Act Ex. PW2/D. He also proved DD entry no. 79B regarding leaving for raid from the police station as Ex. PW2/E.
iii) PW-3 is HC Vedpal Singh. He deposed that he was Duty Officer on 15.04.2017 and had recorded the FIR in the present case and also made endorsement on the back side of rukka and also recorded DD entry No. 8A in the DD register. He proved the copy of FIR Ex. PW3/A, his endorsement on rukka Ex. PW3/B and relevant DD entries No. 8A as Ex. PW3/C.
iv) PW-4 is Ct. Mohit. He was part of the raiding team alongwith PW2/SI Rahul Sagar and PW6/Ct. Prince. He also proved the arrest memo FIR No. 248/2017 P.S. Seemapuri State vs. Sonu @ Monu Page no.4 of accused Ex. PW4/A, personal search memo Ex. PW4/B & his disclosure statement Ex. PW4/C. His deposition is similar to PW2.
v) PW-5 is HC Rahul Tyagi. He deposed that on 18.04.2017, on the instruction of IO in this case, he deposited sealed exhibit vide RC No. 87/2017 alongwith relevant document at FSL, Rohini in the present case. After depositing the same, he returned back and handed over the receiving of FSL to IO/SI Gaurav.
vi) PW-6 is Ct. Prince. He was also part of the raiding team alongwith PW2/SI Rahul Sagar and PW4/Ct. Mohit. He deposed on similar lines as PW2 & PW4.
vii) PW-7 is HC Rohtash Singh. He deposed that on 15.04.2017, he was MHC(M) of P.S Seemapuri and was called by SHO/PW1 alongwith register no.19 and was handed over three sealed pullandas having mark of AI, A2 & A3 with seal of RS & SK alongwith FSL Form by PW1 to be deposited in Malkhana. He made the entry in register no. 19 at serial no. 2259 and the relevant page of the said register is Ex.PW7/A. On 18.04.2017, on IO's instructions, he handed over one sealed pullanda having mark A1 alongwith FSL Form to Ct. Rahul to deposit the same in FSL, Rohini. He prepared RC no. 87/21/17 in this respect and made entry in register no. 19 from Z to Z1 in Ex. PW7/A. He produced register no.21 and proved the copy of R/C Ex. PW7/B. He further deposed that Ct. Rahul handed over a receipt from FSL, which was also placed in the same register and proved photocopy of the same as Ex. PW7/C. He deposed that on FIR No. 248/2017 P.S. Seemapuri State vs. Sonu @ Monu Page no.5 28.09.2017, Ct. Vineet had collected the result alongwith sealed sample from FSL, Rohini which was handed over to him. After making entry of the same in register no. 19 in the relevant column, he handed over the same to IO. he proved the said entry at point Z2 to Z3 on Ex. PW7/A.
viii) PW-8 is SI Gaurav Chaudhary. He is the second IO in this case who arrested the accused and conducted the remaining proceedings of investigation. He deposed that on 15.04.2017, investigation of the present case was marked to him and he received the computerized copy of the FIR alongwith original tehrir from Ct. Mohit in P.S. Seemapuri. He gone through the documents, which were handed over to him by the 1st IO, and thereafter, he prepared the site plan Ex. PW8/A. He further deposed that on 17.04.2017, he prepared special report under Section 57 NDPS Act and produced the same before SHO/PW1 for onward transmission and the same was mark X. On 18.04.2017, on his directions, samples were sent to FSL, Rohini through Ct. Rahul.
ix) PW-9 ASI Daya Ram, SO/SHD, ACP Office, Seemapuri, Delhi. He proved the original notice under Section 57 of NDPS Act. He also brought the photocopy of the order/SO No. 64/PPR 11-31 dated 01.01.2021, as which, the record has been destroyed from 01.01.2017 to 31.12.2017.
All the aforementioned witnesses were duly cross-examined by Ld. Defence Counsel.
5. On conclusion of the prosecution evidence, statement of accused FIR No. 248/2017 P.S. Seemapuri State vs. Sonu @ Monu Page no.6 under Section 313 Cr.P.C. was recorded on 10.07.2023 wherein he denied the prosecution version in its entirety and claimed that he is innocent and has been falsely implicated in this case. However, accused did not opt to lead evidence in his defence.
6. Arguments on behalf of accused Sonu @ Monu by Sh. Pankaj Bhushan, Ld. Counsel for the accused and for prosecution by Sh. Lavdev Singh, Ld. Addl. Public Public Prosecutor for the State, were heard.
7. I have carefully gone through the entire record.
8. Non-compliance of Section 41 NDPS Act 8.1 The present case is based on the receipt of a secret information by PW2/SI Rahul Sagar on 15.04.2017 regarding the accused Sonu @ Monu and based upon which a raiding party was constituted. The secret information was conveyed to PW1/Inspector Sanjeev Kumar.
In this regard Section 41 of the Narcotic Drugs and Psychotropic Substances Act, 1985 reads as under :-
[41. Power to issue warrant and authorization.-- (l) A Metropolitan Magistrate or a Magistrate of the first class or any Magistrate of the second class specially empowered by the State Government in this behalf, may issue a warrant for the arrest of any person whom he has reason to believe to have committed any offence punishable under this Act, or for the search, whether by day or by night, of any building, conveyance or place in which he has reason to believe any narcotic drug or psychotropic substance or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article FIR No. 248/2017 P.S. Seemapuri State vs. Sonu @ Monu Page no.7 which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed:
(2) Any such officer of gazetted rank of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including the para-military forces or the armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government if he has reason to believe from personal knowledge or information given by any person and taken in writing that any person has committed an offence punishable under this Act or that any narcotic drug or psychotropic substance or controlled substance in respect of which any offence under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or place, may authorise any officer subordinate to him but superior in rank to a peon, sepoy or a constable to arrest such a person or search a building, conveyance or place whether by day or by night or himself arrest such a person or search a building, conveyance or place.
(3) The officer to whom a warrant under sub-section (1) is addressed and the officer who authorised the arrest or search or the officer who is so authorised under sub-section (2) shall have all the powers of an officer acting under section 42.] 8.2 Thus, as per Section 41 of NDPS Act, if the raid is to be conducted in an open space on the receipt of a secret information, then the details of FIR No. 248/2017 P.S. Seemapuri State vs. Sonu @ Monu Page no.8 secret information and sanction of the raid must be recorded under Section 41 NDPS Act. The said Section is very categorical that only a Gazetted Officer can give directions under this Section. Thus, only a Gazetted Officer is empowered to direct for constitution of a raiding party.
8.3 In the present case, as per PW1/Inspector Sanjeev Kumar, he had conveyed the secret information received from PW2/SI Rahul to his senior officers and the said fact was mentioned vide DD entry No. 74B Ex. PW1/A. PW1 further deposed that he had given the said information to his senior officer but did not even depose that any gazetted level officer was conveyed about this information, who then directed him to ask PW2 to constitute a raiding team.
8.4 Also, as per DD Entry No. 74B recorded by PW2, PW1 Inspector Sanjeev Kumar had conveyed the secret information to the ACP who had directed to constitute a raiding party. However, this is not sufficient. Even as per DD No. 74B Ex. PW1/A, the secret information, as received by PW2, was conveyed to PW1 and which PW1 subsequently conveyed to the ACP concerned. PW1 in his deposition did not depose that he conveyed this information to the Gazetted Officer as is the mandate of Section 41 of NDPS Act. Moreover, he never deposed that any gazetted officer had directed for constitution of a raiding party. Placing on record Ex. PW1/A does not help the prosecution case as PW1 in his evidence must depose that he had conveyed the said information to the Gazetted Officer, FIR No. 248/2017 P.S. Seemapuri State vs. Sonu @ Monu Page no.9 who directed him to constitute a raiding party. Statement by PW2 that he was informed by PW1 about the directions from the ACP is hearsay in the absence of categorical deposition in this regard by PW1.
8.5 Moreover, the concerned senior officer or ACP/Gazetted Officer would have proved this fact. However, the name of the concerned ACP has neither been disclosed in the DD Entry nor has any officer come to depose about mandatory compliance of Section 41 of NDPS Act.
9. 9.1 As per the prosecution witnesses, a raiding party was constituted by PW2/SI Rahul Sagar consisting of himself, PW4/HC Mohit and PW6/Ct. Prince who all went to the place of incident and apprehended the accused Sonu @ Monu with narcotics.
Hence, scrutiny of evidence of PW2, PW4 & PW6 becomes important.
9.2 Some relevant portions of cross-examination of PW1/Inspector Sanjeev Kumar is quoted below :-
" It is correct that no description of the accused except his name was mentioned n the DD entry no. 74B. I give the information regarding receiving of the secret information to my senior officers at about 3.00/3.15 PM. Ct. Prince and Ct. Mohit were present in the police station when I received the information regarding accused. Vol. SI Rahul was with me at FIR No. 248/2017 P.S. Seemapuri State vs. Sonu @ Monu Page no.10 that time.
Ct. Mohit alongwith SI Gaurav left the PS at about 9.00 PM. I cannot tell in which means, they left the P.S. Both were in police uniform. I lodged the DD no. 9A at about 8.40 PM. The case property was deposited in the malkhana at about 8.40 PM".
9.3 Some relevant portions of cross-examination of PW2/SI Rahul is quoted below :-
"I got secret information when I was alone in the office and produced the informer before SHO at 3.00 PM. Only SHO was present at that time. DD No. 74B is in my writing and same was written at DO room. The information was conveyed to ACP telephonically by SHO after about 5-10 minutes from his mobile phone. Secret informer had given physical description of accused. I do not remember whether I had written physical description of the accused in DD No. 74B.
At this stage, DD No. 74B Ex. PW1 placed on the file is shown to the witness and after going through DD, witness states that he had not written the description of the accused as stated by the informer in the DD. It is incorrect to suggest that no secret information was received by me in my office and that is why physical description of the accused had not been mentioned in the DD.
Ct. Mohit and Ct. Prince were called in the SHO room and briefed about the same.
I left with the raiding party in my personal car white color Polo and FIR No. 248/2017 P.S. Seemapuri State vs. Sonu @ Monu Page no.11 we were in civil dress and were having pistol. I do not remember the way/road via which we reached Shamshan Ghat.
I do not remember who was sitting besides me in the car and who was sitting at the back seat.
I saw the accused from a distance of 50-60 steps when he was coming from Meena market. Informer pointed out from the distance of 50-60 steps. Distance between me and Ct. Mohit and Ct. Pince was about 200 steps. Accused was apprehended by all of us together. Accused did not try to run away after his apprehension. The main road where accused was apprehended is a busy road. No photocopy of videography was done after the apprehension of accused. I was having smart phone with camera. All members of raiding party were having camera in smart phones. I do not remember the mobile number which I was using at that time. I do not remember how many rows and column in the field testing kit. I do not remember the color of chemical which I used to check the sample and also do not remember the colour which appeared after testing the contraband.
It is correct that meena market is situated at 20-30 steps from the spot. The shops are situated inside Meena Market. I had not called any shopkeeper from Meena Market to join the proceedings. It is incorrect to suggest that I had not visited the spot and no proceedings were conducted at the spot and that is why no shopkeeper or Pandit or staff of shamghat were joined to investigation".
FIR No. 248/2017 P.S. Seemapuri State vs. Sonu @ Monu Page no.12 9.4 Some relevant portions of cross-examination of PW4/Ct. Mohit is quoted below :-
"SI Rahul conveyed the secret information to us at 4.00 pm. SI Rahul had not given the physical description of the accused at the time of conveying the secret information. Informer had not stated anything to me or to SI Rahul regarding physical appearance (description).
I do not remember the time of DD 74B. Vol. It was not done in my presence. The secret information was conveyed to me in IO room by the IO. We went to the spot straightaway.
We all left the PS on two bikes. We were on private bikes. I was sitting as pillion rider on bike, which was driven by Ct. Prince. I am not aware who was driving the 2nd bike, on which IO and secret informer were sitting. Ct. Prince and myself were in civil dress and we were not having arms. SI Rahul was in uniform. I cannot say whether SI Rahul was having ammunition with him.
It is correct that spot is busy area (public place). IO had asked 4-5 public persons to join the proceedings/ investigation after reaching the spot but none agreed. No notice in writing was given to public persons.
It is correct that shops and residential houses are situated at Meena Market. I had not called the staff or the pandit of shamshan ghat to join the proceedings. IO had not called any shopkeeper from Meena market and any person from residential houses to join the proceedings.
IO took out samples with his fingers. The rubber band and the two FIR No. 248/2017 P.S. Seemapuri State vs. Sonu @ Monu Page no.13 transparent polythene in which the samples were kept was with IO but I do not remember where the same were kept.
9.5 Some relevant portions of cross-examination of PW6/Ct. Prince is quoted below :-
" SI Rahul conveyed the secret information to us at about 5.00 pm firstly at the spot. SI Rahul had not stated to me regarding physical description of the accused at the time of conveying the secret information.
In my presence, SI Rahul had not got issued field testing kit and electrnic weighing machine from the malkhana. SI Rahuld had taken with him blank papers and transparent polythene with him only but I cannot tell the quantity of polythene.
Shamshan ghat is one and half km away from the PS. We all left the PS on car of SI Rahul. I am not aware whether IO had mentioned in the departure entry that raiding party left the PS in his car.
At this stage, DD no.79B Ex. PW-2/B is shown to the witness and the witness state that said fact is not mentioned in the DD. It is also correct that the polythenes are not mentioned in the aforesaid DD. It is incorrect to suggest that no raiding party left the PS in the car at any point of time of the IO as the same has not been mentioned in DD no.79B.
I do not remember the sitting position of the member of the raiding party. In the car, I also cannot tell the sitting position of secret informer in the car.
FIR No. 248/2017 P.S. Seemapuri State vs. Sonu @ Monu Page no.14 All the members of raiding party were in uniform. None of the members raiding party were having arms or ammunition.
It is correct that spot is busy area (public place). IO had asked 4-5 public person to join the proceeding after reaching the spot at main gate of Shamshan ghat. No notice was given.
It is correct that shops and residential houses are situated at Meena Market. IO had not called the staff or the Pandit of Shamshan Ghat to join the proceedings. IO had not called any shopkeeper from Meena Market and any person from residential houses to join the proceedings".
10. 10.1 There are material contradictions in the testimonies of PW1, PW2, PW4 & PW6, who were all part of the same raiding team regarding the facts deposed by them in their examination in chief and in their cross- examination.
10.2 PW-2 SI Rahul in his cross-examination deposed that secret informer had given physical description of accused but it was not mentioned by him while recording DD No. 74B Ex. PW1/A and while conveying it to the PW1 Inspector Sanjeev Kumar for seeking instructions for constitution of a raiding party.
PW-4 Ct. Mohit in his cross-examination deposed that SI Rahul (PW2) had not given the physical description of the accused at the time of FIR No. 248/2017 P.S. Seemapuri State vs. Sonu @ Monu Page no.15 conveying the secret information. Informer had not stated anything to him or to SI Rahul regarding physical appearance (description).
PW-6 Ct. Prince in his cross-examination had deposed that SI Rahul (PW2) had not stated to him regarding physical description of the accused at the time of conveying the secret information.
Thus, there is a discrepancy whether the physical description of the accused was apprised by the informer to PW2 and if it was so, whether it was brought to the notice of PW4 & PW6 by PW2. Moreover, as per witnesses, even informer never informed them about the physical description of the accused while he was with them during the entire raid before apprehension of the accused.
10.3 PW1/Inspector Sanjeev Kumar in his cross-examination had deposed that PW-6 Ct.Prince and PW-4Ct. Mohit were present in the police station when he received the information regarding the accused. SI Rahul (PW2) was with him at that time.
PW-2 SI Rahul in his cross-examination had deposed that he got secret information when he was alone in the office and produced the informer before SHO at 3.00 PM. Only SHO (PW1) was present at that time. Ct. Mohit (PW4) and Ct. Prince (PW6) were called in the SHO room FIR No. 248/2017 P.S. Seemapuri State vs. Sonu @ Monu Page no.16 and briefed about the same.
PW-4 Ct. Mohit in his cross-examination had deposed that the secret information was conveyed to them by SI Rahul (PW2) at 4.00 PM.
PW-6 Ct. Prince in his cross-examination had deposed that SI Rahul (PW2) conveyed the secret information to them at about 5.00 pm firstly at the spot.
Thus, as per the PW2/SI Rahul, PW4 & PW6 were called in the SHO (PW1) room and briefed about the secret information at about 3.00 PM. However, as per PW4, the said information was conveyed to them by PW2 at about 4.00 PM. Moreover, as per PW6/Ct. Prince, PW2/SI Rahul conveyed the secret information to them at about 5.00 PM firstly at the spot. PW1/Inspector Sanjeev Kumar does not say anything about the presence and communication of secret information to the raiding party members.
Since PW2, PW4 & PW6 were all part of the raiding party and went from Police Station to the spot together, after the constitution of raiding party on receipt of secret information, this contradiction is quite material.
10.4 PW-2/SI Rahul in his cross-examination deposed that he left with raiding party in his personal white color Polo car and they were in civil dress and were having pistol. He does not remember who was sitting besides him in the car and who was in the back seat.
FIR No. 248/2017 P.S. Seemapuri State vs. Sonu @ Monu Page no.17 PW-4/Ct. Mohit in his cross-examination deposed that they all left the Police Station on two bikes. They were on private bikes. He was a pillion rider on bike driven by Ct. Prince (PW6). So, he is not aware who was driving the second bike on which IO and secret informer were sitting. He and PW6/Ct. Prince were in civil dress and they were not having arms. SI Rahul was in uniform.
PW-6 Ct. Prince in his cross-examination deposed that they all left Police Station on car of SI Rahul. All members of raiding party were in uniform. None of the members of raiding party were having arms or ammunition.
Thus, there is again a material contradiction as to how all members of the raiding party comprising of PW2, PW4 & PW6 went to the spot and in which dress.
PW2 & PW6 deposed that they all went in a car while PW4 deposed that they went in two bikes with description of driver and pillion rider. PW2 deposed that they all went in civil dress and with pistol while PW6 deposed that all members of raiding were in uniform without any arms and ammunition. As per PW4, he and PW6 were in civil dress without arms while PW2 was in uniform.
Thus, all the three witnesses and members of the same raiding party FIR No. 248/2017 P.S. Seemapuri State vs. Sonu @ Monu Page no.18 have different versions about how they proceeded to the spot, what they were wearing and if weapons were being carried or not.
10.5 Non-joining of Public Witnesses:-
In cases where the witnesses are police officials only, it has to be seen whether the public witnesses were available at the spot when recovery was effected from the accused and if they were available, whether any efforts were made to join them in investigation.
As per the cross-examination of PW2, PW4 & PW6, the open place from where the accused was apprehended is a busy road and the Meena Market is situated at 20-30 steps away from the spot. The shops are situated inside Meena market.
PW-2 deposed in his cross-examination that he had not called any shopkeeper from Meena Market to join the investigation. Furthermore, PW- 4 Ct. Mohit & PW6 in their cross-examination admitted that shops and residential houses were situated at Meena Market. He further deposed that IO had not called any shopkeeper from Meena market and any person from residential houses to join the proceedings.
Thus, it appears that efforts were not made to join the public witnesses at the time of search and recovery of contraband from the accused person, though public persons were available at the spot and the place being a market place and residential area as well.
FIR No. 248/2017 P.S. Seemapuri State vs. Sonu @ Monu Page no.19
11. Non compliance of Section 57 NDPS Act:-
As per Section 57 of NDPS Act, after arrest and seizure under this act, the arresting officer within 48 hours shall make a report of the particulars of arrest or seizure to his immediate official superior.
PW1 in his evidence had deposed that he had forwarded the report/letter written by SI Gaurav Chaudhary under Section 57 of NDPS Act Ex.PW9/A to the ACP concerned who had seen and approved it. However, the name of the ACP was never disclosed either in the entire charge-sheet who took the compliance under Section 57 of NDPS Act nor was he produced as a prosecution witness in this case.
12. Non-compliance of Section 50 of NDPS Act 12.1 In the present case, notice under Section 50 of NDPS Act, served upon the accused, did not mention the nearest Gazetted Officer as is the mandate under law.
Section 50 of NDPS Act read as under :-
50. Conditions under which search of persons shall be conducted.--(1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate.
(2) If such requisition is made, the officer may detain the FIR No. 248/2017 P.S. Seemapuri State vs. Sonu @ Monu Page no.20 person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1).
(3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.
(4) No female shall be searched by anyone excepting a female. 1[(5) When an officer duly authorized under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973 (2 of 1974).
(6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior.] 12.2 Section 50 of NDPS Act is a mandatory provision and has to be complied with. Hon'ble Supreme Court in Vijaysinh Chandubha Jadeja v. State of Gujarat, (2011) 1 SCC 609, held that there must be strict compliance of Section 50 of the NDPS Act. The Bench held as follows:--
"29. In view of the foregoing discussion, we are of the firm opinion that the object with which the right under Section 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect viz. to check the misuse of power, to avoid harm to innocent persons and to minimise the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a Magistrate. We have no hesitation in holding that insofar as the obligation of the authorised officer under sub-section (1) of Section 50 of the NDPS Act is concerned, it is FIR No. 248/2017 P.S. Seemapuri State vs. Sonu @ Monu Page no.21 mandatory and requires strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision.
31. We are of the opinion that the concept of "substantial compliance" with the requirement of Section 50 of the NDPS Act introduced and read into the mandate of the said section in Joseph Fernandez [(2000) 1 SCC 707 : 2000 SCC (Cri) 300] and Prabha Shankar Dubey [(2004) 2 SCC 56 : 2004 SCC (Cri) 420] is neither borne out from the language of sub-section (1) of Section 50 nor it is in consonance with the dictum laid down in Baldev Singh case [(1999) 6 SCC 172 : 1999 SCC (Cri) 1080]. Needless to add that the question whether or not the procedure prescribed has been followed and the requirement of Section 50 had been met, is a matter of trial. It would neither be possible nor feasible to lay down any absolute formula in that behalf."
12.3 Keeping this in mind, Hon'ble High Court of Delhi in Mohd. Jabir vs. State of NCT of Delhi, Bail Appln. 1725/2022 order dated 28.03.2023 in para no. 60 held as follows:-
"60. Hence as has been held by the above judgment, section 50 is to be mandatorily complied. There is no concept of substantial compliance. In the present case, conditions under section 50 have been violated and the procedure established has not been followed. The same give rise to reasonable grounds for granting bail."
Thus, the notice under Section 50 of NDPS Act served upon the accused Sonu @ Monu under NDPS Act must necessarily have offered the opportunity to the accused to be searched before the nearest Gazetted Officer. The notice served upon accused Sonu @ Monu does not offer him FIR No. 248/2017 P.S. Seemapuri State vs. Sonu @ Monu Page no.22 that opportunity and therefore, his refusal is of no relevance as it is an answer or response to the inadequate opportunity offered to him, which is violation of mandatory Section 50 of NDPS Act.
12. I would underscore the cardinal principle of criminal jurisprudence that a criminal case has to be proved beyond reasonable doubt against an accused if he is to be pronounced guilty.
13. In the present case, considering the contradictions of the material recovery witnesses and the non-compliance of various provisions of NDPS Act in prosecution evidence, as discussed above in detail, I hold that prosecution has not been able to prove its case against the accused beyond reasonable doubt. In these circumstances, accused cannot be convicted for the offences punishable under Section 21 of NDPS Act. Accordingly, accused Sonu @ Monu is acquitted of the offence punishable under Section 21 of NDPS Act.
File be consigned to Record Room, as per rules.
Pronounced & Dictated in the open Court today i.e 24.07.2023 (Amitabh Rawat) Special Judge(NDPS)-cum-Additional Sessions Judge-03 (Shahdara),Karkardooma Courts, Delhi FIR No. 248/2017 P.S. Seemapuri State vs. Sonu @ Monu Page no.23