Delhi District Court
State vs (I) Mumtaz @ Guria on 31 August, 2012
IN THE COURT OF SH. BRIJESH KUMAR GARG:
SPECIAL JUDGE(NDPS)/ADDL.SESSIONS JUDGE (NORTH
EAST) : KARKARDOOMA COURTS, DELHI
SC No. 116/2007
FIR No. 59/2007
PS Narcotics Branch
Under Section 21 & 29 NDPS Act
Case ID 02402R0549002007
State Versus (i) Mumtaz @ Guria
W/o Saleem
R/o L79, Sunder Nagari, Delhi.
(ii) Rizwan
S/o Irfan R/o H. No. 6, Gali No. 1,
Garima Garden, Pasonda, Ghaziabad, (U.P.)
Date of Institution 14.08.2007
Date of hearing Arguments 28.08.2012
Date of Judgment 31.08.2012
J U D G M E N T
1. In the present case, the accused Mumtaz @ Guria, is facing trial for the offence punishable U/s 21 (a) of the Narcotic Drugs and Psychotropic Substances Act, 1985, whereas, the accused Rizwan is facing trial for the offence punishable U/s 29 of the Narcotic Drugs FIR59/2007 PS Narcotics Branch Page 1/16 and Psychotropic Substances Act, 1985.
2. In order to prove the charges against the accused persons, the prosecution has examined a total of nine witnesses, who are all police officials. There is no public witness to the alleged incident and the alleged recovery of contraband, from the possession of the accused Mumtaz @ Guria.
3. After completion of prosecution evidence, the statement of accused Mumtaz @ Guria and Rizwan were recorded U/s 313 Cr.P.C., on 28.05.2012. Both the accused have denied all the incriminating evidence against them and have deposed that they are innocent and have been falsely implicated in this case. The accused have not led any defence evidence, despite opportunity.
4. After completion of trial, final arguments were addressed by Sh. S.K. Dash, Ld. Additional P.P. for the State and Sh. Jagdeep Sharma, Advocate, for both the accused persons. The Ld. Addl. P.P. has argued that the prosecution witnesses have proved the recovery of 55 grams of 'Heroin' from the possession of the accused Mumtaz @ Guria and have also proved on record that both the accused persons have conspired together to commit the offence punishable U/s 21 (a) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and FIR59/2007 PS Narcotics Branch Page 2/16 therefore, the accused Mumtaz @ Guria be convicted for the offence punishable U/s 21 (a) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and the accused Rizwan be convicted for the offence punishable U/s 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985.
5. On the other hand, Sh. Jagdeep Sharma, Advocate, for the accused persons has argued that both the accused have been falsely implicated in this case and no recovery was effected from the possession of accused Mumtaz @ Guria. He has also argued that the mandatory provisions of Section 50 NDPS Act have not been complied properly and no efforts were made by the police officials to join any public person or a Gazetted Officer during the investigations.
6. He has further argued that the refusal of accused Mumtaz @ Guria, on the notice U/s 50 NDPS Act (Ex.PW2/B) was recorded by Ct. Praveen Kumar, but, Ct. Praveen Kumar has neither been cited nor examined as a witness, during the trial. He has further argued that the IO has failed to disclose any reason as to why the refusal Ex.PW2/B was not recorded by him in his own hand.
7. He has further argued that the alleged recovery was affected on 13.06.2007 and the samples were sent to FSL on 22.06.2007, and FIR59/2007 PS Narcotics Branch Page 3/16 therefore, there is a delay of about 9 days in sending the samples to the FSL and the same violates the guidelines issued by the NCB and the same is fatal to the prosecution case.
8. He has further argued that the first IO ASI Nirmal Singh (PW9), handed over the seal, after use, to Lady HC Rani Reddy (PW2) and the seal was received back by him, after about 23 days and since the sample was deposited at FSL Rohini, on 22.06.2007, after 9 days of the incident, the possibility of tempering of the sample could not be ruled out.
9. He has further argued that there is no evidence on record to prove any conspiracy between the accused persons, to attract the provisions of Section 29 of The NDPS Act against accused Rizwan. He has also argued that the mere presence of the accused Rizwan, at the spot, at the time of the alleged recovery, does not prove the conspiracy between the accused persons.
10. I have carefully gone through the case file & I have given my considered thoughts to the arguments addressed by the Ld. Defence Counsel and the Ld. Addl. PP for the State. Perusal of the record shows that PW9, ASI Nirmal Singh, has deposed that on 13.06.2007, he was posted at Narcotics Branch, Shakarpur and at about 1.15 p.m., FIR59/2007 PS Narcotics Branch Page 4/16 a secret informer came to him and informed him about the accused persons and disclosed that the accused Rizwan R/o Garima Garden, Ghaziabad, U.P. will come to supply 'Smack' to accused Mumtaz @ Guria at about 3.00 P.M. to 4.00 P.M., near Cremation Ground Sewrage Pump, Seema Puri. The secret information was reduced into writing vide DD No. 13A at 1.45 P.M. This witness has further deposed that after receiving the information, he produced the secret informer before PW6, SHO, Narcotics Branch, and SHO, Narcotics Branch, after satisfying himself about the secret information, informed ACP, Narcotics Branch Sh. Rajesh Deo, telephonically, who directed to prepare a raiding team and to raid the area. He has further stated that the true copy of DD no. 13A, was also handed over to SHO, Narcotics Branch and as per his directions, a raiding party was constituted and they reached the spot and took their positions near the spot. At about 3.10 p.m., the accused Rizwan was seen coming from the side of J&K Block, Old Seema Puri and was identified by the secret informer as accused Rizwan. After reaching the spot, the accused Rizwan waited at the spot for about five minutes and in the meantime, the accused Mumtaz @ Guria also came there. The secret informer identified her as accused Mumtaz @ Guria. Thereafter, both FIR59/2007 PS Narcotics Branch Page 5/16 the accused persons started talking with each other and accused Rizwan handed over a polythene packet to accused Mumtaz @ Guria and thereafter, both the accused were apprehended by the police party. Thereafter, he informed the fact of secret information to them and told them that their personal search was to be conducted and also informed them about their legal rights. Thereafter, the notice U/s 50 NDPS Act was served upon the accused persons and after their refusal, to get their personal search conducted in the presence of a Magistrate or a Gazetted Officer, their personal search were conducted, wherein, 55 grams of Heroin was recovered from the possession of the accused Mumtaz @ Guria.
11. Perusal of the record further shows that the IO has not made any effort or an endeavour to produce the accused persons before a Gazetted Officer or a Magistrate, prior to conducting their personal search. It has been held by the Hon'ble Appex Court in case titled as Vijaysinh Chandubha Jadeja Vs. State of Gujarat, reported as AIR 2011, SC 77, as under:
"22. In view of the foregoing discussion, we are of the firm opinion that the object with which 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 FIR59/2007 PS Narcotics Branch Page 6/16 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 in so far as the obligation of the authorised officer under Subsection (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires a 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. Therefore, the suspect may or may not choose to exercise the right provided to him under the said provision. As observed In Re: Presidential Poll MANU/SC/0047/1974 : (1974) 2 SCC 33, it is the duty of the courts to get at the real intention of the Legislature by carefully attending to the whole scope of the provision to be construed. "The key to the opening of every law is the reason and spirit of the law, it is the animus imponentis, the intention of the law maker expressed in the law itself, taken as a whole." We are of the opinion that the concept of "substantial compliance" with the requirement of Section 50 of the NDPS Act introducted and read into the mandate of the said Section in Joseph Fernandez (supra) and Prabha Shankar Dubey (supra) is neither borne out from the language of Subsection (1) of Section 50 nor it is in consonance with the dictum laid down in Baldev Singh's case (supra). 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. We also feel that though Section 50 gives an option to the empowered officer to take such person (suspect) either before the nearest gazetted FIR59/2007 PS Narcotics Branch Page 7/16 officer or the Magistrate but in order to impart authenticity, transparency and creditworthiness to the entire proceedings, in the first instance, an endeavour should be to produce the suspect before the nearest Magistrate, who enjoys more confidence of the common man compared to any other officer. It would not only add legitimacy to the search proceedings. It may verily strengthen the prosecution as well".
(emphasis supplied by me).
12. It has been further held by the Hon'ble Supreme Court in case titled as Narcotics Control Bureau Vs. Sukhdev Raj Sodhi, reported as AIR 2011 SC 1939, as under: "5. The obligation of the authorities under Section 50 of the NDPS Act has come up for consideration before this Court in several cases and recently, the constitution Bench of this Court in the case of Vijaysinh Chandubha Jadeja v. State of Gujarat MANU/SC/0913/2012 : (2011) 1 SCC 609 has settled this controversy. The Constitution Bench has held that requirement of Section 50 of the NDPS Act is a mandatory requirement and the provision of Section 50 must be very strictly construed.
6. From the perusal of the conclusion arrived at by this Court in Vijaysinh Chandubha Jadeja's case, it appears that the requirement under Section 50 of the NDPS Act is not complied with by merely informing the accused of his option to be searched either in the presence of a gazette officer or before a Magistrate. The requirement continues even after that and it is required that the accused person is actually brought before the gazette officer or the Magistrate and in Para 32, the Constitution Bench made it clear that in order to impart authenticity, transparency and creditworthiness to the entire proceedings, as Endeavour FIR59/2007 PS Narcotics Branch Page 8/16 should be made by the prosecution agency to produce the suspect before the nearest Magistrate.
(emphasis supplied by me).
13. From the above pronouncements, it is clear that the provisions of Section 50 NDPS Act are mandatory in nature, and are to be complied strictly. But, in the present case, the IO has not complied the provisions of Section 50 NDPS Act, strictly. The IO was duty bound to produce the accused persons before a Gazetted Officer or a Magistrate, immediately, after their apprehension by the raiding party, prior to conducting their personal search. Furthermore, the refusal by the accused persons to get themselves searched in the presence of a Gazetted Officer or a Magistrate does not appear to be voluntary. Both the accused were already surrounded by the police party, when the notice U/s 50 NDPS Act were allegedly served upon them. In these circumstances, the refusal by the accused persons, to get themselves personally searched in the presence of a Gazetted Officer or a Magistrate, can, by no stretch of imagination be held to be voluntary.
14. It is further observed that no public person has joined the investigations as a witness. It has been stated by the IO and the other members of the raiding party that several public persons were asked FIR59/2007 PS Narcotics Branch Page 9/16 to join the police party, on the way to the spot, but, nobody obliged and those persons had left the spot, without disclosing their names and addresses to the IO. IO has failed to serve any written order or notice upon such public persons, for their willful noncooperation. It has been held by the Hon'ble High Court of Delhi in case titled as Mohd. Raffique Vs. State, reported as 2000 II AD (Cr.) DHC 365, as under: "9. It is worth mentioning that the evidence of the said police officials is conspicuous by the absence of any description as to who were the persons who were asked to witness the search and seizure and whether they were called upon to do so by an order in writing. Reference may, in this context, be made to the provisions of sub Section (8) of Section 100 Cr.P.C., which provides that any person, who without reasonable cause, refuses or neglects to attend and witness a search under Section 100 of the Code, when called upon to do so by an order in writing delivered or tendered to him, shall be deemed to have committed an offence under Section 187 IPC. In the instance case, there is nothing to indicate that the authorised officer had served or even attempted to serve an order in writing upon any public witness as envisaged by subSection (8) of Section 100 Cr.P.C. In this connection, I may usefully excerpt the following observations of Malik Shariefu Din, J. in Rattan Lal Vs. State, 1987 92) Crimes 29: "....... In the case in hand the seizure and the arrest have been made under section 43 of NDPS Act. Admittedly, no public witness was involved in the matter of search and seizure as envisaged by subsection (4) of section 100 FIR59/2007 PS Narcotics Branch Page 10/16 Cr.P.C. The explanation offered is that public witnesses were requested but they declined to cooperate. My experience is that this explanation is now being offered in almost all cases. In the circumstances of a particular case it may so happen that for a variety of reasons public witnesses may decline to associate themselves but generally speaking it does not so happen. If a public witness declines to cooperate without reasonable cause inspite of any order in writing, to witness the seizure and search, he will be deemed to have committed an offence under Section 187 I.P.C. and this has been clearly spelt out in subsection (8) of section 100 Cr.P.C. In the present case there is a vague explanation that public witnesses were approached but they declined. Neither the name of such witness has been given nor has any order in writing to that effect been preserved, nor it is asserted that a mention the same has been made in the case diary. Obviously, there is a deliberate attempt defeat the legislature safeguards."
10. It has come in the evidence of Sub Inspector Satpal (P.W.6), Constable Jamil Ahmad (P.W. 4) and Constable Sukhram Pal (P.W. 3) that Gali Masjid Wali is a thickly populated area. It seems inconceivable that no one from the public had come to the spot to witness the alleged search and seizure operation. Having regard to the area and the place of search and seizure, it appears that public witnesses were available but no serious attempt was made by Sub Inspector Satpal (P.W. 6) to associate them before searching the appellant. I am unable to find any reason as to why he did not even make any attempt to associate any independent witness or witnesses during the course of search and seizure operation."
(emphasis supplied by me).
15. Perusal of the record further shows that the alleged sample of Heroin, 'MarkA', was sent to FSL Rohini alongwith the FSL form FIR59/2007 PS Narcotics Branch Page 11/16 through Ct. Om Prakash, on 22.06.2007. The alleged recovery was affected from the possession of the accused Mumtaz @ Guria on 13.06.2007. Therefore, there is a delay of about 9 days in depositing the samples at the FSL, Rohini. No explanation has been given by the IO, regarding the delay in submitting the samples to FSL Rohini, for chemical analysis.
16. It has been held by the Hon'ble High Court of Delhi in case titled as Matloob Vs. State (Delhi Administration), reported as 67 (1997) DLT 372, as under:
"11. My attention was drawn to Delhi High Court Rules and Orders PartIII Chapter 18B, which interalia, provides that articles for the opinion of the chemical examination should be forwarded without the least possible delay. In considering all this, delay if any, can be explained by the prosecution. Samples to CFSL in this case were despatched about one month after the substance was seized and no explanation for so much time taken in despatching the samples is forthcoming on record. Thus the prescribed promptitude appears to be lacking in this case."
(emphasis supplied by me).
17. It has been further held by the Hon'ble High Court of Delhi in case titled as Rishidev @ Onkar Singh Vs. State (Delhi Administration), decided on 01.05.2008 in Crl. Appeal No. FIR59/2007 PS Narcotics Branch Page 12/16 757/2000, as under: "8. In a significant judgment in Parminder Singh v. State of Haryana 2007 (2) JCC (Narcotics) 71, the Punjab and Haryana High Court found that there was no explanation for the delay of 25 days in sending the samples for analysis. In para 13 of the judgment it was held as under: (JCC @ p.76)
13. No. explanation has come forward from the side of the prosecution as to why the samples were sent after a gap of 25 days for analysis. S.K. Nagpal, Retired Senior Scientific Officer, FSL, Madhuban PW2 has stated that on 7.8.2001 five sealed parcels were received in the Laboratory, but the same were returned back due to the reason that the FIR in that case was registered on 12.7.2001, with the objection regarding the delayed deposit of sample parcels. As per this witness, according to the narcotic Control Bureau Instructions, the sealed parcels should be deposited within 72 hours with the Chemical Examiner. He has further stated that two samples were to be taken of the seized contraband as per instructions. The explanation given by DSP Chander Singh PW6 to this witness was that samples could not be sent earlier due to VVIP duties. Ram Kumar MHC PW3 brought Rapat Roznamcha from 12.7.2001 to 16.7.2001. During this period, it has been shown that the Police Force was not sent for VVIP duty at anytime. The crossexamination or Ram Kumar MHC PW3 was deferred by the trial court to enable the witness to produce the Roznamcha from 16.7.2001 to 13.8.2001. This witness was not brought into the witness box by the prosecution. We can safely infer that Ram Kumar PW3 was not brought again into FIR59/2007 PS Narcotics Branch Page 13/16 the witnessbox, as the period from 16.7.2011 to 13.8.2001 did not show any VVIP duty. It is clear that the Investigation Officer Chander Singh DSP PW6 has only made an excuse, which is not convincing, that the samples could not be sent because of VVIP duty."
The above passage shows that there is a time limit of 72 hours stipulated by the narcotics Control Bureau for a seized sample to be deposited with the Chemical Examiner for testing. This rule is salutary because any attempt at tampering with the sample recovered from the accused can have fatal consequences to the case of the prosecution. Strict compliance has to be insisted upon in such an event."
(emphasis supplied by me)
18. In the present case, the prosecution has led the evidence regarding the deposition of the case property at the Malkhana on 13.06.2007 and sending of the sample to FSL on 22.06.2007. But, there is no evidence to explain the delay of about 9 days in sending the samples to FSL for chemical examination and the same violates the guidelines of NCB. Furthermore, WHC Rani Reddy (PW2) had returned the seal of the IO to him after 23 days and since the sample was deposited at FSL Rohini only on 22.06.2007, it is clear that the IO had received back his seal, prior to the sending of the samples to the FSL Rohini. Therefore, the possibility of tempering of samples can not be ruled out.
FIR59/2007 PS Narcotics Branch Page 14/16
19. From the perusal of the record it is also observed that the IO ASI Nirmal Singh has not recorded the refusal of accused Mumtaz @ Guria (Ex.PW2/B), himself and Ex.PW2/B was got prepared by him through Ct. Praveen. IO ASI Nirmal Singh has failed to disclose any reason or disability for not recording the refusal Ex.PW2/B in his own hand.
20. Perusal of the record further shows that there is no evidence on record to indicate any conspiracy between the accused persons, to attract the provisions of Section 29 of the NDPS Act. There is no recovery from the possession of accused Rizwan. The mere presence of accused Rizwan at the spot, at the time of alleged recovery from the accused Mumtaz @ Guria, is not sufficient to prove the offence U/s 29 of the NDPS Act against them. In this case, even the alleged recovery from the possession of accused Mumtaz @ Guria is doubtful.
21. From the above discussion, I am of the considered opinion that the prosecution has failed to prove its case against the accused persons, beyond a shadow of doubt, and therefore, the accused Mumtaz @ Guria is hereby acquitted for the offence punishable U/s 21 (a) of the Narcotic Drugs and Psychotropic Substances Act, 1985. FIR59/2007 PS Narcotics Branch Page 15/16 The accused Rizwan is also acquitted for the offence punishable U/s 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The bail bonds furnished by the accused Mumtaz @ Guria, accepted on 17.08.2007, and the bail bonds submitted by accused Rizwan, accepted on 14.09.2007 and 24.09.2007, are extended for a further period of six months from today, as per the provisions of Section 437 A of the Cr.P.C. Both the accused are further directed to appear before the appellate court, as and when, the notices are issued to them by the appellate court, in any appeal, if preferred by the State, against their acquittals. File be consigned to record room, after due compliance.
Announced in the open court on this 31st day of August, 2012. Brijesh Kumar Garg Special Judge NDPS (NorthEast) ASJ:KKD Courts, Delhi.
FIR59/2007 PS Narcotics Branch Page 16/16