Delhi District Court
State vs Anamulagundam Somsekhar on 30 August, 2017
IN THE COURT OF SH. LOKESH KUMAR SHARMA
ADDITIONAL SESSIONS JUDGE04 & SPECIAL JUDGE (NDPS) ACT
SOUTH EAST DISTRICT: SAKET COURTS: DELHI
Sessions Case No. 1684 of 2016 in SC No.2/14
FIR No. 34/2014
U/s. 21 NDPS Act
PS : Crime Branch (SE)
State
Vs.
Anamulagundam Somsekhar
S/o Ramaiah Anamulagundam
R/o Plot No. 232, Methamodi Homes
Silver Oak Banglows, Cheralapalli, Uppal
Rangareddy, Hyderabad, Andhra Pradesh (currently in J/C).
Instituted on : 05.04.2014
Argued on : 30.08.2017
Decided on : 30.08.2017
J U D G M E N T
1 Accused Anamulagundam Somsekhar has been sent up to face trial for
the offence under sections 21 NDPS Act by the SHO, Crime Branch, SouthEast
District, New Delhi.
2 Brief facts of the prosecution are that on 27.03.2014, at about 08:25
pm, on the road near turn of Nizamuddin Railway Station, Sarai Kale khan, New
Delhi, within the jurisdiction of PS Crime Branch (SE), accused was apprehended
by the police team headed by SI Sunil Jain on the basis of a secret information,
while he was carrying a cloth bag of black colour and during search of the said bag
after causing compliance of section 50 of NDPS Act, 8 Kg. Heroine was recovered.
After completing necessary investigations and formalities, he was arrested in this
case by IO/SI Rajni Kant Sharma and charge sheet for commission of offence under
State v. Anamulagundam Somsekhar page 1 of 43
21 of NDPS Act was filed against him by the SHO, PS Crime Branch, SothEast,
District, New Delhi.
3 After compliance of section 207 CrPC, charge for the offence under
section 21(c) of NDPS Act was framed against the accused on 06.09.2014 by my Ld.
Predecessor, to which the accused had pleaded not guilty and had claimed trail.
4 In support of its case, the prosecution had examined eleven witnesses
in all.
5 PW1 Dr. Lingaraj Sahoo, Sr. Scientific Officer, Chemistry, FSL had
deposed that on 01.04.2014, vide reference No. 413/SHO/Crime Branch/New
Delhi, two sealed cloth parcels, sealed with two seals of VSS and 3C PS/NB Delhi
were received in his office. On opening parcel marked A1, it was found containing
light brown coloured powdery material stated to be "heroin" weight 5.75 gm
(approximately) with polythene and rubber band. The other parcel mark B1 was
found containing light brown coloured powdery material stated to be "heroin"
weight 5.52 gm (approximately) with polythene and rubber band.
He had stated further that on chemical, TLC,GC & GCMS examination,
exhibits marked A1 and B1 were found to contain "Diacetylmorphine",
"6Monoacetylmorphine", "Acetyl Codeine", "Paracetamol" and "Caffeine". Exhibit
A1 and B1 were found containing Diacetylmorphine 15.0% and 14.05%
respectively.
The witness had stated further that after examination, the remnants of
exhibits were sealed with seal of LRS FSL DELHI and were forwarded to the IO. He
had placed on record the FSL result as Ex. PW1/A.
State v. Anamulagundam Somsekhar page 2 of 43
This witness was not crossexamined by Ld. Defence Counsel Sh. Michael
Peter, despite availing an opportunity in this regard.
6 PW2 ACP (Retd.) Zile Singh had stated that on 27th March 2014, he
was posted as ACP Narcotics, Crime Branch, Shakkarpur and on that day, Inspector
Vivek Pathak had telephonically informed him at about 07:00 pm that one
Somshekhar, an associate of one Ali, would come alongwith a huge consignment of
smack near H. N. Din Railway Station in between 08:00 pm to 09:00 pm and would
pass through Sarai Kalen Khan Mor and that he could be apprehended, if raided.
Upon receipt of that information, he had directed Inspector Vivek Pathak to conduct
the raid. Thereafter, he had received a report of SI Sunil Jain forwarded by
Inspector Vivek Pathak, which was Ex.PW2/A and those proceeding were recorded
in the Dairy concerned vide Sl. No. 776. He had placed on record copy of the same
which was Ex.PW2/B.
He had also placed on record the special report u/s 57 of NDPS Act Ex.
PW2/C about seizure of 8 Kg heroin prepared by SI Sunil Jain on 28 th March 2014,
which was forwarded to him vide Diary No. 777 dated 28 th March 2014.
Special Report u/s 57 NDPS Act was also forwarded to him by SI Rajnikant
Sharma regarding arrest of accused Somsekhar vide Diary No. 778 dated 28 th
March 2014 and it was routed through Inspector Vivek Pathak, which was placed
on record as Ex. PW2/D.
In his crossexamination conducted by Sh. Michael Peter, Ld. Counsel for the
accused, PW2 had stated that on 27th March 2014, Inspector Vivek Pathak was in
State v. Anamulagundam Somsekhar page 3 of 43
his office, when he had informed him, but he could not tell from which telephone
number he had informed him. He had not made any inquiry from Inspector Vivek
Pathak regarding the report u/s 42 NDPS Act, which was forwarded to him. He had
no information other than what was mentioned in the report and was
telephonically given to him by Inspector Vivek Pathak.
He had admitted the suggestion of the Ld. Defence Counsel to be
correct that before giving the directions for raid, no personal authentication was
made by him regarding the secret information. This suggestion of the defence itself
had corroborated the version of the prosecution that investigating agency had acted
upon an secret information qua the accused and it was only at the directions of
PW2 that raiding party had proceeded further to nab the accused on the basis of the
secret information. He had also denied a suggestion put to him regarding
preparation of a false report u/s 42 NDPS Act by Inspector Vivek Pathak and SI
Sunil Jain to falsely implicate the accused.
PW2 had stated during his further crossexamination conducted on behalf of
the accused that he had no confirmation regarding any previous involvement or
cases against the accused and his associate Ali. The reports u/s 57 of NDPS Act
were handed over to him by his Reader and he had not made any inquiry regarding
the reports prepared by SI Sunil Jain and SI Rajnikant which were forwarded to
him by Inspector Vivek Pathak u/s 57 NDPS Act. All other formal suggestions were
denied by him as incorrect.
7 PW3 HC Jag Narayan had stated that on 28th March 2014, he was
working as MHC(M) at PS Crime Branch, Malviya Nagar and on that day, Inspector
State v. Anamulagundam Somsekhar page 4 of 43
Virender Singh had deposited four sealed parcels duly sealed with the seal of '3C PS
NB DELHI' and 'VSS' with him, which were duly marked with Sl. No. A1, A2, B1 &
B2. He had also received another parcel duly sealed with the same seal and having
the markC, FSL Form duly sealed with seal of '3C PS NB DELHI' and 'VSS' and
seizure memo of 8 Kg heroin and he had recorded receiving of the aforesaid
exhibits vide entry No. 1962 of Register No. 19, copy of which was placed on record
as Ex.PW3/A. On the same day, he had also received copy of notice u/s 50 NDPS
Act, Election I Card and Rs.4,000/, personal search articles of accused and he had
made an entry in this regard vide Serial No. 1963 in Register No. 19 and had placed
on record copy thereof which was Ex.PW3/B.
On 01st April, 2014, he had sent the aforesaid exhibits to FSL Rohini through
Ct. Sunny Kumar vide RC No. 93/21 and on 29 th April 2014, and had received the
FSL Result duly sealed with seal of 'LRS, FSL, Delhi' through Ct. Anne Vergese. He
had placed on record the copy of RC which was Ex.PW3/C and the copy of receipt
of FSL which was Ex.PW3/D.
In his crossexamination conducted by Sh. Michael Peter, Ld. Counsel for the
accused, he had stated that in the intervening night of 27 th & 28th March 2014, he
was on duty round the clock. He could not tell as to who was the Duty Officer on
that day. SHO had called him in his office at about 01:25 am with respect to this
case. At that time, Constable Kheta Ram was also present in the office of SHO. At
about 01:25 am, he was handed over the aforesaid exhibits/case property and the
aforesaid entries in Register No. 19 were made by him. He had prepared the Road
Certificate at the direction of the SHO. He had handed over the exhibits/case
State v. Anamulagundam Somsekhar page 5 of 43
property to Ct. Sunny Kr. at about 08:00 am for sending the same to FSL. He had
received the copy of FSL Receipt (Ex.PW3/D) in the evening hours of 01 st April
2014 and he had annexed the original acknowledgment in his Register No. 21 itself.
He had made the entries in Register No. 19 (Ex.PW3/D2), which were part of the
judicial record. The entry appearing at pointX on Ex.PW3/A was not present on
Ex.PW3/D2.
He had denied the suggestion of the defence that entry at pointX on
Ex.PW3/A was false and fabricated and the same was made at instance of SHO,
SubInspectors Sunil Jain and Rajnikant. His statement u/s 161 Cr.PC was recorded
twice, firstly on 28th March 2014 and his subsequent statement was recorded on 01 st
April 2014. All other formal suggestions were denied by him as incorrect.
8 PW4 HC Rajesh Kumar had stated that on 27.03.2014, he was
posted at Narcotics Cell, Shakarpur. On that day, SI Sunil Jain had constituted a
raiding party consisting of him (PW4), HC Mahesh, HC Yogesh and Ct. Kheta Ram
at about 07:10 pm and had shared the secret information with him that he (SI Sunil
Jain) had an information that one person named Ali hails from South India, who
was engaged in supply of Heroin to Arab countries via Sri Nagar, Delhi, Hyderabad
and his associate Somashekhar, resident of Andhra Pradesh would be reaching at
Hazrat Nizamuddin Railway Station for boarding a train for Hyderabad and would
be coming at Sarai Kalen Khan turn between 08:00 to 09:00 pm and if raided, he
could be apprehended.
SI Sunil Jain took IO Bag, field Testing Kit and electronic weighing machine
and the members of the raiding party alongwith secret informer had proceeded for
State v. Anamulagundam Somsekhar page 6 of 43
the spot at about 07:15 pm vide DD Entry No. 29, in a Government vehicle Toyota
Qualis bearing Number DL1CH9804, driven by ASI Raghubir Singh. At about
07:45 pm, they had reached at Sarai Kalen Khan turn via Pusta road, Vikas Marg,
Ring Road and had taken a right turn under the Sarai Kalen Khan flyover. During
the way to the spot, SI Sunil Jain had also requested 4 public persons present at
Ramesh Park Bus Stand, 5 persons after crossing IP Estate Metro Station and 6
persons at Sarai Kalen Khan turn to join them in the raiding party, after explaining
them the secret information and he had also disclosed his identity to those public
persons, but none of them was ready to join the raiding party and all of them had
left the spot without disclosing their names and addresses.
On the direction of SI Sunil Jain, the Government Qualis vehicle was parked
towards Nizamuddin Railway Station at a distance of about 50 meters from Sarai
Kalen Khan turn and driver ASI Raghubir Singh was briefed that he would keep a
watch on the raiding party and after receiving the signal, he would reach there.
Thereafter, SI Sunil had briefed the members of the raiding party.
PW4 had stated further that he alongwith SI Sunil Jain, Ct. Kheta Ram and
the secret informer had taken their position at Sarai Kale Khan turn and other
members of the party, namely, HC Mahesh and HC Yogesh had taken their position
across the road. At around 08.25 PM, one person was seen by them, coming from
under fly over side towards Nizamuddin Railway Station, who was holding a bag on
his left shoulder. The secret informer had pointed out towards the said person from
a distance of about 10 to 15 meter and then the secret informer had left the spot.
PW4 had stated further that when the said person had come near, he was
State v. Anamulagundam Somsekhar page 7 of 43
stopped and overpowered by them. He was inquired by SI Sunil Jain about his
name. SI Sunil Jain had also informed the said person about the members of the
raiding party. After receipt of the signal, driver ASI Raghubir Singh had also
arrived at the spot.
On inquiry, they (members of the raiding party) came to know that the name
of said person was Aannamulgundam Somashekar, who was correctly identified by
the witness.
The accused had informed the IO that he knew English very well but he had
a little knowledge of Hindi language.
SI Sunil Jain had then disclosed the secret information to the said person
and had told him about taking his search. SI Sunil Jain had also informed the
accused about his legal rights that he could have got himself searched before a
Gazetted Officer or a Magistrate and if he so desired, he (SI Sunil Jain) could have
secured the presence of the said Gazetted Officer or Magistrate at the spot itself. SI
Sunil Jain had also offered his own search as well as search of other members of the
raiding party and their vehicle to the accused before conducting his own search.
Accused was also explained the meaning of Gazetted Officer and Magistrate as well.
Thereafter, a notice u/s 50 NDPS Act was prepared and carbon copy of the
same was served upon the accused. The original notice had also been placed on
record as Ex.PW4/A.
After going through the contents of the notice u/s 50 of NDPS Act, the
accused had declined to enforce his legal rights as mentioned therein and thereafter
the accused had given his written reply on the notice itself, which was Ex.PW4/B
State v. Anamulagundam Somsekhar page 8 of 43
from pointX to pointX.
Thereafter, SI Sunil Jain had also requested 810 persons, who had gathered
there to join the proceedings, but none had agreed to join and left the spot without
disclosing their names and addresses.
Thereafter, the black colour Raxine bag of the accused was taken into
possession and same was checked. It had a main pocket and two small pockets in
front of the bag with zips. All three pockets were then unzipped by them. Front two
small pockets of the bag were found empty and from the main pocket of the bag,
one white colour shirt, one blue colour jeans pant, one white colour towel (used)
were found and under these clothes, two transparent plastic polythene bag were
also noticed which were tied with the rubber band and brown colour powdery
substance was recovered from the said polythen bag.
The contents of the said bag when checked with the help of Field Testing Kit
were detected to be 'Heroin'. The recovered plastic polythene bags (theli) were
given identification markA & B. SI Sunil Jain had weighed the recovered substance
separately with the help of electronic weighing machine, which came out to be 4 kg
in each bag ( total 8 Kg). Then, SI Sunil Jain had taken out two samples of 5 gm
each from the recovered substance of each polythene bag. All four samples were
thereafter converted into cloth pullandas and were given Sl. No. A1 & A2 taken
from bag marked as A and Sl. No. B1 and B2 taken from bag marked as B and all
the samples were then sealed with the seal of '3CPSNB, DELHI'. The remaining
Heroin in poly bags A & B was tied with the rubber band and put in the same black
bag alongwith clothes and the bag was closed with the help of the zip and
State v. Anamulagundam Somsekhar page 9 of 43
thereafter the bag was also converted into a cloth parcel and was sealed with the
seal of '3CPSNB, DELHI' and the said parcel was marked as C.
The FSL Form was also filled up by SI Sunil Jain and he had also put the
same seal on the FSL Form as well. Seal after its use was handed over to him
(PW4). All cloth parcels, FSL Form were seized vide seizure memo Ex.PW3/D1
Thereafter, SI Sunil had prepared a rukka and handed over the same to Ct.
Kheta Ram alongwith all five pullandas, FSL Form, carbon copy of seizure memo at
about 12:00 (midnight) with the directions to hand over the rukka to Duty Officer
for registration of the case and copy of seizure memo, FSL Form and sealed
pullandas be handed over to SHO, PS Crime Branch for compliance of provision of
Section 55 of NDPS Act and thereafter Ct. Kheta Ram had left the spot with above
articles in Government Qualis being driven by ASI Raghubir Singh.
At about 03:45 am, SI Rajnikant had come at the spot alongwith ASI
Raghubir Singh in the same government vehicle, as the further investigation was
assigned to him. SI Sunil Jain had then handed over all documents i.e. original
seizure memo, original notice u/s 50 NDPS Act along with accused to him.
IO/SI Rajnikant had gone through the documents. He had then prepared the
site plan at the instance of SI Sunil Jain. IO had also recorded his statement.
Accused was arrested vide arrest memo Ex.PW4/C. His personal search was
also conducted in which Rs.4,000/, one voter ID Card and carbon copy of one
notice u/s 50 of NDPS Act were recovered, which were taken into possession vide
memo Ex.PW4/D. IO had also recorded disclosure statement of accused which was
placed on record as Ex.PW4/E. Thereafter, they had left the spot and come back at
State v. Anamulagundam Somsekhar page 10 of 43
the office of PS Crime Branch, where IO had deposited the personal search articles
of accused with MHC(M) HC Jag Narayan. IO had also recorded the statement of
SHO Virender Singh and MHC(M) HC Jag Narayan. Accused was also produced
before Inspector Vivek Pathak, who had also inquired the accused.
IO had recorded his arrival entry in DD Register at about 09:00 am dated
28.03.2014. IO had recorded his statement from 10:15 to 10:45 am.
PW4 had identified two polythene bags Ex. P1 and P2 and one black colour
Raxine bag with clothes of accused (used towel, blue colour jeans pant and white
colour shirt were taken out) collectively as Ex.P3, remnant of Heroin kept in small
transparent polythene pouch MarkA1 tied with rubber band as Ex.P4, one sample
of Heroin kept in small transparent polythene pouch MarkA2 tied with rubber
band as Ex.P5, remnant of Heroin kept in small transparent polythene pouch Mark
B1 tied with rubber band as Ex.P6, one sample of Heroin kept in small transparent
polythene pouch MarkB2 tied with rubber band as Ex.P7, carbon copy of notice
u/s 50 of NDPS Act as Ex. P8, one Election ID Card of the accused and Rs. 4,000/
(in denomination of Rs.1,000/ each) as Ex.P9.
In his crossexamination conducted by Sh. Michael Peter, Ld. Counsel for the
accused, PW4 had stated that he was working in the Crime Branch at Shakarpur
since June, 2011 and had participated in 8 to 10 NDPS Cases.
On 27.03.2014, he had come to the office at around 09:00/09:30 am and
had remained there till completion of his official work. He could not tell, if he had
appeared in any Court on that day and/or he had participated in any other case
prior to the present FIR on that day. He could not tell the name of the Duty Officer
State v. Anamulagundam Somsekhar page 11 of 43
working on 27.03.2014. He had denied the suggestion of the defence that none of
the activities as claimed by him had taken place at Shakarpur office of Crime
Branch or that he had never participated in any manner in the present case on
27.03.2014 and/or that he had deposed falsely at the instance of his senior police
officers.
He was briefed by SI Sunil Jain at 07:10 pm and informer was sitting with
him (SI Sunil Jain) during that briefing.
He had admitted the suggestion of the defence as correct that he could not
tell as to whom the informer had met first in their office.
This suggestion of the Ld. Defence Counsel admits the version of the
prosecution that the secret informer had come to the office of Crime Branch and
had given that the secret information qua the accused to SI Sunil Jain in Crime
Branch.
SI Sunil Jain had told him (PW4) that he had noted down the secret
information and had placed it before Inspector Vivek Pathak, who was on duty on
the said date from 09:30 am onwards. Inspector Vivek Pathak was not personally
involved in any other investigation.
The ACP Narcotics Office was in the same premises. However, ACP Crime
Branch was not present at the time when the members of the raiding party were
being briefed. Raiding Party was organized at 07:10 pm. He was joined in the
raiding party by SI Sunil Jain, but he could tell as to who had either ordered or had
actually constituted the same. The briefing could have lasted for about 2 3
minutes. He was not carrying any weapon but he could tell if any other member of
State v. Anamulagundam Somsekhar page 12 of 43
the raiding party was carrying weapons or not. No other senior Police Official other
than SI Sunil Jain was present at the time of briefing.
He could not tell if Ali and the accused were under surveillance of Crime
Branch in the present case, as it was a top level issue. He could not tell the address
of Ali and/or if any other case of similar nature was registered against said Ali and
the accused as well in any other part of the Country or not.
PW4 had stated further during his cross examination conducted on behalf of
the accused that as per the disclosure made by the accused in the present case, Ali
was having a source called Munir in Sri Nagar and one Rajni in Kuwait, but he
could not tell any address of Munir or if name of Munir was discussed during
briefing or not.
Quantity of Heroin was not disclosed during the briefing. He had heard the
name of Ali for the first time only in the said briefing and prior to that he had no
clue about him being involved in drug trafficking. He could not tell as to since when
Ali was involved in trafficking of drugs.
He had denied the suggestion of the defence that he had made
improvements in his statement regarding the networks of people and had
introduced a fictitious character by the name Ali. He could not tell about the
contacts of Ali in Delhi. He had also failed to state if said Ali was also made an
accused in this case or not.
PW4 had stated that he had no knowledge if trains used to leave for
Hyderabad from Hazrat Nizammudin Railway Station between 8 PM to 9PM. He
had not disclosed the name of any such train in his statement.
State v. Anamulagundam Somsekhar page 13 of 43
He had stated further that no description of physical appearance of the
accused was given/discussed during the briefing. Even they were not informed
about the place from where the suspect had arrived in Delhi with the contraband.
In the briefing, they were only told about the place from where he was supposed to
pass through. He had denied the suggestion that no such secret information qua the
accused was received by the police and discussed in the briefing.
The driver of Qualis had only noted down the meter reading in his presence
when he was directed by SI Sunil Jain to join him in the raid. They had travelled
through Pusta Road, Vikas Marg and then ring road to reach Sarai Kale Khan. They
had reached at the spot at around 7.45PM. IO had not noted down the names of
public persons who were requested by him at different places for joining the
investigation. He could not tell the reasons for their declining to join the
proceedings. He had denied the suggestion of the defence that no such efforts
were made to join the public persons in the investigation.
PW4 had stated that they had finally left the spot at 06 AM on 28.3.2014
with the accused. No public person was joined in the proceedings between 7.45 PM
(27.03.2014) and 6 AM on 28.03.2014. He himself had not asked anybody to join
the proceedings.
Apart from ISBT Kalen Khan and Hazrat Nizamuddin Railway Station, he
had no knowledge about the existence of any residential colonies near the spot. In
his presence, SI Sunil Jain had not visited Railway Station and ISBT to call for the
persons to join the proceedings.
Rukka was sent by SI Sunil Jain for registration of case at around 12:15 am
State v. Anamulagundam Somsekhar page 14 of 43
(midnight). SI Rajnikant had arrived at the spot at 03:45 am. SI Rajnikant had also
stayed at the spot till 06:00 am. SI Rajnikant had not asked any public persons to
join the proceedings, in his presence. He had denied the suggestion of the defence
that no proceedings were carried out at the spot from 07:45 pm on 27.03.2014 to
06:00 am on 28.03.2014 and/or that no such request was either made by any of
the police staff involved in the present case to the public persons for joining the
investigation and/or that the story about raid and recovery had been cooked up by
his Senior Officials and/or that at their directions, he had deposed falsely.
As per PW4, IO had got issued and obtained Field Testing Kit and weighing
machine in his name from Office Malkhana. IO Bag comprised of match box, white
cloth, candle, lakh, papers, paper board, pen, pencil, needle & thread, scale etc. The
IO bag was a bit larger in size than Laptop Bag and the Field Testing Kit comprised
of small bottles filled with chemicals. There were 10 to 12 bottles in the said kit. It
also comprised of one small plastic tray, funnel and one chart affixed on the board
related to the results of test.
No suggestion to the contrary had been given by the Ld. Defence Counsel to
this witness and in the absence of any such contrary suggestion, it can be safely
presumed that IO was carrying the IO bag and the field testing kit with him during
the proceedings qua the accused.
Accused was apprehended at 08:25 pm. Notice u/s 50 of NDPS Act was
prepared after 10 minutes of apprehension of accused. The notice was served upon
accused at around 08:45 pm. He had signed the notice immediately, when it was
prepared at 08:45 pm. After obtaining the reply to the notice u/s 50 of NDPS Act
State v. Anamulagundam Somsekhar page 15 of 43
from the accused, 57 persons were again requested to join the proceedings and
thereafter, the accused was thoroughly searched. It took them two minutes to
search the bag of accused. Accused was wearing the Pant and Shirt at the time of
his apprehension, but he could not tell their colours. All the proceedings were
conducted by them inside their official vehicle, except the search of accused and his
bag. Very small quantity was taken out for the purpose of testing the contraband
before weighing the recovered contents. Tested samples were not preserved. He
had denied suggestion of the defence that testing was not done in his presence.
PW4 had stated that total two tests were conducted, i.e. one each for the
samples taken from two bags. The test results shown purple colour, when the
sample were reacted with the aid of chemicals. Two chemicals were used in
conducting the tests. He had denied the suggestion of the defence that no such tests
were conducted.
He could not tell about the exact time, but had stated that the FSL Form was
filled before preparation of seizure memo and it had taken around 2025 minutes in
filling of FSL Form.
Seizure memo in duplicate was prepared at around 01:30/01:45 hours
before the preparation of rukka and about 2025 minutes had been consumed in
preparation of the same. Seal was handed over to him after filling of FSL Form, but
he could not tell the exact time of its handing over to him. No DD Entry was made
by him while returning the seal to SI Sunil Jain.
'Tehrir' (rukka) was prepared at around 12:10 am (midnight) i.e. 5 minutes
before its departure for registration of FIR.
State v. Anamulagundam Somsekhar page 16 of 43
They were sitting at the spot from 12:15 am till 03:45 am. Only his
statement was recorded at the spot from 04:00 am till 05:15 am. He could not tell
the exact time, as to when disclosure statement of accused was recorded, but
according to him, it was recorded after causing arrest and conducting personal
search of the accused.
Intimation of arrest of accused was given to his wife Hema Bindu by SI
Rajnikant at the phone number provided by the accused himself. The intimation of
arrest was not given from the spot, and it might have been given only after reaching
office.
He had denied the suggestion of the defence that he had given specific
timings and facts regarding the raid in his examination in chief, as tutored by his
seniors and/or that he had not participated in the proceedings.
No train ticket was recovered from the possession of accused. No other travel
document was recovered from his personal search. Disclosure statement of accused
was recorded by the IO as per his narrations.
Site plan was prepared in his presence. It took around 15 minutes in its
preparation at around 4 AM till 4.15 AM.
They came back to their office from spot via Ashram Chowk and reached the
PS Crime Branch at around 6.45 AM and he remained there for about 45 minutes.
Statement of two witnesses namely Insp. Virender and HC Jag Narayan, were
recorded there in the PS Crime Branch. In his presence, at PS Crime Branch no
proceeding was conducted by the SHO, only his statement was recorded by the IO.
He had not seen the SHO handing over his seal to any official.
State v. Anamulagundam Somsekhar page 17 of 43
He had reached at his office at Shakarpur at around 8.40 AM on 28.3.14 and
had taken the same route which was taken for reaching PS Crime Branch.
Accused was interrogated by Insp. Vivek Pathak in respect of his personal
particulars, as well as source of procurement of contraband and its final destiny and
this interrogation was made by him immediately after their reaching the office. No
writing was done by him in his presence regarding the aforesaid interrogation of
accused. Statement of Insp. Vivek Pathak was not recorded by the IO in his
presence. He had denied the suggestion of the defence that no interrogation or
inquiry was made from the accused by Insp. Vivek Pathak and/or that accused was
not taken to PS Crime Branch and/or that no proceedings were conducted at PS
Crime Branch, as claimed by him in his examination in chief and/or that all the
proceedings were done after falsely implicating the accused at Shakarpur office
and/or that false documents were prepared by his seniors. All other formal
suggestions were denied by him as incorrect. He had also denied the suggestion of
the defence that because of some personal enmity and quarrel between accused and
his friends, accused had been falsely implicated by SI Sunil Jain in this case.
9 PW5 HC Jaipal Singh had stated that in the intervening night of
27/28.03.2014, he was posted as HC at PS Crime Branch and his duty hours were
from 8:00PM to 08:00 AM. At about 01:00AM, Constable Khetaram had brought a
rukka for registration of FIR, which was sent by SI Sunil Jain, and on the basis
thereof, he had got the present FIR typed through Computer operator. He had
placed on record the typed copy of the same which was Ex.PW5/A. He had also
placed on record his endorsement on the said rukka to this effect which was
State v. Anamulagundam Somsekhar page 18 of 43
Ex.PW5/B. After registration of the FIR, copy of the same alongwith the original
rukka was given to the said Constable Khetaram with the directions that the same
be handed over to IO/SI Rajnikant for further investigation.
This witness was not crossexamined by the accused despite availing an
opportunity in this regard.
10 PW6 Ct. Shani Kumar had stated that on 01.04.2014, he was posted
as Constable in Narcotics Cell, Crime Branch and on the directions of SI Rajni Kant,
he had taken two sealed sample pullandas mark A1 & B1 duly sealed with the seal
of '3C PSNB DELHI' & 'VSS' and had deposited the same with FSL, Rohini alongwith
FSL Form, with sample seal thereon, vide RC No. 93/21, against the receipt and
thereafter he had come back to PS and had deposited the receipt of those exhibits
with the MHC(M). He kept the sealed pullandas in his safe custody and seals were
not tampered with in any manner.
In his crossexamination conducted by Sh. Javed Hussain, Ld. LAC for the
accused, he had stated that his statement was recorded by SI Rajni Kant. No other
witness was examined in his presence by the IO. There were no fixed hours of his
duty. He was residing in the barracks itself and had left the office at around 07:30
am to deposit the pullandas.
HC Jag Narayan had met him in the Malkhana, PS Crime Branch, Malviya
Nagar, who had also handed over him copy of the seizure memo alongwith the
pullandas at around 09:00 am and thereafter he had reached at FSL, Rohini. He
had returned to PS Crime Branch from FSL, Rohini at around 03:30 pm and had
deposited the acknowledgment receipt of the pullanda with MHC(M) at around
State v. Anamulagundam Somsekhar page 19 of 43
03:30 pm. HC Jag Narayan had obtained his signatures on the Road Certificate and
not on the store register kept in the Malkhana. All other formal suggestions of the
defence were denied by him as incorrect.
11 PW7 Ct. Kheta Ram had stated that on 27.03.2014, he was posted as
Constable at Narcotics Cell, Crime Branch, Shakarpur, New Delhi and on that day,
SI Sunil Jain had constituted a raiding party of Head Constable Yogesh, HC Rajesh,
HC Mahesh and him to conduct a raid for apprehension of a person in relation to
narcotics. SI Sunil Jain had a secret information regarding the accused. They had
left the office at around 07:15 pm in an official Qualis Car bearing No. DL1CH
9804 and had reached at ISBT Sarai Kalen Kahan turn towards H. N. Din Railway
Station. The raiding party members were briefed by SI Sunil Jain. The driver of the
car was instructed to park the officfial vehicle at a distance of around 50 meters on
the road towards H. N. Din Railway Station and to reach at the spot only after
getting the signal.
He alongwith SI Sunil Jain, secret informer, HC Rajesh had taken position on
the left side of the road, leading towards Railway Station, whereas other staff had
taken their positions on the opposite road at around 07:55 pm.
At around 08:25 pm, one person came from under the Sarai Kalen Khan
flyover heading towards railway station and he was carrying a bag of a black colour
on his shoulder. The said person was identified by the secret informer from a
distance of 1015 meters as Somsekhar, the person for whom the raiding party was
constituted. The secret informer had left the spot after identifying him.
He had stated that as soon, the said person came near them, he was
State v. Anamulagundam Somsekhar page 20 of 43
cordoned and apprehended. SI Sunil Jain gave his introduction and identity of
other police officials to the said person and the Qualis car was called.
Upon interrogation, the said person had disclosed his name as Somsekhar. SI
Sunil Jain, had then informed the accused about the secret information with him
and likelihood of recovery of Heroine from his possession. SI Sunil Jain had also
served a notice u/s 50 NDPS Act (Ex.PW4/A) upon the accused (correctly
identified) in English as the accused had shown his inability to understand Hindi
language. In reply to the said notice, the accused had declined to get himself
searched in the presence of Gazetted Officer or the Magistrate and his reply was
placed on record which was Ex.PW4/B.
IO had also requested few public persons to join the recovery and
investigation, but none of them had agreed and had left the place without
disclosing their names and addresses.
The bag of the accused was then searched, which found containing one used
white shirt, blue jeans and a towel and beneath these clothes, two transparent
polythenes were recovered, which were tied by the rubber band.
The polythene bags were containing light brown (matiyala) colour powder.
The powder of both the polythene bags was checked by the IO and Heroin was
discovered.
Both polythene bags were given Sl. No. A & B. Each polythene bag contained
4 Kgs, total of 8 Kgs of Heroine.
IO had taken out two samples of 5 gram each from each polythene bag and
had given them Serial Numbers as A1, A2 & B1, B2.
State v. Anamulagundam Somsekhar page 21 of 43
The recovered contraband alongwith clothes were sealed in a same bag with
the help of cloth pullanda with the seal of '3C PSNB DELHI' and sealed pullanda
was given mark 'C'. Similarly all the four samples were also sealed in the cloth
pullandas with the same seal. FSL Form was also filled and sample seal was put
thereon.
The recovered case property was seized vide seizure memo already exhibited
Ex.PW3.D1. Seal after its use was handed over to Head Constable Rajesh.
IO had prepared the 'tehrir' and had handed over it to him alongwith sealed
pullandas, carbon copy of seizure memos, FSL Form, with the directions to hand
over the case property and documents to the SHO and the 'tehrir' to the Duty
Officer for registration of FIR.
He had left the spot at around 12:15 am (midnight) alongwith aforesaid
articles and had reached at the PS at around 01:00 am (night) and had handed
over the case property and the documents to the SHO. 'Tehrir" was handed over by
him to the Duty Officer.
He had also stated that SHO had put his seal of 'VSS' on all the pullandas
and FSL Form. After obtaining the FIR Number from the Duty Officer, the FIR
Number was also put on the said pullandas and documents and thereafter, the
same were deposited with the MHC(M), by calling him in the SHO Room. SHO had
also made one DD Entry in that regard.
At around 02:30 am (night), Duty Officer had handed over him the
computer printout of the FIR and original tehrir and thereafter he had left the PS to
go to Narcotic Office and reached there at around 03:15 am. The documents were
State v. Anamulagundam Somsekhar page 22 of 43
handed over to SI/IO Rajni Kant, who had left the office in the same vehicle for the
spot, leaving behind him in the office itself.
Later on, IO had recorded his statement in the morning from 10.45 am till
12.00 Noon.
PW7 had also identified two polythene bags Ex. P1 and P2 and one black
colour Raxine bag with clothes of accused (used towel, blue colour jeans pant and
white colour shirt taken out) collectively as Ex.P3, remnant of Heroin kept in small
transparent polythene pouch MarkA1 tied with rubber band as Ex.P4, one sample
of Heroin kept in small transparent polythene pouch MarkA2 tied with rubber
band as Ex.P5, remnant of Heroin kept in small transparent polythene pouch Mark
B1 tied with rubber band as Ex.P6, one sample of Heroin kept in small transparent
polythene pouch MarkB2 tied with rubber band as Ex.P7, carbon copy of notice
u/s 50 of NDPS Act as Ex. P8, one Election ID Card of the accused and Rs. 4,000/
(in denomination of Rs.1,000/ each) as Ex.P9.
In his cross examination dated 02.09.2016, conducted by Sh. Javed Hussain,
Ld. LAC for the accused, he had stated on 27.03.2014, he had reported at his
office at around 09:00 - 09:15 am. SI Sunil had called him in his room in the office
at around 07:00 pm. Raiding party was constituted by SI Sunil at around 07:15 pm
and he alongwith HC Rajesh, HC Yogesh, HC Mahesh and secret informer were
joined. He alongwith raiding party had left the office of Narcotics Cell at around
07:15 pm and had reached at the spot 07:45 pm, via Pusta Road, IP Estate Metro
Station and they had taken a right turn under the Sarai Kalen Khan, ISBT Flyover
leading towards Nizamuddin Railway Station. Driver/ASI Raghuvir Singh was
State v. Anamulagundam Somsekhar page 23 of 43
driving the vehicle. Secret informer had accompanied them from their office.
He had admitted the suggestion of the defence as correct that there were
shops and residential area near the place, where they had parked their vehicle.
IO had requested few passersby to join the raiding party. Notice (Ex.PW4/A)
was prepared by placing the papers on the bonnet of vehicle and the reply of notice
(Ex.PW4/B) was prepared while sitting on the footpath. He had denied the
suggestion of the defence that notice and reply of the accused were prepared
while sitting in the office and not at the spot.
From the spot, he had gone to the Police Station Crime Branch to get the FIR
registered and after getting the FIR registered, he had gone to Office of Narcotics
Cell. HC Jaipal was Duty Office of PS Crime Branch.
He had stated that it had taken around 57 minutes in briefing at Narcotics
Cell to disclose about secret information. No other senior officials like ACP and
onwards, were present in the room at the time of briefing. Quantity of the
contraband i.e. Heroine was not disclosed to him in the briefing.
Neither he nor any other member of the team was carrying any weapon at
the time of the raid.
IO was carrying the cloth with him, which was used to prepare the pullanda.
The pullanda was sealed at the spot itself. SI Sunil Jain had filled the FSL From. HC
Yogesh had written the 'tehrir' on the directions of SI Sunil Jain.
He alone had taken the sealed pullanda, FSL Form, Seizure Memo and the
'tehrir' to the PS Crime Branch. IO had recorded his statement in the Narcotics Cell,
Shakarpur. IO had not recorded statement of any other person in his presence.
State v. Anamulagundam Somsekhar page 24 of 43
IO had requested public persons to join the investigation at the time of
apprehension of the accused, but none of them had agreed.
Accused was not arrested, in his presence. Notice was served upon the
accused after 08:30 pm. Search was conducted after getting the reply to the notice
by the accused. No public person was requested to become a witness at the time of
taking search of the accused.
He could not tell the type of clothes worn by the accused at the time of his
apprehension. IO had checked the recovered substance with the help of field testing
kit and Heroine was detected.
In his further crossexamination conducted on behalf of the accused, he had
stated that first of all, notice was prepared by the IO and last document prepared by
him was the 'tehrir', which was prepared by the IO, in his presence at the spot itself.
All formal suggestions of the defence, were denied by him as incorrect.
12 PW8 Insp. Vivek Pathak had stated that on 27.03.2014, he was
working and posted as Inspector in Narcotics Cell, Shakarpur, New Delhi. On that
day, at about 06:45 pm, SI Sunil Jain alongwith informer had come to his office
and he had informed him that one South - Indian namely Ali indulged in supply of
'Heroine' through his network from Afganistan to Srinagar - Delhi - Hyderabad and
further to Arabian Countries and his associate Somsekhar of Andhra Pradesh was in
Delhi in possession of Afgani Heroine in huge quantity and he would go to
Hyderabad by Train between 08:00 to 09:00 PM from Hazrat Nizamuddin Railway
Station and he would pass by Sarai Kalen Khan Mor, if raided he could be
apprehended with huge quantity of Heroine. He had made inquiries from the
State v. Anamulagundam Somsekhar page 25 of 43
informer and after satisfying himself, he had informed Sh. Zile Singh, ACP
Narcotics telephonically at his residence regarding the said secret information, who
had ordered to conduct a raid and to take legal action. SI Sunil Jain lodged DD No.
28 at 07:00 PM regarding the said secret information and produced the same
before him, copy thereof was already exhibited as Ex.PW2/A. He had forwarded the
same to ACP/N & CP. SI Sunil Jain had constituted a Raiding Party and had left for
the spot for further proceedings.
On 28.03.2014, SI Rajnikant had come to his office alongwith accused at
about 08:45 am. He had made inquries from the accused,(correctly identified by
the witness). His statement was recorded by the IO/SI Rajnikant between 09:15 am
to 09:45 am.
He had stated further that on the same day, SI Sunil Jain had also produced
a special report u/s 57 NDPS Act regarding seizure of 8 kg of Heroine, which he
had forwarded to ACP/N & CP, the report u/s 57 NDPS Act was already exhibited
as Ex.PW2/C. SI Rajnikant had also produced a special report u/s 57 NDPS Act
regarding arrest of the accused, which he had also forwarded to ACP/N & CP and
the said report u/s 57 NDPS Act was already exhibited as Ex.PW2/D.
In his crossexamination conducted by Sh. Javed Hussain, Ld. LAC for
the accused, he could not tell the telephone number on which he had made a call
to the ACP. Raiding party had departed for the spot at about 07:15 pm. Secret
informer had not told him about the name of the train by which accused had to
travel to Hyderabad. SI Rajnikant was present in his office when he was making
inquiries from the accused. He could not tell the kind of clothes and their colour
State v. Anamulagundam Somsekhar page 26 of 43
worn by the accused, when he was produced before him. SI Sunil Jain had lodged
DD No. 28. His statement was recorded u/s 161 Cr.PC by SI Rajnikant in his office
and no other witness was examined by the IO, in his presence.
All other formal suggestion of the defence were denied as incorrect by this
witness.
13 PW9 Insp. Sunil Jain, had stated that on 27.03.2014, he was posted
at Narcotics Cell, Shakarpur as Sub Inspector and on that day he was present in his
office; at about 06:30 pm the secret informer came in his office and informed him
that one person namely Ali who was a South Indian and was involved in the supply
of Afghanistani Heroine in the Arab countries after procuring the same through his
network from Srinagar via Delhi to Hyderabad and on that day also, one Soma
Shekhar, a resident of Andhra Pradesh and accomplice of Ali had reached Delhi
with Afghanistani heroine and said Some Shekhar would catch the train for going
to Hyderabad from Hazarat Nizamuddin Railway Station and he would pass
through Sarai Kalen Khan Mod between 08 pm to 09 pm and if raided on time near
Sarai Kalen Khan Mod, then he would be apprehended alongwith the heroine. He
had then made inquires from secret informer and after satisfying himself, he had
produced the said secret informer before Insp. Vivek Pathak, Incharge Narcotics
Cell in his office at about 06:45 pm and apprised him with the secret information.
Insp. Vivek Pathak had also made inquiries from the said secret informer and after
satisfying himself, Insp. Vivek Pathak had further informed ACP, Narcotics Cell
namely Zile Singh regarding the said information at his residence telephonically.
ACP had directed Insp. Vivek to conduct a raid without any further delay and the
State v. Anamulagundam Somsekhar page 27 of 43
same direction was conveyed to him by Insp. Vivek Pathak.
Thereafter, he had recorded the secret information in Rojnamacha vide DD
No. 28 at 07:00 pm, already Ex. PW2/A and had produced the same before Insp.
Vivek Pathak in compliance of provision u/s 42 (2) NDPS Act. Thereafter, he had
constituted a raiding party consisting of himself, HC Rajesh, HC Mahesh, HC
Yogesh and Ct. Khetaram. He had briefed the raiding party members regarding the
secret information. He had also taken field testing kit, IO bag and electronic
weighing machine with him and had left for the spot alongwith raiding team
members and the secret informer in a government vehicle bearing no. DL1C H 9804
driven by ASI Raghubir Singh, after recording DD No. 29 at about 07:15 pm, copy
thereof was placed on record as Ex. PW9/A and it was also attested by ACP Zile
Singh at point A.
He had also stated that they had reached at the spot i.e near Sarai Kalen
Khan Mod at about 07:45 pm via Pushta Road, Vikas Marg, Ring Road and had
finally turned to right from Sarai Kalen Khan flyover. On the way, he had also
requested four public persons at Ramesh Park Bus Stop, Pushta Road, five passersby
near I. P. Estate Metro Station, and six public persons after reaching the spot to join
them in the raiding party after disclosing the secret information, but none of them
had agreed and had left without disclosing their names and addresses citing
different reasons. He had neither recorded their names nor had served them with
any notice in writing due to paucity of time.
After reaching at the spot, they had taken their respective positions and had
started waiting for the accused. At about 08:25 pm, the secret informer had pointed
State v. Anamulagundam Somsekhar page 28 of 43
out towards one person coming from the side of Sarai Kalen Khan flyover who was
going towards Hazarat Nizamuddin Railway Station, carrying a black coloured
rexin bag on his left shoulder. After pointing out towards the accused, the secret
informer had left the spot.
Without wasting further time, all of them (raiding party members) had
surrounded the accused Anumulaya, (correctly identified by the witness). Upon
inquiry, his full name was disclosed to them as Anumulaya Gundan Soma Shekhar.
They had apprised him with the secret information and he had also disclosed him
his identity. While serving him wtith the Notice u/s 50 NDPS Act, already Ex.
PW4/A, he had also told accused regarding his right to be searched before Gazetted
Officer or a Magistrate. However, he had declined to exercise either of the options
by refusing in writing on the original notice which was already Ex. PW4/B.
Thereafter, he had again requested ten public persons to join the proceedings
but none of them had agreed to join and they had left the spot without disclosing
their names and addresses after citing different reasons. Thereafter, personal search
of accused was conducted but no incriminating article was found in his personal
search.
From the bag carried by the accused, they had recovered two polythene bags
containing brownish / soil coloured powder. The said powder was checked with the
help of testing kit and both the polythene bags were found containing heroine.
The polythenes were given mark A & B. The weight of recovered polythenes
with substance was measured with the help of electronic weighing machine and
each bag was found containing 4 Kgs of substance.
State v. Anamulagundam Somsekhar page 29 of 43
Two samples each of 05 gms were taken out from both the bags respectively
and were converted into separate pulandas which were given marks A1 and A2 to
the substance taken out from polythene A, and B1 and B2 to samples taken out
from Polythene B.
The remaining substance in polythene bags Mark A and Mark B was put back
in the bag alongwith some cloths which were already lying in the bag. The said bag
was put in a white cloth pulanda and was given mark C.
Thereafter, he had filled up FSL Form and had affixed his official seal "3C PS
NB DELHI" on the form as well as on all the pulandas including the sample
pulandas. The same were also taken into possession vide seizure memo already Ex.
PW3/D1. Thereafter, he had prepared Rukka which was placed on record as Ex.
PW9/B and it was handed over to Ct. Kheta Ram alongwith all the seized
pulandas, FSL form and carbon copy of seizure memo for their deposition with
SHO, Crime Branch and Ct. Kheta Ram had then left the spot in the said
government vehicle alongwith driver. However, he himself alongwith remaining
staff and accused had remained present at the spot itself.
After registration of FIR, further investigation of this case was assigned to SI
Rajni Kant, who had come to the spot in the same government vehicle and had
met him and then PW9 had handed over him the custody of accused alongwith
original seizure memo and other documents including Notice u/s 50 NDPS Act.
SI Rajni Kant had inspected the spot and had prepared site plan at his
instance which was placed on record as Ex. PW9/C. Accused was thereafter
arrested by SI Rajni Kant vide arrest memo already Ex. PW4/C and his personal
State v. Anamulagundam Somsekhar page 30 of 43
search Ex. PW4/D was also prepared. Accused had also made his disclosure
statement which was already placed on record as Ex. PW4/E.
He had identified the case property.
In his crossexamination conducted by Sh. Javed Hussain, Ld. LAC for
accused, PW9 had stated that HC Rajesh, HC Mahesh, HC Yogesh and Ct. Kheta
Ram were already present in the office of Narcotics Cell at the time of constituting
raiding party. Raiding party was constituted by him at about 07:12 pm. They had
left the office for spot at about 07:15 pm. The spot was surrounded by residential
complex and shops. He had not called any person from those residential complexes
and shops to join the proceedings. The Notice Ex. PW4/A was prepared at the spot
while standing near government vehicle. The reply of accused was recorded while
sitting in government vehicle. He had denied the suggestion of the defence that
notice as well as its reply were prepared by him in the office and not at the spot.
Ct. Kheta Ram had left the spot for PS Crime Branch at about 12:15 am on
28.03.2014 and he had not returned to spot thereafter. Secret informer had not
disclosed the name of the train which accused was supposed to board for
Hyderabad. None of the raiding team members was carrying any weapon. SI Rajni
Kant had reached at the spot at 03:45 am in same government vehicle (Qualis).
Accused was wearing black colour pant and white colour shirt at the time of his
apprehension.
First of all, he had prepared the notice u/s 50 NDPS Act at the spot and
lastly, the Rukka was prepared. No journey ticket of any train was recovered from
the possession of accused. Due to paucity of time, he could not verify as to which
State v. Anamulagundam Somsekhar page 31 of 43
of the train was leaving Delhi for Hyderabad around the time of apprehension of
accused. ACP Zile Singh, was stated to be residing somewhere in R. K. Puram area
but he could not tell his exact address. He could not tell his landline telephone
number as well. Insp. Pathak had informed him through the official no. 2248 again
said 22448831. Raiding party was constituted on the oral directions of Insp. Vivek
Pathak. He had not obtained any acknowledgment from Insp. Vivek Pathak in
respect of forwarding of information to him u/s 42 NDPS Act. Apart from DD entry,
no other writing was executed in respect of constitution of raiding party. ASI
Raghubir Singh, the driver of government vehicle was already available on duty.
There were four major traffic signals on their way to reach spot from the
office. He had denied the suggestion of the defence that only one traffic signal was
there from their office to reach the spot.
Only male persons were asked to join the proceedings. Secret informer had
walked towards Pragati Maidan side after pointing out towards the accused. He had
pointed out towards accused at a distance of 10 to 15 metres between him and
accused. He had explained the meanings of Gazetted Officer and Magistrate to the
accused. Any of the Gazetted Officer could have been called for the purpose of
search.
As per his knowledge, Gazetted Officers were those officers whose names
appeared in the official gazette and it further related to the promotions and the
Judicial Magistrates and Special Executive Magistrates were falling under the
category of Magistrates.
Accused was communicated about the information and causing of his search
State v. Anamulagundam Somsekhar page 32 of 43
in English language.
Small quantity of contraband was kept in a plastic tray which was already
provided in the field testing kit. Thereafter, one drop of bottle A1 and three drops
from bottle A2 were poured on the powder and as per changed colour, He had
arrived at the conclusion of contraband being heroine. He could not tell the name
of the chemicals which he had used while conducting the test. Government vehicle
was stated to be used by the department for conducting raids by the police officials,
irrespective of their ranks. The distance between the spot and their office was
stated to be about 7/8 Kms. He could not tell the brand name of the electronic
weighing machine. The machine was got issued by him from Malkhana just before
conducting the raid. He could not tell if calibration certificate in respect of electrical
and electronic gadgets of narcotics branch was obtained by him or not. No handing
over memo was prepared at the time of handing over of articles to Ct. Kheta Ram.
Seal after its use was handed over to HC Rajesh and it was received back by him
after 05 or 06 days, but no handing over / taking over memos were prepared and
placed on record in respect of seal. All other formal suggestions of the defence
were denied by him as incorrect.
14 PW 10 Insp. Virender Singh had stated that on 28.03.2014 while he
was posted as SHO PS Crime Branch (South East) New Delhi, Ct. Kheta Ram had
come to his office at about 1:05 AM and had handed over him five sealed parcels
marked as Mark A1, A2, B1, B2 and C alongwith one filled FSL Form and carbon
copy of seizure memo. All the five parcels and FSL Form were sealed with seal of
3C PS NB DELHI. After checking up the same, he had put his counter seal of VSS on
State v. Anamulagundam Somsekhar page 33 of 43
all those sealed exhibits. He had also obtained FIR No. 34/2014 details from the
duty officer HC Jai Pal and had also mentioned the same on all the sealed parcels
and documents. Thereafter, he had called HC Jag Narayan MHC(M) to his office
alongwith register No. 19. He had handed over all the sealed parcels and document
to him. He had also made entry in register No. 19 in that regard and he had signed
the relevant entry at pointB, which was placed on record as Ex.PW3/A. Thereafter,
he had made DD entry No. 3 at 1:45 AM in that regard, true copy of which was
placed on record as MarkX1. IO/SI Rajni Kant had recorded his statement in the
morning between 7:00 AM7:15 AM.
In his cross examination conducted by Sh. Balbeer Singh, Ld. Proxy
Counsel for counsel Sh. Javed Hussain, LAC for accused, he had stated that there
was only one seal impression of 3C PS NB DELHI and he had also affixed only one
seal impression on each sealed pullandas. He had no information at what time the
official, who had effected recovery of contraband from the accused, had left the
office for conducting raid. He (PW10) had not visited the spot. All formal
suggestions of the defence were denied by him as incorrect.
15 PW11 Insp. Rajni Kant had stated that on 28.03.2014, he was
posted as SI at Narcotics Cell, Shakkarpur, Delhi and on that day at about 3:00 AM,
Ct. Kheta Ram had handed over him a copy of FIR and original rukka for
investigation in this case. Vide DD No. 3, he alongwith ASI Raghubir had gone to
the spot at around 3:15 AM in the official Qualis Car bearing No. DL1CH9804 and
had reached at 3:45 AM at the spot near Nizamuddin Railway Station, Ring Road.
At the spot, SI Sunil, HC Rajesh, HC Mahesh and HC Yogesh had met him. SI Sunil
State v. Anamulagundam Somsekhar page 34 of 43
had handed over him the accused and the relevant papers. He had prepared the
site plan at the instance of SI Sunil which was already placed on record as
Ex.PW9/C. He had also recorded the statement of HC Rajesh and had interrogated
the accused. Accused was arrested by him in this case at around 5:30 AM and his
personal search was also conducted vide memos already exhibited as Ex.PW4/C
and Ex.PW4/D respectively. He had also recorded disclosure statement of the
accused which was already placed on record as Ex.PW4/E. Thereafter, all of them
alongwith accused had come back to Office of Crime Branch, Malviya Nagar and
had reached there at around 6:45 AM. The personal search articles of the accused
were deposited by him in the Malkhana. He had also recorded the statements of
SHO/Insp. Virender Singh and the MHC(M) Jag Narain. Thereafter, they had come
back to their office at around 8:45 AM. Accused was produced before Insp.
Narcotics Cell Vivek Pathak (accused was correctly identified by witness). He had
made his arrival entry and had also recorded the statement of the witnesses and
had prepared his report u/s 57 of NDPS Act which was placed on record as
Ex.PW11/A and it was handed over to Insp. Vivek Pathak.
Accused was produced before the concerned Court and his 4 days PC
remand was taken and during PC remand, accused was interrogated and his
supplementary disclosure statement was also recorded by him which was placed on
record as Ex.PW11/B. Accused was then produced before the Court and he was sent
to JC.
On 01.04.2014, the sealed sample pullandas of this case were sent to
FSL, Rohini through Ct. Shani and he had also recorded statements of said Ct.
State v. Anamulagundam Somsekhar page 35 of 43
Shani and MHC(M) Jag Narain as well in that regard. After obtaining FSL result, he
had prepared the charge sheet against the accused and filed the same in the Court
as per rules.
In his crossexamination conducted by Sh. Javed Hussain, Ld. LAC for
accused, it was stated that he had recorded the statement of Insp. Vivek Pathak at
the office of Narcotics Cell, Shakkarpur. Ct. Shani had gone to FSL, Rohini to
deposit the sealed pullandas in the morning time. However, he could not tell the
exact time. Rs. 4000/ in cash, one election Icard and carbon copy of notice u/s 50
NDPS Act were recovered from the personal search of accused. He could not tell as
to who was present in the office on 28.03.2014 at around 3:15 AM, but, DO was
present. All the police officials present at the spot of recovery, were in plain clothes.
He had placed on record his arrival entry, copy of which was Ex.PW11/D1. No
residential premises were present near the spot. First of all, he had prepared the
site plan after reaching at the spot and in the last he had recorded the disclosure
statement of accused. The relatives of accused were informed by him about his
arrest after causing the same and not during the arrest proceedings and the
information in that regard was given to his relatives after reaching Narcotics Cells
office and not from the spot. He could not tell if offices were situated near the spot
or not. Nizamuddin Railway was situated at a distance of about 800900 meters
from the spot. No police official was called from Nizamuddin Railway Station while
causing arrest of accused. Even no public person was asked to join the
investigation. Accused was wearing black pant and white shirt, when he was
arrested. No railway ticket was recovered from his possession. All other formal
State v. Anamulagundam Somsekhar page 36 of 43
suggestions of the defence were denied by him as incorrect.
16 After closure of the prosecution evidence, accused was examined
under section 313 CrPC, wherein he had denied all the incriminating evidence and
circumstances put to him in toto and had claimed himself to be innocent, falsely
implicated in this case. However, the accused had not led any evidence in his
defence, despite an availing opportunity in this regard.
17 I have heard Sh. Pravin Rahul, Ld. Addl. PP for the State as well as Sh.
Javed Hussain, Ld. Legal Aid Counsel for the accused and have considered their
rival submissions.
18 It has been submitted by Sh. Pravin Rahul, Ld. Addl. PP for the State
that the prosecution had successfully established its case beyond any reasonable
doubt against the accused and thus accused was liable to be convicted for the
offence under section 21 NDPS Act and should be provided adequate sentence for
the same.
19 However, Sh Javed Hussain, Ld. LAC appearing for the accused has
submitted that it is a false case registered against the accused and the falsity of the
case has been proved by the fact that even no public witness was joined during the
entire proceedings. In this regard, Ld. Defence Counsel has also placed reliance on
the citation titled as "Om Prakash v. State, dated 23.5.2015 passed in Crl. Appeal
No. 453/14 by Hon'ble Justice Dr. S. Muralidhar, J. of our own Hon'ble High Court.
Reliance has also been placed on Crl. Appeal No. 1363/14 in case titled "Ram
Prakash v. State", decided on 10.12.2014 by Hon'ble Justice Dr. S Murlidhar, J.
20 It has also been argued on behalf of the accused there was a delay of State v. Anamulagundam Somsekhar page 37 of 43 five days in sending the sample to FSL which had remained unexplained, therefore, accused was entitled to acquittal and reliance in this regard has been placed on the citation of Hon'ble Punjab & Haryana High Court in case titled "Khazan Singh v. State of Haryana", reported in 2008 Vol. (2), Punjab Law Reporter 615 and also on "Des Raj @ Dass v. State" 83(2000) DLT 262 and in the light of aforesaid citations, it has been submitted by Ld. Defence Counsel that since contraband as well as the seal had remained in possession and custody of the police officials of the same police station and there was a delay of five days in sending the sample to the FSL, therefore, the possibility of tampering with the same cannot be ruled out and therefore, the accused deserved to be acquitted in this case, as the prosecution had failed to prove the guilt of the accused beyond shadow of reasonable doubt. 21 To counter the same, it has been submitted by Ld. Addl. PP for the State that it is not mandatory for the police to find out and join independent public witnesses in each and every case and the fact remains that people are reluctant and hesitant in joining the police investigation and therefore merely because all witnesses happened to be police officials, the same could not prove fatal to the prosecution case especially when their version had remained consistent throughout the trial.
22 However, I do not find myself in agreement with this argument of Ld. Addl. PP particularly in the context of the present case where the alleged raid was not conducted at the wee hours in the night but at about 8.24 pm on the busy road near turn of Nizamuddin Railway Station, Sarai Kale Khan and that too at a place where there were permanent government and private offices and shops and it was State v. Anamulagundam Somsekhar page 38 of 43 not merely a road and no legal action was taken by the IO against those public persons, who had allegedly refused him to assist the police and he had merely kept standing as a helpless person, watching the public persons coming and going away through the spot.
23 So far as the delay aspect is concerned, Ld. Addl. PP for the State had submitted that a gap of 5 days is a reasonable gap and no adverse presumption can be drawn against the prosecution for this act as it included the period of custody remand of the accused as well.
24 Ld. LAC appearing for the accused has further argued that there are contradictions appearing in the version of prosecution witnesses which themselves are sufficient enough to destroy the prosecution story qua the accused because as per the version of PW9, notice Ex. PW4/A was prepared by him at the spot while standing near the government vehicle and reply of accused was recorded while sitting in the government vehicle. However in contrast thereto, it was deposed by PW7 Ct. Kheta Ram in his cross examination that the said notice was prepared by the IO by placing the paper on bonnet of the government vehicle and reply of the same was recorded while sitting on the footpath.
25 Similarly, although all the witnesses had admitted that spot was surrounded by residential houses and other buildings, but it was stated by PW11 Inps. Rajni Kant during his crossexamination that no residential premises were present near the spot which fact shows that be was telling a blatant lie. 26 However, I do not find any merits in this contention and argument of Ld. LAC particularly when all the witnesses had maintained consistency in their State v. Anamulagundam Somsekhar page 39 of 43 versions during their examinationinchief. Hence, the minor contradictions, if any, appearing in their versions during such crossexamination does not fall in the category of any major or fatal contradiction capable enough to destroy the prosecution case. Rather versions of PW7 and PW9, even if taken in totality on their face value itself, do indicate one common fact that proceedings involving preparation of notice and obtaining its reply were conducted by the IO at the spot itself and not at his office or police station, as is the case tried to be set up by the defence.
27 So far as nonjoinder of public witnesses as argued and emphasized by Ld. LAC is concerned, I have no hesitation in holding that time at which raid was conducted, no government office could be expected to be open and operational. Even no resident of the locality would like to entertain any police officials at his home/shop at such hours, as visiting of police officials to anybody's home is still considered stigmatic in our society.
28 So far as the passersby are concerned, one cannot lose sight of the fact that all the passersby nearby the spot were either coming to ISBT Kale Khan or to Hazrat Nizamuddin Railway Station either to board buses or trains for their respective destinations. It is a matter of common understanding that a passenger is always in hurry to board the mode of his conveyance for his destination and has hardly any time to spare to join such proceedings with police. Therefore, merely because no public persons were joined in this case and all the witnesses were police officials, prosecution story cannot be brushed aside on this sole ground alone especially when all the official witnesses have maintained consistency through out State v. Anamulagundam Somsekhar page 40 of 43 during their examination.
29 Further more, as per section 54 of the NDPS Act, there is a presumption running against the accused about commission of offence under this Act, from whose possession contraband was recovered and onus was upon him to have proved the contrary, but the accused had failed to do so. 30 Even in his examination under section 313 CrPC, the accused had replied to question no. 5 that he was made to write on a paper in his own hand writing as per dictates of police officials which shows that reply to the notice under section 50 of NDPS Act as served upon him was written by him in his own handwriting, which further corroborates the prosecution version that notice under section 50 of NDPS Act was duly served upon him.
31 Not only this, but also the accused had stated in his further examination under section 313 CrPC in reply to question no. 9 that on the fateful day, he was sitting in Rajdhani Express Train and was brought by police to PS after taking him down from the said train and was falsely implicated in this case by planting the case property upon him. Had it been correct, then, some railway ticket was bound to have been recovered from his possession during his personal search, which though was never so recovered.
32 Further more, it is the admitted case of the accused that he is not the resident of Delhi nor he was carrying on any business or working for gain in Delhi. The fact that apart from his wearing clothes, only one shirt, one jeans and one towel were carried by him in his bag in which contraband was also kept goes to suggest that he had come to Delhi for a specific purpose and for a very short visit State v. Anamulagundam Somsekhar page 41 of 43 which did not require him to carry more clothes. This fact coupled with the fact that contraband was recovered from the possession of the accused, goes to further suggest that accused was nothing but a drug paddler and trafficker and he had come to Delhi just to take the consignment and to return to his final destination at the earliest available opportunity.
33 Although, as a matter of general rule and by virtue of section 25 of Evidence Act, any disclosure made by the accused during his police custody is inadmissible in evidence. However, section 66 of the NPDS Act carves out an exception to said general rule which provides that Court shall presume the signatures and every other part of such document purported to be in the handwriting of any person or which the court may presume to have been signed by or in the handwriting of any particular person is tendered in evidence. Since the NDPS Act is a special law, hence, it has to prevail upon general procedural law and its provisions as that of evidence act.
34 Not only this, but also, it shall be further pertinent to mention here itself that during crossexamination of PW4 HC Rajesh Kumar conducted on 1.6.2015 by the then Ld. Defence Counsel Sh. Michael Peter, as is evident from page 11, Ld. Defence Counsel had specifically put certain questions pertaining to the contents of disclosure statement of the accused to the witness and although the reply to those questions by the witness were not allowed by the Court as it is the settled preposition of law that contents of documents can neither be proved nor disproved by oral evidence. However, by putting such questions to the witness (PW4), the accused is presumed to have conceded to the genuineness, correctness State v. Anamulagundam Somsekhar page 42 of 43 and authenticity of his own disclosure statement made in his own handwriting which can very well be read against him.
35 So far as the contentions of Ld. LAC regarding percentage of contraband determined in the samples A1 and B1 as appearing in the testimony of PW1 are concerned, I have no hesitation in holding that this argument has now become a chapter in history in view of the notification brought in the year 2009 dated 18.11.2009 vide SO No. 2941(E) which notification was further upheld by our own Hon'ble High Court in "Abdul Matin v. UOI & Ors", WP (Crl) 1552/2010, decided on 6.11.2012.
36 In view of my aforesaid lengthy discussion and appreciation of testimony of witnesses, I have no hesitation in holding that the prosecution has successfully discharged its burden and onus to prove its case against the accused beyond the shadow of any reasonable doubt and thus the accused is hereby held guilty and convicted for an offence under section 21(c) of NDPS Act for possessing heroin in commercial quantity.
37 Let he be now heard on quantum of sentence on 31.8.2017.
Announced in the
open court on (LOKESH KUMAR SHARMA)
30 August, 2018 Additional Sessions Judge04 & Spl. Judge (NDPS)
th
SouthEast, New Delhi
State v. Anamulagundam Somsekhar page 43 of 43