Delhi District Court
Sc No. : 8680/2016 Fir No.: 14/10 U/S: ... vs Deepak Tomer @ Deepak & Anr. Page No. 1 Of ... on 10 February, 2017
IN THE COURT OF SHRI AMIT BANSAL
ADDITIONAL SESSIONS JUDGE-04, NEW DELHI DISTRICT
PATIALA HOUSE COURTS, NEW DELHI
CNR No. : DLND01-000062-2010
SC No. : 8680/2016
FIR No. : 14/10
U/S : 15/29 NDPS Act
PS : Crime Branch
State
Versus
1. Deepak Tomer @ Deepak
S/o Sh Narain Singh
R/o Village Itayli, PS Mau, PO Ganguri,
Distt. Bhind (MP).
2. Manpreet Singh
S/o Sh Manjeet Singh
R/o Village Ibban, Distt. Amritsar,
Punjab. ......... Accused persons.
Date of receipt of file in this Court : 03.01.2017
Date when arguments were heard : 28.01.2017
Date of judgment : 10.02.2017
JUDGMENT
1 The charge sheet in the present case has been filed against the above mentioned accused persons u/s 15/29 of The Narcotics Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as 'NDPS Act'). 2 Briefly stated, the facts that can be culled out from the assertions made in the charge sheet and documents filed therewith are as follows:-
(a) On 12.02.2010 at about 5.50am one secret informer appeared before ASI Paramjeet Singh in the Narcotics Cell and informed him that two persons with the name of Deepak and Manpreet used to deal in and supply in wholesale and retail of Chura Post (Poppy Straw) by bringing it from Gwalior, Madhya Pradesh. The secret informer further informed that on 12.02.2010 at between about 6.30am to SC No. : 8680/2016 FIR No.: 14/10 U/S: 15/29 NDPS Act PS: Crime Branch State Vs Deepak Tomer @ Deepak & Anr. Page no. 1 of 27 07.00am, the said persons would come at Sarai Kale Khan bus stand to supply Poppy Straw to someone and that they could be apprehended by taking suitable action in time.
(b) ASI Paramjeet Singh thereafter produced the secret informer before Insp. Incharge namely Insp. Mohan Lal Sharma in his office at about 6am who also enquired from the secret informer and satisfied himself about the information. Insp. Mohan Lal Sharma thereafter intimated about the secret information to ACP S R Yadav through telephone at his residence who directed to immediately make a raid and to further proceed as per law. ASI Paramjeet Singh recorded the said information vide DD No. 4 at 6.10am and handed over its copy u/s 42 NDPS Act to Insp. Mohan Lal Sharma. Insp. Mohan Lal Sharma and ASI Paramjeet Singh formed a raiding party consisting of themselves, HC Sanjeev Kumar and Ct Harender and they were briefed about the said information. The said raiding party along with the secret informer took with it IO bag, field testing kit and electronic weighing scale left in a govt vehicle no. DL-1CJ-3481 with its driver HC Om Prakash vide DD No. 5 at 6.30am, took a left turn from Pushta road, Vikas Marg and reached Kale Khan bus stand at about 6.55am.
(c) On the way, ASI Paramjeet Singh got stopped the vehicle and requested 4-5 passersby on Pushta road and also 2-3 persons standing near Indraprasth Metro station after telling them about the information to join the raiding party, however, none agreed to join the raiding party and left without telling their names and addresses. After reaching the area, as soon as ASI Paramjeet Singh asked the secret informer about the exact spot, the secret informer while looking outside the vehicle immediately got stopped the vehicle and from a distance of about 20 meters pointed out and told that two persons sitting on the white colour plastic kattas used to supply Poppy Straw.
(d) On the footpath of in gate, ISBT Sarai Kale Khan, two persons out of whom one was wearing jeans of blue colour and another was wearing a black colour patka (turban) were seen, secret informer pointed towards the Sikh boy as Manpreet and the other one as Deepak and thereafter secret informer left the vehicle. At that time, the said two boys i.e. accused Deepak and Manpreet Singh started to lift the kattas SC No. : 8680/2016 FIR No.: 14/10 U/S: 15/29 NDPS Act PS: Crime Branch State Vs Deepak Tomer @ Deepak & Anr. Page no. 2 of 27 on which they were sitting and in that process were apprehended by ASI Paramjeet Singh along with raiding party staff. The accused persons thereafter upon enquiry disclosed their names as Deepak S/o Sh Narain Singh R/o Village Itayli, PS Mau, PO Ganguri, Distt Bhind, Madhya Pradesh and Manpreet Singh S/o Sh Manjeet Singh R/o Village Ibban, Distt Amritsar, Punjab.
(e) ASI Paramjeet Singh told both the accused persons about the secret information and also told them that it was a possibility that the Poppy Straw could be recovered from them for which their personal search and search of their articles was to be taken. After that, ASI Paramjeet Singh gave notice u/s 50 NDPS Act to both of them and they were made to understand that they were having a legal right to be searched before a Magistrate or a Gazetted Officer who could be called there and that before their search they were also having the legal right to search the raiding party. Both the accused persons were given separate carbon copy of notices u/s 50 NDPS Act, the contents of the notice was read over to them and they were made to understand it, however, both the accused persons after understanding it refused to exercise their above said right. Thereafter, the said refusal was recorded by ASI Paramjeet Singh in his own hand on the original notices u/s 50 NDPS Act as both the accused persons were illiterates, the refusal was read over to the accused persons, they were made to understand it and after admitting to be correct they signed in Hindi upon the refusal on original notices. Before starting the proceedings, ASI Paramjeet Singh after telling the circumstances to 8-10 public persons present there requested them to join the proceedings, however, all of them refused to join it after telling their valid excuses and left the spot without telling their names and addresses. The crowd also got disbursed.
(f) ASI Paramjeet Singh thereafter searched the accused Deepak and that of white plastic katta which was beneath the said accused. On one side of said katta, something was written with red ink in English language and the mouth of the katta was stitched with a sutali. IO ASI Paramjeet Singh checked the recovered katta after removing the sutali from which 33 plastic polythene bags of white colour were taken out and it was found that the mouth of said plastic polythene bags had been stapled. IO weighed the said plastic polythene bags separately and the weight of SC No. : 8680/2016 FIR No.: 14/10 U/S: 15/29 NDPS Act PS: Crime Branch State Vs Deepak Tomer @ Deepak & Anr. Page no. 3 of 27 each bag was found to be 1kg i.e. total weight of all the said polythene bags was 33 kg. IO checked all the recovered polythene by opening their mouth and found them to contain substance like wooden burada which on smelling and physical appearance was found to be Chura Post ('Poppy Straw'). Small amount of Poppy Straw was taken out from each polythene bag, it was mixed and two transparent polythene pouches each containing 250gm samples were prepared, their mouth were tied with a rubber band, they were converted into white cloth pullandas and were marked as Mark A and Mark B. The polythene bags containing the remaining Poppy Straw were stapled again, were kept in the recovered plastic katta along with the sutali, the mouth of the plastic katta was tied and stitched with a piece of white cloth, a pullanda was prepared and it was marked as Mark C. Form FSL was also filled. All the said three pullandas and Form FSL were sealed with seal of PS. Seal after use was handed over to HC Sanjeev Kumar and the case property was seized vide a seizure memo.
(g) Thereafter, IO searched accused Manpreet Singh and the plastic katta which was recovered from beneath him. The mouth of said plastic katta was found tied with a sutali and on its one side 'Nirma' was written in Hindi with green colour. IO opened up the mouth of said katta and found 04 white colour plastic polythene bags of big size and found that their mouth was lying stapled. The said recovered each plastic polythene bag was weighed on the electronic weighing machine and the weight of each bag was found to be 5kg i.e. the total weight of said four bags was found to be 20 kg. IO checked each polythene bag after opening its mouth and found substance like wooden danedar burada in it which on smelling and physical appearance was found to be Chura Post (Poppy Straw). Small amount of Poppy Straw was taken out from each polythene bag, it was mixed and two transparent polythene pouches each containing 250gm samples were prepared, their mouth were tied with a rubber band, they were converted into white cloth pullandas and were marked as Mark A1 and Mark B1. The polythene bags containing the remaining Poppy Straw were stapled again, were kept in the recovered plastic katta along with the sutali, the mouth of the plastic katta was tied and stitched with a piece of white cloth, a pullanda was prepared and it was marked as Mark C1. Form SC No. : 8680/2016 FIR No.: 14/10 U/S: 15/29 NDPS Act PS: Crime Branch State Vs Deepak Tomer @ Deepak & Anr. Page no. 4 of 27 FSL was also filled. All the said three pullandas and Form FSL were sealed with seal of PS after taking the seal back from HC Sanjeev Kumar. Seal after use was again handed over to HC Sanjeev Kumar and the case property was seized vide a seizure memo.
(h) In the said circumstances, total 33 kg of Poppy Straw was recovered from the possession of accused Deepak Tomer @ Deepak and total 20 kg of Poppy Straw was recovered from the possession of accused Manpreet Singh.
(i) Thereafter IO prepared rukka which was handed over to Ct Harender Singh along with 06 pullandas, 02 FSL forms and two carbon copies of seizure memos with the direction to give the case property to SHO and rukka to be handed over to the Duty officer and left the spot at about 12 noon in above said govt. vehicle with driver HC Om Prakash. Ct Harender Singh the PS Crime Branch, Nehru Place at about 12.45pm and handed over the rukka to Duty Officer and the case property was produced before Insp. Kuldeep Singh Yadav who also put his seal of KSY on all the six pullandas and two FSL forms and also signed all the pullandas, FSL forms, carbon copy of seizure memo and also mentioned FIR on it.
(j) After registration of FIR, ASI Rajbir Singh, 2nd IO came at the spot in the same govt vehicle, ASI Paramjeet Singh handed over the accused persons and relevant papers to him and he (ASI Rajbir Singh) prepared a site plan on the pointing out of ASI Paramjeet Singh. The accused persons were arrested after their interrogation, their arrest memos and personal search memos were prepared and their disclosure statements were recorded. After completing the proceedings at the spot, ASI Rajbir Singh deposited the personal search of the accused in malkhana and recorded the statements of witnesses.
(k) Thereafter they returned to Narcotics Cell, Shakarpur with the accused persons. The accused persons were produced before Insp. M L Sharma. ASI Paramjeet Singh prepared special report u/s 57 NDPS Act regarding recovery of 53 kg Poppy Straw and arrest of accused persons which was produced by him before Insp. M L Sharma.
(l) During the course of investigation, the sample pullandas of this case were sent to FSL, Rohini, Delhi through HC Dharmender Singh and after receiving and SC No. : 8680/2016 FIR No.: 14/10 U/S: 15/29 NDPS Act PS: Crime Branch State Vs Deepak Tomer @ Deepak & Anr. Page no. 5 of 27 collecting the report from FSL, Rohini, Delhi the present charge sheet was filed. 3 On the basis of material placed on record, separate charge u/s 15 (b) NDPS Act was framed against both the accused persons by Ld. Predecessor of this court. 3.1 The charge against accused Deepak Tomer @ Deepak was framed to the effect that on 12.02.2010 at 7am at In-gate of ISBT Sarai Kale Khan, he was found in possession of 33 polythene bags each weighing one kg (total 33 kg) containing Poppy Straw which he acquired / possessed without any rule, order or licence under the provisions of NDPS Act and thereby committed an offence punishable u/s 15 (b) NDPS Act.
3.2 The charge against accused Manpreet Singh was framed to the effect that on 12.02.2010 at 7am at In gate of ISBT Sarai Kale Khan, he was found in possession of 04 polythene bags each weighing 5 kg (total 20 kg) containing Poppy Straw which he acquired / possessed without any rule, order or licence under the provisions of NDPS Act and thereby committed an offence punishable u/s 15 (b) NDPS Act.
3.3 Both the accused persons pleaded not guilty and claimed trial. 4 The prosecution in order to prove its case has examined total 12 witnesses. 5 PW1 HC Dharmender Singh has deposed to the effect that on 26.02.2010 he was posted at Narcotics Cell, Shakarpur, Delhi and on that day at the instance of PW8 Insp Kuldeep Singh Yadav, the then SHO PS Crime Branch, he obtained two sample pullandas containing 250 gm each Chura Post (Poppy Straw) i.e. Mark A and A1, sealed with seal of PS and KSY along with two FSL forms with same seal along with other documents from PW5 HC Chand Ram, MHC(M) vide RC No. 66/21 for depositing the same to FSL, Rohini, Delhi. He deposited the said pullandas at FSL Rohini and returned back copy of receipt and copy of RC to MHC(M) vide DD No. 14. He deposed that the pullandas remained intact till those were in his possession and no one tampered with it.
6 PW2 HC Sanjeev Kumar, PW3 HC Harender Singh and PW9 SI (then ASI) Paramjeet Singh are the members of the raiding team which had apprehended the accused persons. They have deposed on the similar lines and have reiterated more or less the assertions as made in the charge sheet. As per their depositions, the SC No. : 8680/2016 FIR No.: 14/10 U/S: 15/29 NDPS Act PS: Crime Branch State Vs Deepak Tomer @ Deepak & Anr. Page no. 6 of 27 notices u/s 50 NDPS Act both dated 12.02.2010 as given to accused Deepak Tomer @ Deepak and Manpreet Singh have been proved as Ex PW2/A and Ex PW2/B respectively with their respective refusals on portion Y to Y and Y1 to Y1 respectively. The seizure memo dated 12.02.2010 of Chura Post (Poppy Straw), samples and FSL form from the accused Deepak Tomer has been proved as Ex PW2/C. The seizure memo dated 12.02.2010 of Chura Post (Poppy Straw), samples and FSL form from the accused Manpreet Singh has been proved as Ex PW2/D. The arrest memo and personal search memo of accused Deepak Tomer has been proved as Ex PW2/E and Ex PW2/F respectively. The arrest memo and personal search memo of accused Manpreet Singh has been proved as Ex PW2/H and Ex PW2/I respectively. The remnants of Poppy Straw as recovered from plastic katta of accused Deepak Tomer and the sample drawn from it have been proved as Ex P1 and Ex P3 respectively. The remnants of Poppy Straw as recovered from plastic katta of accused Manpreet Singh and the sample drawn from it have been proved as Ex P2 and Ex P4 respectively. 33 polythene bags taken out from the katta and containing the Poppy Straw as recovered from accused Deepak Tomer have been collectively proved as Ex P5. 04 polythene bags taken out from the katta and containing the Poppy Straw as recovered from accused Manpreet Singh have been collectively proved as Ex P6. Personal search articles of accused Deepak and Manpreet also containing carbon copy of notices u/s 50 NDPS Act have been proved as Ex P7 and Ex P8 respectively. The rukka as prepared by PW9 has been proved as Ex PW9/A. The report u/s 57 NDPS Act as produced by PW9 before PW11 Insp. M L Sharma has been proved as Ex PW9/B. The DD No. 4 dated 12.02.2010 lodged by PW9 at about 6.10am w.r.t. the receipt of secret information has been proved as Ex PW7/A. The DD No. 5 w.r.t. departure entry of raiding team from Narcotics Cell, Shakarpur on 12.02.2010 at about 6.30am has been proved as Ex PW8/1.
7 PW4 Dr Madhulika Sharma, Asstt. Director, FSL, Rohini, Delhi has deposed that on 26.02.2010 two sealed cloth parcel Mark A and A1 along with forwarding letter (FSL form) and specimen seal impression KSY and PS were received in their office. She deposed that the same were handed over to her for chemical SC No. : 8680/2016 FIR No.: 14/10 U/S: 15/29 NDPS Act PS: Crime Branch State Vs Deepak Tomer @ Deepak & Anr. Page no. 7 of 27 examination. She deposed that the parcels seals were tallied with the specimen seal and parcel A and A1 were found to contain yellowish brown colour husky powdery material stated to be Poppy Straw with weight 246.0 gm and 238.0 gm approximately respectively with polythene. She further deposed that on chemical and TLC examination, exhibit A and A1 were found to contain Morphine, Codeine, Thebaine, Papaverine, Narcotine, Meconic Acid and Porphyroxine which are main constituents on Poppy plan (papaver somniferum). In my opinion Ex. A and A1 for u/s 2 (XVIII) of NDPS Act. After chemical analysis remnant of the exhibit were scaled with the seal of MS FSL Delhi. The FSL report to this effect has been proved as Ex PW4/A. 8 PW5 HC Chand Ram has inter alia deposed that he was posted as MHC(M) PS Crime Branch, Nehru Place on 12.02.2010 and he has proved the entries in the malkhana register maintained by him w.r.t. deposit of 06 pullandas, two FSL forms, two carbon copies of seizure memos and jamatalashi of accused persons in register no. 19 vide Sr No. 35/10 as Ex PW5/A. He has also proved the entry dated 26.02.2010 vide which PW1 Ct Dharmender had taken two pullandas duly sealed with seal of PS and KSY along with form FSL vide RC No. 66/21/2010 which has been proved as Ex PW5/B. He deposed that on 14.05.2010 two parcels sealed with seal of MS FSL Delhi were deposited by PW10 ASI Rajbir Singh in the malkhana vide an entry and the copy of the acknowledgment of case acceptance handed over to him by PW1 after depositing case property in FSL Rohini has been proved as Ex PW5/C. He deposed that the case property remained intact till it was in his possession.
9 PW6 HC Amar Singh deposed that on 12.02.2010 at about 12.45pm PW3 Ct Harender Singh handed one tehrir sent by PW9 ASI Paramjeet Singh on the basis of which he got typed the case FIR from the computer operator. The copy of the FIR has been proved as Ex PW6/A. He deposed that after registration of FIR, he handed over the copy of FIR to PW3 and further investigation of the case was handed over to PW10 ASI Rajbir Singh. The endorsement made by PW6 on the rukka has been proved as Ex PW6/B. He deposed that he started to record the FIR at 12.45pm and lodged DD No. 6 to that effect which has been proved as Ex SC No. : 8680/2016 FIR No.: 14/10 U/S: 15/29 NDPS Act PS: Crime Branch State Vs Deepak Tomer @ Deepak & Anr. Page no. 8 of 27 PW6/C. He deposed that he had concluded registration of FIR at 2.10pm and lodged DD No. 9 to that effect which has been proved as Ex PW6/D. 10 PW7 HC Om Prakash was posted as Reader to ACP Narcotics Cell, Shakarpur, Delhi on 12.02.2010 and at about 6.10am, a DD No. 4 dated 12.02.2010 was forwarded to Insp. Narcotics Cell who further forwarded the same to ACP Narcotics and CP Sh Sube Ram Yadav. The said DD has been proved as Ex PW7/A. He deposed that he had put the said DD before ACP Sh Sube Ram Yadav on 12.02.2010 itself and said ACP put his signatures on the same. PW7 made entry in diary register at Sr. no. 275 on 12.02.2010 which has been proved as Ex PW7/B. He further deposed that on 12.02.2010 special report u/s 57 NDPS Act was prepared by PW9 ASI Paramjeet Singh regarding seizure of 53 kg Poppy Straw which was forwarded to Insp. Narcotics Cell and was further forwarded by the Insp. to ACP N & CP on 12.02.2010 itself. He deposed that the said report was received in their office on 13.02.2010 which was placed by him before ACP Sh Sube Ram Yadav which he forwarded to Addl. DCP Crime. The original report received in the office of PW7 has been proved as Ex PW7/C bearing signatures of ACP Sh Sube Ram Yadav and Sh Sanjay Tyagi, Addl. DCP. PW7 deposed that he could identify the signatures of said officials as he had seen him writing and signing and had worked with them. An entry to that effect made by PW7 in the diary register has been proved as Ex PW7/D. Similarly, the special report u/s 57 NDPS Act prepared by PW10 ASI Rajbir Singh regarding arrest of accused persons and received in the office of PW7 on 13.02.2010 has been proved as Ex PW7/E and the corresponding entry has been proved as Ex PW7/F. 11 PW8 Insp. Kuldeep Singh was posted as SHO PS Crime Branch on 12.02.2010 and deposed to the effect that on that day at about 12.50pm, PW3 came to his office and handed over to him six pullandas Mark A, B, A1, B1, C, C1, two FSL forms and two carbon copy of seizure memo of Poppy Straw. The 06 pullandas and both the FSL forms were having the seal of PS. He deposed that he put one seal of KSY each on said 06 pullandas and both the FSL forms, he put FIR Nos. on the carbon copy of seizure memos, both the FSL forms and all the pullandas alongwith his signatures. He called PW5 HC Chand Ram, MHC(M) SC No. : 8680/2016 FIR No.: 14/10 U/S: 15/29 NDPS Act PS: Crime Branch State Vs Deepak Tomer @ Deepak & Anr. Page no. 9 of 27 along with register no. 19, handed over the aforesaid articles to him, PW5 made relevant entries in register no. 19, PW8 signed the same and MHC(M) took the aforesaid property in his possession. PW8 registered DD no. 7 in that regard which has been proved as Ex PW8/A. He deposed that on 26.02.2010 upon his instructions, PW5 entrusted the pullandas Mark A and A1 with both the FSL forms and other relevant documents to PW1 for depositing the same in FSL, Rohini. 12 PW10 ASI Rajbir Singh is the 2nd IO of the case who was handed over the investigation of this case on 12.02.2010 upon instructions of PW11. On that day at about 1.45pm, he left his office vide DD no. 11 Ex PW10/A, reached the spot at about 2.15pm where he met PW9, PW2 along with accused persons and PW9 handed over to him all the relevant investigation papers and accused. The site plan prepared by PW10 at the instance of PW9 has been proved as Ex PW10/B. He interrogated both the accused persons, arrested them, conducted their personal search and recorded their disclosure statements. He collected the copy of FIR and original rukka from PW6 and deposited personal search of both the accused with PW5. He also produced both the accused before PW11 in his office who made enquiries from them. He also gave information regarding arrest of accused persons to their relatives vide DD No.16 Ex PW10/C. He also prepared report u/s 57 NDPS Act of arrest of both the accused persons Ex PW10/D and produced it before PW11. He also collected the FSL result and after completing the investigation, the challan was prepared and filed in the court.
13 PW11 Insp. M L Sharma has deposed that on 12.02.2010 he was posted as Insp. Incharge at PS Narcotics Cell, Shakarpur, Delhi and on that day at about 6am, PW9 came along with the secret informer to his office and informed him about the secret information. PW11 gave the said information to Sh S R Yadav, ACP, Narcotics Cell at his residence telephonically who directed him to take immediate legal action. He also directed PW9 to constitute a raiding team, to conduct the raid, PW9 recorded DD No. 4 Ex PW7/A in that regard and copy of the said DD was handed over to PW11 for compliance u/s 42 NDPS Act. He deposed that PW9 prepared a raiding party upon his instructions consisting of PW9, PW2 and PW3 and after briefing them left the police station with members of the raiding party SC No. : 8680/2016 FIR No.: 14/10 U/S: 15/29 NDPS Act PS: Crime Branch State Vs Deepak Tomer @ Deepak & Anr. Page no. 10 of 27 alongwith secret informer vide DD no. 5 at 6.30 am in the government gypsy bearing No. DL 1CJ 3481 being driven by PW7 HC Om Prakash. He further deposed that at about 1.45 pm PW7 came to the office of Narcotics Cell and PW10 ASI Rajbir Singh was deputed as second IO of the case who left the office of Narcotics Cell in the gypsy being driven by PW7. He deposed that about 7.30 pm, PW10 alongwith the raiding team and both the accused persons came to the office of Narcotics Cell where PW10 produced the accused persons before him. He also deposed that on 12.02.2010, PW9 entrusted him with the special report u/s 57 NDPS Act Ex.PW7/C regarding seizure of 53 kg Poppy Straw which was forwarded by him to senior officials ie ACP N and CP by putting his signatures. He further deposed that on 12.02.2010 itself, PW9 entrusted him with a special report u/s 57 NDPS Act Ex.PW7/E regarding arrest of accused persons which was also forwarded by him to senior officials ie ACP N and CP by putting his signatures. 14 PW12 HC Rojalia has deposed that on 26.02.2010 she was duty officer at PS Crime Branch, Nehru Place and on the said day at about 8.05 am, PW1 Ct. Dharmender had left the office of Crime Branch to go to FSL, Rohini and in that regard she had recorded DD no. 3 Ex.PW12/A. She deposed that PW1 had returned back to Crime Branch office at about 3.05 pm and in that regard she had recorded DD no.14 Ex.PW12/B. 15 The entire aforementioned incriminating evidence was put to the accused persons and their respective statements u/s 313 Cr.P.C were recorded. Both the accused persons denied all the incriminating evidence on record against them and stated that they were innocent and have been falsely implicated in the present case.
15.1 Accused Deepak Tomer inter alia stated in his statement u/s 313 Cr.P.C that he had no knowledge about the secret information, the secret information if received was false , he was never involved in the supply of Poppy Straw and he did not even know his co-accused before his apprehension in this case. He also stated that he was not apprehended in the manner as deposed by the prosecution witnesses, on 12.02.2010 he had come to Delhi from Madhya Pradesh to meet his sister Manju who used to reside in Chittranjan Park, he had SC No. : 8680/2016 FIR No.: 14/10 U/S: 15/29 NDPS Act PS: Crime Branch State Vs Deepak Tomer @ Deepak & Anr. Page no. 11 of 27 boarded a bus from Madhya Pradesh to come to Delhi at 12 midnight and the said bus had reached CNG petrol pump in Sarai Kale Khan at about 5:00-6:00 am when he was apprehended by the police. He stated that there were few police officials who were standing at the petrol pump, one boy got down from the bus and ran away immediately after the bus stopped, 2-3 police officials ran behind him, other police officials got into the bus and asked him and 4-5 other boys who were in the bus and were of same age to accompany them. He stated that no katta was in his possession when he was apprehended and he was not sitting on any katta on the footpath as deposed by the police officials. He stated that no notice u/s 50 NDPS Act was served upon him or his co-accused in his presence, police officials gave beatings to him with danda on his back, told him to sign blank papers, he was totally illiterate, he did not know what was written on the documents that the police officials had got signed from him and that they had got signed from him some blank and some partly written documents. He further stated that nothing at all was recovered from him and no samples from any substance were drawn in his presence as nothing was recovered. He stated that he has not given any disclosure, police officials gave beatings to him with danda on his back,told him to sign blank papers, the personal search articles shown to have been recovered from him were actually recovered and that the police has not shown Rs. 300 - 400/- in cash and the bus tickets which he was carrying in his personal search memo. He stated that no Poppy Straw was recovered from him and he has nothing to do with the case property produced before the court. He further stated that he heard the police officials talking among themselves that they had recovered some plastic kattas from the seat behind the driver seat of the above said bus, the boy who had ran away from the bus was brought to the police station but he and other boys were let off by the police officials, he was not permitted to go as the police officials were demanding Rs. 50,000/- from him which he refused being poor, gave beatings to him with a danda on his back and made him sign 4-5 blank papers. To a court query, the accused stated that he was not taken to any hospital for medical examination and that he was told about the police officials not to tell anything to SC No. : 8680/2016 FIR No.: 14/10 U/S: 15/29 NDPS Act PS: Crime Branch State Vs Deepak Tomer @ Deepak & Anr. Page no. 12 of 27 the Ld. Judge about beatings given to him and that if he would admit his guilt before the court, he would be allowed to go. He stated that he was never in supply of business of Poppy Straw, no such substance was recovered from him and he was not carrying any plastic katta with him. He preferred not to lead any defence evidence.
15.2 Accused Manpreet Singh inter alia stated in his statement u/s 313 Cr.P.C that he had no knowledge about the secret information, which if received was false, he was never involved in supply of Poppy Straw and did not know his co- accused before his apprehension in this case. He stated that he was not apprehended in the manner deposed by the prosecution witnesses, no notice u/s 50 NDPS Act was served upon him or his co-accused in his presence, he was given beatings with danda on his legs by police officials, he being illiterate signed some blank and some partly written documents, nothing was recovered from his co-accused in his presence, no samples were drawn in his presence and nothing at all was recovered from him. He stated that he was falsely arrested in this case, he had not given any disclosure, the personal search articles shown were actually recovered from him, however, two bunches of kadas, Rs.2000-3000/- in cash and the bus ticket which he was carrying was not shown in his personal search memo and no contraband was recovered from his possession. He further stated that he was a resident of Amritsar and used to supply kadas (bangles) at Gurudwara Shishganj and Bangla Saheb in Delhi and local Gurudwara in Agra. He stated that on the date of his apprehension he was coming from Agra to Delhi in a bus which had originated from Madhya Pradesh, after the bus reached Sara Kale Khan in the morning, 2-3 police officials in uniform and 2-3 in civil clothes got into his bus and he saw one boy jumping out of the window of the bus. He stated that some police officials chased the boy jumping out of window of the bus whereas remaining rounded up him and few other boys who were aged about 25-26 years as sitting in the bus including his co-accused Deepak Tomer. He stated that they were taken to a police station, given beatings, the boy who had ran away was also brought to the police station but he was let off, the police officials demanded Rs.50,000/- from him , police SC No. : 8680/2016 FIR No.: 14/10 U/S: 15/29 NDPS Act PS: Crime Branch State Vs Deepak Tomer @ Deepak & Anr. Page no. 13 of 27 officials took Rs. 2000- 3000/- which he was carrying , gave beatings to him on his legs with dandas , made him to sign 4-5 blank documents and he being illiterate did not know what was written on the said documents including some blank and some partly written documents. He stated that he was never in supply of business of Poppy Straw and no such substance was recovered from him and further he was not carrying any plastic katta with him. He also preferred not to lead any defence evidence.
16. I have heard the final arguments on behalf of Ld. Addl. PP for the State and Ld. defence counsel on behalf of the accused persons. I have also perused the written submissions as filed on behalf of accused persons.
17. The Ld. counsel for accused persons has advanced the following arguments :-
(i) it was argued that both the accused persons were not in conscious possession of the contraband substance and merely because the accused were sitting on a bag or were trying to lift the bags, it could not be said that they were in conscious possession of the contents of the bags. In that regard, he referred to the judgments of Hon'ble apex court in cases Inder Sain Vs. State of Punjab, (1973)2 SCC 372 and Gian Chand Vs. State of Haryana, AIR 2013 SC 3395. He contended that the prosecution never said that the accused persons were trying to hide themselves or even tried to run away after seeing a gypsy coming towards them.
(ii) Both the accused persons being illiterate could not have written with red ink on one bag (katta) and the word 'Nirma' on the other katta in Hindi. There was thus a possibility that they were carrying the bags without the knowledge regarding the contents of the bags and they were mere labourers to transport the bags from one place to another.
(iii) The secret information was to the effect that two persons would come to ISBT, Sarai Kale Khan to supply chura post to someone but the raiding party comprising of three police officials from crime branch did not catch hold of the person to whom the accused persons would have supplied the bags, which in the opinion of Ld.defence counsel created a doubt on the story of the prosecution.
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(iv) the FSL report was prepared casually as PW4 in her statement as well as FSL report did not mention about the percentage of various substances found in the samples of the contraband. It was argued that since the percentage of the content was not available, therefore, the accused persons deserved acquittal as it was not certain as to what quantity of contraband they were actually carrying on that day.
(v) Although the recovery was effected from a public place but even then no public witness was joined in the raid and seizure. It was contended that no serious efforts were made by the police officials to join the public witnesses despite the alleged place being a thickly populated area, hence , it would show that the accused persons were falsely implicated in the case.
(vi) It was also argued that there was non compliance of section 50 NDPS Act and it vitiates the whole trial as the said mandatory procedure was not followed.
He also referred to the judgments of Hon'ble Apex Court in cases of State of Rajasthan Vs. Parmanand, 2014 (3) LRC46(SC) and State of Punjab Vs. Baldev Singh, 1999 SCC (Cri) 1080(Hon'ble Constitutional Bench).
18. Per contra, Ld. Addl. PP for State argued that the prosecution has been able to prove its case against both the accused persons beyond reasonable doubt. He argued that the depositions of the prosecution witnesses including the material recovery witnesses ie PW2, PW3 and PW9 are more or less consistent with respect to the search and seizure proceedings. He also argued that there was a complete compliance of mandatory provisions of section 42 and section 50 NDPS Act and also other directory provisions. He argued that even otherwise provisions of section 50 NDPS Act would not apply to any search or seizure where the article was not being carried on the person of the accused as in the present case it was being carried in kattas (bags). He referred to the judgments of Hon'ble Apex Court in cases of Ajmer Singh Vs. State of Haryana, (2010)3 SCC 746, State of Rajasthan Vs. Parmanand, AIR 2014 SC 1384, State of H. P. Vs. Pawan Kumar, (2005) 4 SCC 350, State of Rajasthan Vs. Tara Singh, (2011) 11 SCC 559, State of Haryana Vs. Ranbir @ Rana, AIR 2006 SC 1796 and Jarnail Singh Vs. State of Punjab, AIR 2011 SC 964. He argued that SC No. : 8680/2016 FIR No.: 14/10 U/S: 15/29 NDPS Act PS: Crime Branch State Vs Deepak Tomer @ Deepak & Anr. Page no. 15 of 27 mere non joining of public witnesses would not make the case of the prosecution doubtful as police officials are presumed to act honestly and conscientiously and their evidence cannot be discarded merely on the ground that they were interested in the success of the case. He also referred in that regard to the judgments in cases of M. Prabhu Lal Vs. Assistant Director of Revenue Intelligence, (2003) 3 JCC 1631 and State of Kerala Vs. M.M. Mathew, 1978 Cri.L.J 1690. He has also rebutted the contentions of Ld. counsel of the defence stating that the same are without any merits and that the accused persons were found in conscious possession of the contraband.
19. As far as the recovery of contraband from the accused persons is concerned, it is relevant here to mention that as per the case of prosecution, there was recovery of 33kg of Poppy Straw from the accused Deepak Tomer @ Deepak and 20 kg of Poppy Straw from the accused Manpreet Singh from one katta (bag) each on which they were sitting and at the time when they tried to lift their respective kattas on 12.02.2010 at about 7 am at in gate of ISBT, Sarai Kale Khan, New Delhi. The members of the raiding team ie PW9 SI Paramjeet Singh, PW2 HC Sanjeev Kumar and PW3 Harinder Singh have deposed about and described the search and seizure proceedings in detail. There is no contradiction in the testimony of said material witnesses who were members of the raiding party and they seem to be reliable witnesses. The case property and the samples were sealed at the spot and were taken into possession vide seizure memos Ex. PW2/C (with respect to accused Deepak) and Ex. PW2/D (with respect to accused Manpreet Singh).
20. The fact that after seizure the case property was kept in safe custody has been proved by PW8 Inspector Kuldeep Singh who was posted as SHO PS Crime Branch at the relevant time. He has proved that he put his seal of KSY on all the 6 pulandas and both the FSL forms when they were produced before him and the same were already sealed with the seal of PS and that he got them deposited with malkhana alongwith carbon copy of the seizure memos. His statement has been corroborated by PW5 HC Chand Ram who was working as malkhana Incharge at the relevant time and has also proved the relevant entries SC No. : 8680/2016 FIR No.: 14/10 U/S: 15/29 NDPS Act PS: Crime Branch State Vs Deepak Tomer @ Deepak & Anr. Page no. 16 of 27 in the malkhana register.
21. PW9 SI Paramjeet Singh has deposed that he prepared the special report u/s 57 NDPS Act regarding seizure of 53 kg Poppy Straw from the accused persons which was entrusted by him with PW11 Inspector M.L. Sharma, Inspector Narcotics Cell which was further forwarded by him to ACP N and CP on 12.02.2010. The said report was received in the office of ACP Narcotics Cell, Shakarpur, Delhi on 13.02.2010 and placed by PW7 HC Om Prakash before ACP Sube Ram Yadav which he had forwarded to Additional DCP Crime. The said report has been proved as Ex. PW7/C (also Ex.PW9/B). The relevant entry to the diary register of ACP Narcotics Cell, Shakarpur, Delhi has been proved as Ex. PW7/D. Similarly, PW10 ASI Rajbir Singh has deposed that he prepared the special report u/s 57 NDPS Act dated 12.02.2010 regarding arrest of both the accused persons which was produced by him before PW11 Inspector M.L. Sharma, Inspector Narcotics Cell who further forwarded it to his senior officials ie ACP N and CP. The said report was received in the office of ACP Narcotics Cell, Shakarpur, Delhi on 13.02.2010 which was placed by PW7 HC Om Prakash before ACP Sube Ram Yadav which was further forwarded to Additional DCP crime. The said report has been proved as Ex. PW7/E (also Ex. PW10/D). The witnesses ie PW7, PW9, PW10 and PW11 have corroborated each other in that regard.
22. The testimony of PW1 HC Dharmender Singh proves that the samples mark A and A-1 which were drawn from the recovered substance were kept in proper custody and those alongwith two FSL forms were deposited with FSL, Rohini, Delhi on 26.02.2010 for examination, he had obtained receipt of the same and handed it over to PW5 HC Chand Ram,MHCM. Copy of Road Certificate no. 66/21/2010 dated 26.02.2010 vide which PW1 had taken the said sealed parcels to FSL Rohini has been proved as Ex. PW5/B and the photocopy of the acknowledgment receipt issued by FSL in that regard has been proved as Ex. PW5/C.
23. PW4 Dr. Madhulika Sharma, Assistant Director FSL, Rohini has deposed and proved that the parcels mark A and A-1 were found to contain Morphine , SC No. : 8680/2016 FIR No.: 14/10 U/S: 15/29 NDPS Act PS: Crime Branch State Vs Deepak Tomer @ Deepak & Anr. Page no. 17 of 27 Codeine, Thebaine, Papaverine, Narcotine, Meconic acid and Porphyroxine which main constituents of Poppy Plant (Papaver Somniferum) and these fall under section 2(XVIII) of NDPS Act, 1985. The said report of PW4 has been proved as Ex. PW4/A.
24. The testimony of the prosecution witnesses is trustworthy and believable and nothing has emerged in their cross examination which could cast any doubt on the veracity of their statements or which would impeach their creditworthiness.
25. Now it is proposed to deal with the contentions of the Ld. Defence counsel.
26. One of the contention of the defence was that both the accused persons were not in conscious possession of the contraband substance and merely because the accused were sitting on a bag or were trying to lift the bags, it could not be said that they were in conscious possession of the contents of the bags. In that regard, Ld. defence counsel has also relied upon one of the judgment of Hon'ble Supreme Court of India titled as "Gian Singh (Supra)". The Hon'ble Apex Court in this judgment has inter alia held as under:
" 14. From the conjoint reading of the provisions of Sections 35 and 54 of the Act, it becomes clear that if the accused is found to be in possession of the contraband article, he is presumed to have committed the offence under the relevant provisions of the Act until the contrary is proved. According to Section 35 of the Act, the court shall presume the existence of mental state for the commission of an offence and it is for the accused to prove otherwise.
Thus, in view of the above, it is a settled legal proposition that once possession of the contraband articles is established, the burden shifts on the accused to establish that he had no knowledge of the same.
15. Additionally, it can also be held that once the possession of the contraband material with the accused is established, the accused has to establish how he SC No. : 8680/2016 FIR No.: 14/10 U/S: 15/29 NDPS Act PS: Crime Branch State Vs Deepak Tomer @ Deepak & Anr. Page no. 18 of 27 came to be in possession of the same as it is within his special no knowledge and therefore, the case falls within the ambit of the provisions of Section 106 of the Evidence Act, 1872".
26.1. In the case in hand, as discussed above, the prosecution has proved beyond reasonable doubt that the accused persons were sitting on one katta each containing contraband substance (Poppy Straw) and they were apprehended while they were in the process of lifting the said katta containing contraband substance and thus, the contraband was recovered from them. The possession of the contraband substance with the accused persons has thus been proved beyond reasonable doubt by the prosecution in this case. Thereafter, in view of the above said settled law, the court shall presume the culpable mental state of the accused persons for the commission of the offence u/s 35 of NDPS Act and the burden shifts on the accused persons to establish that they had no knowledge of the same or how they came to be in possession of the same as it was within their special knowledge u/s 106 of Indian Evidence Act, 1872. The accused persons have attempted to dispel this presumption in their respective statements u/s 313 Cr.P.C trying to state that the police officials left the true offender and falsely implicated them in this case while they were travelling in a bus as they could not meet the illegal monetary demand of the police officials and no Poppy Straw was recovered from them. It would be pertinent to note that the accused persons have preferred not to lead any defence evidence to prove their respective contentions u/s 313 Cr.P.C. The prosecution on the other hand by reliable testimony of PW2, PW3 and PW9 has proved beyond reasonable doubt that the accused persons were found in possession of the contraband in their respective katta upon which they were initially sitting and subsequently which the accused persons were trying to lift when they were apprehended in this case. The seizure memos in that regard have also been proved as Ex. PW2/C and PW2/D with respect to accused Deepak and Manpreet Singh respectively. As the accused persons have failed to lead any evidence to show SC No. : 8680/2016 FIR No.: 14/10 U/S: 15/29 NDPS Act PS: Crime Branch State Vs Deepak Tomer @ Deepak & Anr. Page no. 19 of 27 as to how they came to be in possession of the contraband, hence, the prosecution has been able to prove beyond reasonable doubt that the accused persons were in conscious possession of the contents of their respective kattas (bags) ie they were in conscious possession of the contraband. The said contention of Ld. defence counsel is thus without any merits and is liable to be rejected.
27. In another contention, the Ld. defence counsel has argued that the accused persons being illiterate could not have written with red ink on one katta and the word 'Nirma' on the other katta in Hindi and that it would create a possibility that they were carrying the bags without the knowledge regarding the contents of the bag and they were mere labourers to transport the bags from one place to another.
27.1. The said contention of the defence is completely contradictory to the defence taken by the accused persons in their respective statements u/s 313 Cr.P.C wherein they have inter alia denied that they were carrying any plastic katta. The accused persons cannot state on the one hand that they were not carrying any plastic katta and argue on the other hand that they were mere labourers to transport the bags from one place to another. Further, it is not the case of the prosecution that the accused persons had written anything on their respective katta. Moreover, it is a case of conscious possession of contraband by the accused persons against the provisions of NDPS Act and anything found written on kattas is immaterial to the outcome of the case. As discussed above, the prosecution has been able to prove beyond reasonable doubt that the accused persons were in conscious possession of the contents of their respective kattas (bags) ie they were in conscious possession of the contraband. The said contention of Ld. defence counsel is thus without any merits and is liable to be rejected.
28. Ld. defence counsel has argued that a doubt on the story of the prosecution is raised as the secret information was to the effect that two persons would come to ISBT, Sarai Kale Khan to supply chura post to someone but the raiding party comprising of 3 police officials from Crime Branch did not catch SC No. : 8680/2016 FIR No.: 14/10 U/S: 15/29 NDPS Act PS: Crime Branch State Vs Deepak Tomer @ Deepak & Anr. Page no. 20 of 27 hold of the person to whom the accused persons would have supplied the bags.
28.1. DD no. 4 dated 12.02.2010 Narcotics Cell, Shakarpur, Delhi Ex. PW7/A vide which secret information was reduced into writing would show that as per information the secret informer informed that two persons namely Deepak and Manpreet bring chura post from Gwalior, Madhya Pradesh and then supply it in wholesale and retail, both the said persons would also come on 12.02.2010 at about 6.30 am to 7 am at Sarai Kale Khan bus stand to supply chura post to someone and they could be apprehended in that process.
28.2. PW2, PW3 and PW9 have deposed to the effect that both the accused persons were sitting on one plastic katta each at footpath towards in-gate of Sarai Kale Khan and while the accused persons tried to lift their respective kattas then in the meanwhile they were apprehended. PW9 has also deposed that the accused persons were trying to leave the spot. It thus seems that the raiding party waited till the accused persons were sitting on their respective katta and only apprehended them while they tried to lift their respective katta in the process of leaving the spot. The sequence of apprehension of the accused persons is thus in the ordinary course of events and thus no doubt at all is created on the story of the prosecution by the fact that the raiding party did not catch hold of the person to whom the accused persons would have supplied the bags. This contention of the defence is thus also bound to fail and is rejected accordingly.
29. One other defence was that the FSL report Ex. PW4/A as prepared by PW4 did not mention about the percentage of various substances found in the samples of the contraband, therefore the accused persons deserved acquittal as it was not certain as to what quantity of contraband they were actually carrying on that day.
29.1. In this regard, it would be pertinent to note that FSL report Ex.PW4/A would show that upon result of examination it was opined that Ex.A and A-1 were found to contain Morphine , Codeine, Thebaine, Papaverine, Narcotine, SC No. : 8680/2016 FIR No.: 14/10 U/S: 15/29 NDPS Act PS: Crime Branch State Vs Deepak Tomer @ Deepak & Anr. Page no. 21 of 27 Meconic acid and Porphyroxine which main constituents of Poppy Plant (Papaver Somniferum) and these fall under section 2(XVIII) of NDPS Act, 1985. The Table mentioning the NOTIFICATION SPECIFYING SMALL QUANTITY AND COMMERCIAL QUANTITY AS APPENDED with NDPS Act, 1985 would show that Note-4 was inserted to it on 18.11.2009 to the effect as follows:
' The quantities shown in column 5 and column 6 of the Table relating to the respective drugs shown in column 2 shall apply to the entire mixture or any solution or any one or more narcotic drugs or psychotropic substances of that particular drug in dosage form or isomers, esters, ethers and salts of these drugs, including salts of esters, ethers and isomers, wherever existence of such substance is possible and not just its pure drug content' (emphasis supplied).
29.2. The above said Note-4 of the Table would thus show that the purity or the pure drug content of the recovered contraband is not to be seen and the entire mixture is to be considered for the offence. In the said circumstances even if the percentage of various substances found in the samples of contraband is not mentioned in FSL report Ex. PW4/A, it cannot be argued that the said report was prepared casually or that the accused persons deserve acquittal as the percentage of content has not been mentioned. The said argument is thus also fallacious and is liable to be rejected.
30. One more argument of the defence was that the public witnesses were not joined at the time of search and seizure proceedings despite the alleged place being a thickly populated area.
30.1. The said argument is also without merits. It is now fairly well settled that merely because independent witnesses were not joined in the investigation, it would not render the testimony of police officials untrustworthy. If the testimony of the police officials is found trustworthy, in SC No. : 8680/2016 FIR No.: 14/10 U/S: 15/29 NDPS Act PS: Crime Branch State Vs Deepak Tomer @ Deepak & Anr. Page no. 22 of 27 such circumstances, it can be acted upon even in the absence of independent witnesses. In State of Kerala Vs. M.M. Mathew, 1978 Cri.L.J 1690, it was held that the police officials/public servants have to be presumed to have acted honestly and conscientiously, their evidence has to be assessed on its intrinsic worth and their evidence cannot be discarded merely on the ground that they are interested in the success of the case.
There is no reason why the accused would be falsely implicated by the police officials in this case. It is not the case of the accused persons that the police officials had any grudge against them. It is of common knowledge that generally the public witnesses are disinterested to join such proceedings due to variety of reasons. The evidence of the police officers cannot be discarded merely on the ground that they belong to the police force, and are either interested in the investigating or the prosecuting agency.
The evidence of the police officials has been found to be trustworthy and reliable in this case. In these circumstances, non joining of public witnesses would not cause any prejudice to the accused persons and hence it would not dent in any manner the case of the prosecution. The said argument sans merits is accordingly rejected.
31 The last contention raised by the Ld. defence counsel was that there was non compliance of Section 50 NDPS Act and it vitiates the whole trial as the said mandatory procedure was not followed.
31.1 The Ld. counsel for accused persons has relied upon the judgment of Hon'ble Apex Court in case of State of Punjab Vs Baldev Singh (supra) wherein it was inter alia held that when an empowered officer or a duly authorized officer acting on prior information is about to search a person, it is imperative for him to inform the person concerned of his right under Section 50 (1) of being taken to the nearest Gazetted Officer or the nearest Magistrate for making the search, however, such information may not necessarily be in writing. It was also held that failure to inform the person concerned about the existence of his right to be searched before a Gazetted Officer or a Magistrate would cause prejudice to an accused. It was further held that a search made by an empowered officer, on prior information, SC No. : 8680/2016 FIR No.: 14/10 U/S: 15/29 NDPS Act PS: Crime Branch State Vs Deepak Tomer @ Deepak & Anr. Page no. 23 of 27 without informing the person of his right that if he so requires, he shall be taken before a Gazetted Officer or a Magistrate for search and in case he so opts, failure to conduct his search before a Gazetted Officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of possession of the illicit article, recovered from his person, during a search conducted in violation of the provisions of Section 50 of the Act. It was further inter alia held that whether or not the safeguards provided in Section 50 have been duly observed would have to be determined by the court on the basis of the evidence led at the trial.
31.2 One other judgment which has been relied upon by the Ld. defence counsel is State of Rajasthan Vs Parmanand (Supra). In that case, the Hon'ble Apex Court held to the effect that a joint communication of the right u/s 50 (1) of NDPS Act may not be clear or unequivocal, it may create confusion and it may result in diluting the right. The Hon'ble Apex Court was therefore of the view that the accused must be individually informed that u/s 50 (1) NDPS Act, he has a right to be searched before a nearest Gazetted Officer or by nearest Magistrate. 31.3 In coming to the case in hand, it is evident that PW2, PW3 and PW9 have deposed to the effect that when PW9 apprehended both the accused, he introduced himself and the members of the raiding party, he also told the accused persons that they had been bringing Chura Post, he needed to take their search, if they wanted the search could be conducted in front of a Magistrate or a Gazetted officer and also asked the accused persons to conduct search of the members of the raiding party and govt vehicle. PW9 also deposed that accused persons refused to get themselves searched before the Magistrate or a Gazetted Officer or to take the personal search of the member of the raiding party and govt vehicle. PW9 deposed that he served notice u/s 50 NDPS Act to both the accused persons and the said notices have been proved as Ex PW2/A (qua accused Deepak) and Ex PW2/B (qua accused Manpreet Singh). He has deposed that both the accused were illiterate and reply on behalf of accused persons were also written by him. In cross examination, PW9 has denied the suggestion that no notice u/s 50 NDPS Act SC No. : 8680/2016 FIR No.: 14/10 U/S: 15/29 NDPS Act PS: Crime Branch State Vs Deepak Tomer @ Deepak & Anr. Page no. 24 of 27 was served upon the accused or that the notices u/s 50 NDPS Act were prepared while sitting in the office of Narcotics Cell. PW2 in his cross examination has deposed to the effect that notice u/s 50 NDPS Act was served upon the accused before opening the kattas/bags. PW3 in his cross examination has denied the suggestion that no notice u/s 50 NDPS Act was given before search of accused persons. PW3 further deposed in his cross examination that first of all the notices u/s 50 NDPS Act were given to the accused and thereafter they had given their refusals. It is thus evident that nothing has appeared in the cross examination of PW2, PW3 and PW9 to discredit their testimony on the said issue. The notices u/s 50 NDPS Act i.e. Ex PW2/A and Ex PW2/B also show that all necessary legal requirements were complied with by PW9 ASI (later on SI) Paramjeet Singh. In the said circumstances and discussion, it is safe to hold that the safeguards provided in Section 50 NDPS Act were duly observed by the raiding party including PW9. 31.4 Further, the facts of the case would show that the recovery of the contraband was effected from the accused persons from the katta/bag which they were respectively carrying as distinguished from their personal search. The Hon'ble Supreme Court of India in case of State of H. P. Vs Pawan Kumar (supra) has inter alia held as follows:-
"13. The scope and ambit of Section 50 of the Act was examined in considerable detail by a Constitution Bench in State of Punjab Vs Baldev Singh, (1999) 6 SCC 172: 1999 SCC (Cri) 1080 and para 12 of the Report is being reproduced below:-
12. On its plain reading, Section 50 would come into play only in the case of a search of a person as distinguished from search of any premises etc. However, if the empowered officer, without any prior information as contemplated by Section 42 of the Act makes a search or causes arrest of a person during the normal course of investigation into an offence or suspected offence and on completion of that search, a SC No. : 8680/2016 FIR No.: 14/10 U/S: 15/29 NDPS Act PS: Crime Branch State Vs Deepak Tomer @ Deepak & Anr. Page no. 25 of 27 contraband under the NDPS Act is also recovered, the requirements of Section 50 of the Act are not attracted. .........................................................................................
14. The above quoted dictum of the Constitution Bench shows that the provisions of Section 50 will come into play only in the case of personal search of accused and not of some baggage like a bag, article or container, etc. which he may be carrying."
31.5 The Hon'ble Apex Court in the case of State of Rajasthan Vs Tara Singh (supra) has inter alia held as follows:-
"4. At the very outset, it must be understood that the provisions of Section 50 would no longer be applicable to a search such as the one made in the present case as the opium had been carried on the head in a gunny bag. A Bench of this Court in State of H. P. Vs Pawan Kumar, (2005) 4 SCC 350: 2005 SCC (Cri) 943 after examining the discrepant views rendered in various judgments of this Court has found that Section 50 of the Act would not apply to any search or seizure where the article was not being carried on the person of the accused. Admittedly, in the present case, the opium was being carried on the head in a bag...................."
31.6 In the present case also although proper compliance of Section 50 NDPS Act was done by the police officials, however, in view of the above said settled law it is evident that as the recovery was made from kattas in contrast to person of the accused persons, therefore, Section 50 of NDPS Act would not apply to the case search and seizure.
31.7 The above mentioned discussion would show that the submissions of Ld. defence counsel regarding non compliance of Section 50 NDPS Act are also without any merits and are rejected accordingly.
32 In view of the above said discussion, the prosecution has been able to prove its case beyond reasonable doubt to the effect that on 12.02.2010 at about 7am at In gate of ISBT Sarai Kale Khan, New Delhi, the accused Deepak Tomer @ Deepak SC No. : 8680/2016 FIR No.: 14/10 U/S: 15/29 NDPS Act PS: Crime Branch State Vs Deepak Tomer @ Deepak & Anr. Page no. 26 of 27 was found in conscious possession of 33 kg Poppy Straw and accused Manpreet Singh was found in conscious possession of 20 kg Poppy Straw in violation of the provisions of NDPS Act and hence both the said accused persons are convicted u/s 15 (b) of NDPS Act.
33 The case property lying with MHC(M) PS Crime Branch qua this case is confiscated to the State and the State would be at liberty to dispose of the same as per the prescribed rules after the expiry of period of appeal/revision/order of the appellate court, if an appeal is preferred.
34 Let both the convicts be heard on the quantum of sentence.
Announced in the open
Court on 10.02.2017 (AMIT BANSAL)
ADDITIONAL SESSIONS JUDGE-04
PATIALA HOUSE COURTS/NEW DELHI.
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