Delhi District Court
State vs . Zaheer Khan on 10 March, 2023
1
IN THE COURT OF SH. PAWAN KUMAR MATTO
SPECIAL JUDGE (NDPS), ADDITIONAL SESSIONS
JUDGE, NORTH EAST DISTRICT, KARKARDOOMA
COURTS, DELHI
CNR No. DLNE-01-001751-2018
SC No: 142/2018
State Vs. Zaheer Khan
S/o Late Sh. Ismail
R/o 68, Vishwakarma Park,
Laxmi Nagar, Delhi-110092
FIR No. : 16/2018
Police Station : Seelampur
U/sec. : 20(b)(ii)(C)
of NDPS Act.
Case received in the court on: 27.04.2018
Date of reserving judgment : 25.02.2023
Date of judgment : 10.03.2023
JUDGMENT:
1. The brief facts of the case are that on dated 23.01.2018 at 1:00 PM, when SI Dinesh Kumar was present in the police station, one secret informer had come and informed that at about 2:00/2:15 PM, one man would bring charas in huge quantity at Brahmpuri Pullia, if, raid is conducted, he may be apprehended and this sub inspector, on being satisfied from the information received from the secret informer, he had produced the secret informer before the SHO and SHO had made talk with him and he had also informed to the senior police officials about such information. It is further stated that SHO had called SI Ravinder, SI Shahid Ali, ASI Jaivir and Ct. Amit in his office, briefed them 2 and constituted a raiding party thereof and directed to take appropriate action. Accordingly, this SI Dinesh Kumar had lodged DD No.11-A, regarding information received from the secret informer and for compliance of provision of section 42 of NDPS Act, the copy of DD No. 11-A was produced before the SHO of PS Seelampur. It is also stated that all the police personnels were in uniform and after taking IO kit, at about 1:45 PM, vide DD No. 12-A, departured for Brahmpuri Pullia, New Seelampur, Delhi and on arriving at there, SI Dinesh Kumar had conducted search of his staff and nothing incriminating was recovered from them and this SI Dinesh Kumar had apprised to 5-6 passersby about the information and asked them to join the raiding party, but, all the passersby had shown their difficulties and went away from there. It is also stated that in view of paucity of time, no written notice could be served to such passersby and taking into consideration the importance of the information received from the secret informer, without wasting any time, all the members of the raiding party took their positions and at about 2:15 PM, the secret informer had indicated about one person coming from the side of Ghonda Chowk towards Brahmpuri Pullia, who was carrying a heavy bag (ladies) of brown-white colour, who was apprehended at the corner of the Axis bank ATM and soon thereafter, the secret informer left the said place and SI Dinesh Kumar enquired about the name and address of the accused, who had disclosed his name as Zaheer Khan S/o Ismail, aged about 40 years, R/o H. N0. F-68, Vishwkarma Park, 3 Shakarpur, Laxmi Nagar, Delhi. It is further stated in the charge- sheet that this SI Dinesh Kumar had asked 5-6 passersby to join the raiding party, after apprising about the secret information, but, all of them had shown their difficulties and left the place and in view of paucity of time, he could not serve any written notice to such passersby for non-joining the raiding team.
2. It is also stated that SI Dinesh Kumar had informed to accused Zaheer Khan that he has information that this accused Zaheer Khan was having Charas with him and he wanted to search this accused and the accused was also apprised that he has right to get himself searched in the presence of the Gazetted Officer or the Magistrate, who could be called and he had also told to the accused that this accused could search the said SI Dinesh Kumar and also the members of his raiding team, prior to his search. It is also stated that this SI Dinesh Kumar had served a notice u/s. 50 of NDPS Act to this accused and the contents of the said notice were also read over to him and he was made to understand the same, who told that he is educated and he had received the notice from him and he had come to understand about his right, but, he did not want to call any Gazetted Officer or Magistrate to create evidence against him and this accused had confirmed that the information received by SI Dinesh Kumar was correct and this accused did not want to search SI Dinesh Kumar or any member of his raiding team and this accused had signed in English on the notice u/s. 50 of NDPS Act and said notice was signed by ASI Jaivir and Ct. Amit, being witnesses. It is further 4 stated that this SI Dinesh Kumar had checked the brown-white colour bag, which was in the right hand of this accused and found that 13 packets in the yellow colour plastic in one packet of transparent polythene, 16 golas of charas and in three packets containing 180 strips and nine packets containing square type of charas and on smelling the same, same was appearing as charas and on arranging the electric weighing machine from a shop, the weight of the 16 golas of charas was revealed as 300 grams, the weight of the 180 strips of charas (excluding weight of polythene) was revealed as 1.790 kilograms and the weight of 9 square typed charas (including weight of polythene) was revealed as 2.190 kilogram and thus, the total weight of charas was revealed as 4.280 kilograms and samples of three golas of 60 grams, 11 strips of 100 grams and one square typed charas of 250 grams were separated and separate parcels thereof were prepared which were given number S-1, S-2 and S-3 and separate parcels of the contraband were prepared as A-1, A-2 and A-3, which were sealed with the seal of DK, form of FSL was also filled and seal thereon was also affixed and the parcels were also sealed with the seal of DK, which was given serial no. P-1 and the said ladies bag of brown-white colour was also seized. It is also stated that the seal after use was handed over to ASI Jaivir and all the contraband and samples were also seized and since, this accused has committed offence punishable u/s. 20 of NDPS Act, so, tehrir was prepared, sealed parcels of the contraband, samples, form of FSL, carbon copy of the seizure memo and tehrir were sent for 5 producing before the SHO and tehrir was sent for giving the same to the Duty Officer through Ct. Amit for registration of the FIR and also for sending another investigating officer. Accordingly, the SHO had assigned the further investigation to ASI Vijay Kumar and said ASI had prepared the site plan at the instance of SI Dinesh Kumar and arrested to the accused and conducted personal search of this accused and seized the articles taken during the personal search and same articles were deposited in the malkhana. It is further stated that during the investigation, the disclosure statement of the accused was also recorded and he had disclosed that he had purchased the said charas from Shabir of Shamli (UP). It is also stated that SHO of police station Seelampur had also deposited the parcels of the contraband and samples with the malkhana, after putting his signatures and seal thereon and this accused was produced in the court on 24.01.2018 and police custody remand of this accused was obtained. The search of accused Shabir was also made, but, it was revealed that said Shabir had already sold his house. Thus, no clue of Shabir could be found, accordingly, on completion of the investigation, charge-sheet against this accused was filed u/s. 20 of the NDPS Act. The copy of the charge-sheet was supplied to the accused and on finding of prima facie case, vide order dated 23.05.2018, the learned Predecessor of this court was pleased to frame charge u/s. 20(b)(ii)(C) of the NDPS Act to which the accused pleaded not guilty and claimed trial and the accused was put on the trial. This accused was granted bail by 6 their Lordship of the High Court of Delhi, vide it's order dated 27.07.2018
3. In order to prove its case, the prosecution has examined 12 witnesses. Thereafter, statement of accused u/s. 313 of CrPC was recorded, wherein, he has denied the correctness of the evidence led against him. Accused did not examine any witness in his defence.
4. I have heard the counsels for the parties.
5. Sh. Sukhbeer Singh, learned Additional Public Prosecutor for State has submitted that in the case in hand a secret information was received by SI Dinesh regarding coming of the accused with the Charas and DD no. 11A Ex. PW9/A was recorded regarding the same and SI Dinesh had apprised to the SHO regarding the said secret information and he had constituted a raiding party and they had arrived at the spot, where, the accused was found in possession of 4 Kilo & 280 grams Charas and further submitted that prior to his search, notice was served to the accused under section 50 of NDPS Act, which is proved on the record that Ex.PW9/B and the accused had refused to be searched in the presence of the Magistrate or any Gazetted Officer and told that he was not desirous to create any evidence against him and disclosed that he was having Charas. He has further submitted that parcels of contrabands , their samples were prepared and samples thereof were sent to FSL and report of FSL Ex.PW3/A reveals that it was Charas and submitted that charge under section 20(b)(ii)(C) NDPS Act has been framed against 7 this accused as the weight of the contraband was 4 kilo and 280 grams, which is commercial quantity and submitted that SI Dinesh had prepared the rukka and sent to the Police Station alongwith the parcels through PW-2 Ct. Amit and further submitted that FIR was registered by the PW-1 ASI Satish Chand and PW-2 Ct. Amit, who is the witness of recovery, who has also identified the case property in the evidence, report of FSL Ex.PW-3/A is proved by PW-3. PW-4 is also a member of raiding party and PW-5 has proved the DD No. 11/A, reports U/sec. 57 of the NDPS Act were sent to the office of ACP and submitted that ASI Vijay Kumar is the second Investigating Officer. PW-6 SI Shahid Ali and PW-7 SI Ravinder are also witness of the recovery and submitted that ASI Vijay Kumar has been examined as PW-8, who is the second Investigating Officer and he had arrested the accused and further submitted that SI Dinesh Kumar has been examined as PW-9 and ACP Sh. Satish Kumar, the then SHO has been examined as PW-10, who has proved the case property and FSL form were handed over to him, who had deposited the same in Malkhana of concerned Police Station. He has further submitted that HC Rambir was the MHC(M) at that time, who has proved that he had received the parcels of the case property along with the samples, FSL form, articles taken in personal search and notice U/sec. 50 of the NDPS Act. He has also proved the register No. 19, containing the entries therein, regarding receiving of exhibits. ASI Lal Dev Oraon has been examined as PW-12 and he had taken the samples to the FSL, 8 vide Road Certificate and he has proved the receipt Ex.PW12/A and further submitted that since the provisions of section 42/50 and 57 have been complied with and testimonies of prosecution's witnesses remained consistent and prayed to convict this accused, under section 20(b)(ii)(C) NDPS Act.
6. Sh. S. N. Qureshi, the learned counsel for the accused Zaheer Khan has submitted that prosecution has alleged that 4 kilo and 280 grams of Charas was recovered from the accused and he has submitted that the case of the prosecution is full of suspicion and accused has been falsely implicated in the present case and contraband is planted upon him.
7. He has further submitted that prosecution has examined Ct. Amit as PW-2, who has testified that the accused was arrested in his presence and contraband was recovered from him. He has further submitted that PW2 claims that he had taken the rukka to the Duty Officer for registration of FIR and he had produced the rukka before the Duty Officer for registration of FIR and parcels and FSL form were produced by him before the SHO. He has further submitted that testimony of PW-2 Ct. Amit is inconsistent to the testimony of PW-1 ASI Satish Chand as PW-1, who is the Duty Officer in his cross-examination has deposed that he had signed the FIR and handed over copy thereof alongwith original rukka to ASI Vijay Kumar, who was present in the IO room in the Police Station Seelampur and SHO concerned had telephonically directed to hand over the investigation of this case to SI Vijay Kumar. It shows that SHO was not present in the 9 police station at that time, then who had received the parcels of the alleged contraband, FSL form from PW2. He has also submitted that PW1 has also deposed that he had received a direction at 5:25 PM and submitted that in view of contradictions in the testimony of PW-1 and PW-2, the case of the prosecution becomes doubtful, as it is not clear to whom the PW-2 has handed over parcels of the case property and form of FSL. He has further submitted that PW-4 ASI Jaivir in his cross- examination has deposed that Ct. Amit had left the place of occurrence alongwith Rukka at 5:00 PM and returned at the spot alongwith ASI Vijay Kumar at 6:30 PM and SI Dinesh Kumar had handed over all the pullandas, original rukka and all other documents, which were prepared by him to ASI Vijay and thus testimonies of PW-4 and PW-2 also become doubtful being inconsistent to each other. He has further submitted that DD No. 11/A does not reveal the name of the accused and submitted that as per law, the secret information should be clear and not vague, but, it does not reveal the name of accused, so, it becomes doubtful.
8. He has further submitted that Ct. Amit(PW-2) in his examination in chief has deposed that the accused was served with the notice U/sec.50 of the NDPS Act and also deposed that accused has refused to avail his right for conducting of his search in the presence of Gazetted Officer or Magistrate by saying that by doing so, he does not want to create more evidence against him and that he was having charas with him in the bag. He has 10 further submitted that if the notice U/sec.50 of the NDPS Act is looked into, which reveals that the said notice U/sec.50 of the NDPS Act was served to the accused, after the alleged recovery of the contraband as it is written therein that " JO MERE PASS THEE, VO SUB POLICE NE PAKAR LEE HAI " and submitted that this notice is also fabricated and it is no notice, within the meaning of U/sec.50 of the NDPS Act. He has further submitted that PW-2 Amit has deposed that they went to the spot at three motorcycles,whereas, PW-7 SI Ravinder has deposed that he alongwith SI Shahid Ali had gone in his car. He has further submitted that SI Shahid Ali has been examined as PW-6, who has stated that they went on the spot on foot and submitted that the alleged place of occurrence is thorough fare and PW-2 in his cross-examination admitted that SI Dinesh did not ask any public persons from the nearby school or hospital to join the investigation and submitted that despite of availability of school and hospital near the alleged place of occurrence, no public person or government employee were called by the Investigating Officer to join the investigation and in the absence of any public witness, the testimonies of police personnels cannot be relied upon, as the same are full of contradictions.
9. The Ld. Counsel for the accused has further submitted that there are material contradictions in the testimonies of SI Dinesh Kumar and PW-2 Amit, as, SI Dinesh has deposed that he and Ct. Amit had overpowered to the accused, whereas, Ct. Amit has been examined as PW-2, who had deposed that all the members 11 of the raiding team had overpowered to the accused.
10. He has also submitted that PW-2 has deposed that he had brought the weighing machine to measure the weight of the contraband, but, in his cross-examination, he has deposed that he does not know who had gone to return the said weighing machine. PW-2 also deposed that he does not know whether the seal was put on the FSL form or not and thus, the presence of this PW-2 becomes doubtful at the spot.
11. He has further submitted that that the prosecution has claimed that the PW-2 is the witness of seizure of the alleged contraband, but, during his cross-examination, he had deposed that he does not know, who had signed the seizure memo. He has further submitted that PW-2 during his cross-examination, has deposed that he had signed his statement recorded on the intervening night of 23/24.01.2018, but, no such statement was ever brought on record by the prosecution.
12. He has further submitted that PW-2 has deposed that ATM card, PAN card, Rs.40/-, one wrist watch of RADO were recovered during the personal search of the accused and he has no where deposed that even the notice u/s. 50 of NDPS Act was recovered in the personal search of the accused.
13. He has further submitted that PW-4 Jaiveer has deposed in his examination-in-chief that accused was carrying a white colour bag in his hand and he was apprehended at the pullia, but, if the testimonies of other police witnesses are looked into then this accused was apprehended before the said pullia and near the 12 ATM of Axis bank.
14. He has further submitted that PW-4 in his cross- examination by the Ld. Addl. PP for the State has deposed that seal after use was handed over to him. He did not say so in his examination-in-chief and submitted that therefore, the testimony of this PW-4 also becomes doubtful.
15. He has further submitted that PW-4 in his cross- examination has deposed that SI Dinesh and SHO had disclosed the name of the accused, his parentage and his address, whereas, the other prosecution witnesses have deposed that secret informer did not disclose the name of accused or about his parentage and address.
16. He has further submitted that there are material contradictions in the testimonies of Ravinder and Shahid regarding taking of their position. PW-4 had stated that he had taken his position near ATM of Axis bank and Shahid says that he had taken the position near the ATM of Axis bank and submitted that since the reply of the notice u/s. 50 of NDPS Act allegedly written by the accused makes it clear that the same was prepared after alleged recovery of the contraband and submitted that the accused was forced to write the same.
17. He has further submitted that MHC(M) has been examined as PW-11, who has produced the register no. 19 Ex.PW11/A and during his cross-examination, he has admitted it to be correct that it is not mentioned in register no. 19 that FSL form was deposited with the pullandas by the SHO and 13 submitted that copy of register no. 19 Ex.PW11/A, reveals that it is no where mentioned in the register no. 19 that FSL form ever deposited in the malkhana and similarly in the copy of Road Certificate Ex.PW11/B, it is nowhere mentioned that FSL form was also sent with the alleged exhibits to the FSL and thus the case of the prosecution becomes doubtful.
18. He has further submitted that since, in the case in hand, the case of the prosecution is based on the witnesses of the police. Neither first IO nor second IO made any effort to join the public witness. He has further submitted that since the testimonies of the witnesses of the police are inconsistent to each other which makes the case of the prosecution to be doubtful, so, the benefit of doubt may be given to the accused, as the prosecution has failed to prove its case beyond reasonable doubt, and the accused has been falsely in the present case, so, he may be acquitted.
19. The prosecution has claimed that this accused was found in possession of 4.280 kilograms charas and in order to prove its case, ASI Satish Chand has been examined, as, PW-1, who has deposed that on dated 23.01.2018, he was posted as ASI at Police Station Seelampur and on that day he was performing his duties as Duty Officer at the Police Station since 8:00 am to 8:00 pm. At about 5:20 pm, Ct. Amit gave him a rukka of this case which was sent by SI Dinesh Kumar. Accordingly, on receipt of the rukka, PW-1 got registered FIR No. 16/2018 u/s 20 NDPS Act on computer through computer operator. After registration of 14 the FIR, the copy of FIR and rukka were handed over to ASI Vijay Kumar for further investigation as per directions of the SHO. PW-1 had brought the FIR register containing original/official copy of the FIR and copy of the same is Ex.PW1/A (OSR) bearing his signature at point A. PW-1 had also made kayami DD No. 14-A and endorsement regarding same was also made by him on the rukka Ex.PW1/B . He has further deposed that on the same day, he had also issued certificate u/s 65-B of Indian Evidence Act regarding the aforesaid FIR which is Ex.PW1/C.
20. This witness was cross-examined by learned counsel for the accused and during his cross-examination this witness has deposed that he was present in DO room at the time when contents of FIR were being typed by CIPA Operator in computer system. Kayami DD No. 14A was recorded regarding registration of FIR of this case. No separate DD entry was lodged after registration of FIR in this case. The factum of registration of FIR and entrustment of investigation to ASI Vijay Kumar, were mentioned in kayami DD NO. 14A itself. This witness has further deposed that after handing over original rukka to CIPA operator for typing the contents of the rukka for the purpose of registration of FIR, he went back to DO room and remained there till CIPA operator came to DO room for handing over typed copy of FIR to him, thereafter, he had signed the said FIR and handed over copy thereof alongwith original rukka to ASI Vijay Kumar who was present in the IO room in Police Station Seelampur 15 itself. This witness had further deposed that SHO concerned had telephonically directed to hand over investigation of this case to ASI Vijay Kumar and said direction was received by him at about 5:25 pm or so. During his cross-examination, this witness has also deposed that SHO concerned was not present in Police Station at that time, but, he does not recollect as to where had he gone. This witness had denied the suggestion that DD entry pertaining to this case was ante dated or ante timed by him at the instance of IO/SHO of Police Station Seelampur or that FIR in question was also ante dated and ante timed in the similar manner or that he has deposed falsely being police official or at the instance of the IO.
21. Ct Amit has been examined as PW-2, who has deposed that on dated 23.01.2018, he was posted as constable at Police Station Seelampur, Delhi and on that day at about 1:00 pm, one secret informer had met with SI Dinesh Kumar and told him that one person would come with charas in huge quantity at about 2:15 pm at Brahmpuri Pullia and, if raid is conducted, he may be apprehended. This witness has further deposed that after that SI Dinesh produced the secret informer before the SHO and after satisfying with the secret information, SHO had informed about the same to the senior police officials and directed SI Dinesh to form the raiding party and conduct the raid. This witness has further deposed that,thereafter, SI Dinesh had called him, SI Ravinder, ASI Jaivir and SI Shahid Ali in his office and organized a raiding party after briefing them about the contents 16 of the secret information. This witness has further deposed that SI Dinesh made DD No. 11A regarding the secret information and gave the copy of DD No. 11 A to SHO in compliance of Sec. 42 of the NDPS Act and after that at about 1:45 pm, after taking the IO kit by SI Dinesh and making departure entry vide DD No. 12A, they left the Police Station and reached at Brahmpuri Pullia, New Seelampur, Delhi. This witness has further deposed that SI Dinesh Kumar had conducted search of all the members of the raiding party and nothing was found from their search. This witness has further deposed that thereafter SI Shahid Ali had conducted search of SI Dinesh Kumar but nothing was also found from his search and after that SI Dinesh had asked 5-6 public persons to join the raiding party after briefing them about the contents of the secret information, but, none of them had joined and they went away without telling their names and addresses and due to paucity of time, no notice was served upon those persons. This witness has further deposed that after that SI Dinesh briefed them and they took their respective positions near the Pullia and started waiting for arrival of suspect.
22. This witness has further deposed that at about 2:15 pm, on seeing a person coming at Brahmpuri Pullia from the side of Ghonda Chowk, secret informer had pointed out towards him and at that time, the said person was having a bag of white colour in his hand. This witness has further deposed that after arriving there, the said person stood at the corner of ATM of Axis Bank and he was immediately apprehended by SI Dinesh with the help 17 of accompanying staff and after pointing out towards the said persons, secret informer had left from there. This witness has further deposed that on inquiry, the said person revealed his name as Zaheer Khan S/o Ismile Khan and witness had correctly identified the accused. This witness has further deposed that at that time, SI Dinesh again asked 5-6 public persons to join the proceedings, but, this time also no one agreed to join and left from there without telling their names and addresses. This witness has further deposed that after that SI Dinesh told the accused that he was having information that he was carrying charas with him for which his search was to be conducted and SI Dinesh also told him that it was his legal right that he may be searched in the presence of any Gazetted Officer or Magistrate for which Gazetted Officer or Magistrate may be called there and SI Dinesh also told him that prior to his search, he could also conduct his search. This witness has further deposed that at that time, SI Dinesh had served notice u/s. 50 of the NDPS Act upon the accused and the contents of the notice were read over and explained to the accused and accused had also read the said notice. This witness has further deposed that accused had refused to avail his right for conducting his search in the presence of Gazetted Officer or Magistrate by saying that by doing so, he does not want to create more evidence against him and that he was having charas with him in the bag. This witness has further deposed that accused also refused to conduct search of SI Dinesh and other members of the raiding team and accused had put his 18 signature on the copy of the notice in English and accused himself had written refusal on the copy of notice in his handwriting, on which, he had signed and this witness and ASI Jaivir had also signed the copy of notice as witnesses.
23. This witness has further deposed that after that SI Dinesh Kumar had taken the bag from the right hand of the accused which was checked and found contained 13 packets wrapped with yellow colour plastic tape. This witness has further deposed that same were opened and checked and on smelling and physical appearance, same were found to be charas. This witness has further deposed that one of the packets contained 16 gole of charas kept in a transparent plastic polythene, 03 packets contained charas in form of various slides which were found wrapped with red colour plastic polythene and same were counted and found 180 slides of charas. This witness has further deposed that the remaining 09 packets contained charas in form of square shapes and the recovered charas was weighed with the help of electronic weighing machine which was arranged from a nearby shopkeeper. This witness has further deposed that the weight of 16 gole of charas, after removing polythene, was 300 grams and the weight of 180 slides, after removing polythene, was 1.7 kgs and weight of 09 square shape pieces of charas with polythene was 2.190 kgs. This witness has further deposed that the total weight of recovered charas was 4.280 kgs and out of the recovered charas, 03 gole of charas, 11 slides of charas and 01 square shape charas were taken out for samples and the weight of 19 03 gole of sample charas was 60 grams, the weight of 11 slides of sample charas was 100 grams and the weight of 01 square shape sample charas was 250 grams. This witness has further deposed that all the samples were kept in three separate white colour plastic polythene and their separate pullandas were prepared which were marked as S-1, S-2 and S-3 and the remaining charas was kept in separate plastic polythene and their separate cloth pullandas were prepared which were given marked as A-1, A-2 and A-3. This witness has further deposed that the pullandas of samples and recovered charas were sealed by SI Dinesh Kumar with the seal of DK and FSL form was also filled up and seal of DK was also affixed on it and further deposed that seal after use was handed over to ASI Jaivir. This witness has further deposed that the pullandas containing charas were taken into possession by SI Dinesh vide seizure memo Ex.PW2/A bearing signature of this witness at point A. This witness has further deposed that the bag was also taken into possession by SI Dinesh vide seizure memo Ex.PW2/B bearing signature of the witness at point A. This witness has further deposed that empty packets and plastic polythene were kept in a white cloth and pullanda was prepared and the same was sealed with the seal of DK and it was marked as P-1 and same was taken into possession vide seizure memo Ex.PW2/C bearing signature of this witness at point A. After that SI Dinesh had made rukka for registration of the case against the accused and handed over rukka to him alongwith all the sealed pullandas, copy of seizure 20 memo FSL form and sent him to Police Station with direction to handover rukka to DO for registration of FIR and to produce pullandas, copy of seizure memo and FSL form before the SHO. This witness has further deposed that accordingly, at about 5:00 pm, he left the spot and reached Police Station Seelampur where he handed over the rukka to the DO for registration of the case and this witness produced the sealed pullandas, copy of seizure memo and FSL form to the SHO and after registration of the case, further investigation was marked to ASI Vijay Kumar and after taking copy of FIR, he alongwith ASI Vijay Kumar left the Police Station and reached the spot. This witness has further deposed that SI Dinesh briefed ASI Vijay Kumar and handed over the accused in his custody alongwith the seizure memos prepared by him.
24. This witness has further deposed that,thereafter, ASI Vijay prepared site plan of the place of occurrence at the pointing out of SI Dinesh and SI Vijay also put details of FIR number on the seizure memos. After interrogation, accused Zaheer Khan was arrested by ASI Vijay vide arrest memo Ex.PW2/D and his personal search was also conducted vide memo Ex.PW2/E.
25. This witness has further deposed that on the personal search of the accused, notice u/s. 50 of the NDPS Act, one mobile phone make LAVA, one wrist watch of brown colour make Rado Quartz and one purse containing 5 ATM Card, one PAN card, one Aadhar Card, Rs.40/- alongwith some visiting cards were recovered and at the time of interrogation, the 21 accused had disclosed that he had procured the recovered charas from one Shakir from Shamli. This witness has further deposed that ASI Vijay also recorded disclosure statement of the accused which is Ex.PW2/F bearing his signature at point A. At the time of arrest, notice u/s. 52 of the NDPS Act was also served upon the accused by ASI Vijay vide Ex.PW2/G bearing his signature at point A. This witness has further deposed that after arrest, accused was taken to JPC hospital, where he was got medically examined and thereafter accused was taken to Police Station Seelampur, where he was put in the lock up. He has also stated that his statement was recorded by ASI Vijay. This witness has further deposed that copy of notice containing refusal by the accused regarding his search is Ex.PW2/H. This witness has also identified the case properties Ex. P1, P2, P3, P4, P5, P6, P7 & P8.
26. He has also identified various polythenes of red colour and yellow colour tape kept in a white polythene. On seeing the same, witness states that these are the same polythene (panni) and tape in which the charas was kept by the accused at the time of recovery and which were emptied after recovery. Same are Ex. P-7 (colly.). He has also identified the bag Ex.P8.
27. Ct. Amit (PW-2) was cross-examined by the counsel for the accused and during his cross-examination, PW-2 has deposed that he got posted in Police Station Seelampur somewhere in the month of June or July 2017 or so and on dated 23.01.2018 in between 1:00-1:30 PM, SI Dinesh Kumar had shared the secret 22 information in the room of the SHO room and at that time, concerned SHO, SI Ravinder, SI Shahid Ali, ASI Jaiveer and this witness were present, besides SI Dinesh Kumar. This witness had admitted that secret informer was not present in the said room at that time and he did not have any kind of conversation with secret informer till apprehension of accused in this case. This witness had admitted it to be correct that in his presence, concerned SHO did not talk to secret informer and he did not know if SHO had ever spoken to secret informer concerning this case or not. This witness had admitted it to be correct that while sharing secret information, SI Dinesh Kumar had not disclosed the name, parentage, address, age, height or physical description of the accused or nature and colour of wearing clothes of the suspect, however, SI Dinesh had disclosed that the suspect would bring contraband item in ladies bag, as per secret information received by him. This witness had admitted it to be correct that SI Dinesh Kumar did not disclose about the quantity of contraband and place, from where, the suspect would come or the place to which he would go and he had also not disclosed about the previous involvement, if any, of the said suspect. He has further deposed that SI Dinesh had made departure entry vide DD No. 11 A, while the raiding team had left Police Station Seelampur after receipt of secret information, but, he does not remember, the time, when said DD entry was lodged by him or that the factum of taking of IO kit by SI Dinesh, was mentioned in DD No. 11 A or not. He has further deposed that it is not 23 within his knowledge, if copy of DD No. 11 A was collected or was with SI Dinesh Kumar, when they had gone to the place of apprehension. He has further deposed that the distance between the place of apprehension of the accused and the Police Station is about half km and he himself had gone on his own motorcycle, whereas SI Dinesh alongwith SI Ravinder had gone on another motorcycle, and ASI Jaiveer and SI Shahid Ali had gone on another motorcycle. He has further deposed he does not remember the maker, colour or registration numbers of said two other motorcycles. He has further deposed that IO kit was containing in one bag, but, he does not recollect its maker, size or colour or the stuff thereof. He has further deposed that there were residential houses and shops situated near the place of apprehension of the accused and there were also one government school and office of Delhi Jal Board, Pump House. He has further deposed that there was another govt. school situated in between Pandu Sheela Mandir and Brahmpuri pulia,but, he does not know, if said school was running in two shifts at that time or not and JPC hospital was situated at a distance of about 200 meter from the place of alleged apprehension of the accused. He has further deposed that in his presence, SI Dinesh did not call any of the official from aforesaid govt. schools, or office of Delhi Jal Board, Pump House or even from JPC hospital or any public person from nearby residential houses and shops, either before or after apprehension of accused. He has further deposed that there was one police booth situated near Brahmpuri pulia. This witness 24 had denied that at least one police official always remain available in the said police booth for the purpose of general checking. He has further deposed that there is one way leading from Brahmpuri pulia to Chauhan Bangar pulia, alongwith said police booth and there was road divider on Brahmpuri road and they had parked their motorcycles behind the said police booth. He has further deposed that he was standing behind police booth before apprehension of accused and he was directed by SI Dinesh to hide himself behind police booth and other members of raiding team had also taken their respective positions, but, he does not know their exact positions and only SI Shahid Ali was visible to him from his position and SI Shahid Ali was standing on his opposite direction towards Pandu Sheela Mandir side. He has further deposed that secret informer was not standing near him and he does not know as to where the secret informer was present at the time of apprehension of accused and he does not have knowledge about the directions i.e. East, West, South and North,but, accused had come from the side of Ghonda Chowk towards Brahmpuri pulia.
28. He has further deposed that accused was overpowered by all the members of the raiding party and SI Shahid Ali had given him signal about the accused and SI Shahid Ali was standing at a distance of about 10-12 meters or so from the place, where he was standing. He has further deposed that he had seen the accused from a distance of about 5-7 meters or so, across the road as police booth was situated at corner of the road and 25 normal traffic was there on the road at the time of apprehension of the accused. He has further deposed that the proceedings after apprehension of accused, were conducted in front of ATM booth of Axis bank and there was no guard present in the said ATM at that time. He has further deposed that secret informer had left the said place, when the proceedings were being conducted and no public persons gathered at there, during the said proceedings. He has further deposed that there was CCTV camera installed in the said ATM booth and in his presence, no effort was made to call any official of Axis bank to collect CCTV footage from CCTV camera installed in the said ATM booth till the time, he had finally left the spot, on that day.
29. He has further deposed that it is not within his knowledge,if it was mentioned in notice u/s. 50 of the NDPS Act regarding receipt of secret information by the police or not and he had signed said notice only once and he had signed the said notice after going through it. He has further deposed that it is not within his knowledge,if accused had given in writing regarding his refusal to avail his right for getting his search conducted in the presence of Gazetted Officer or Magistrate or that accused refused to conduct search of SI Dinesh and of other members of the raiding team.
30. He has further deposed that he had signed on notice u/s. 50 of the NDPS Act, when, it was not containing any reply from the side of accused and he does not remember, as to for how many times, accused had put his signatures on the said notice. He has 26 further deposed that he himself had not put date below his signature on said notice,but, he does not know, if ASI Jaiveer or accused had put date below their respective signatures on the said notice or not and said notice was prepared in duplicate. He has further deposed that original copy of said notice was given to the accused and he does not recollect, if it was mentioned in said notice that it was legal right of accused to get himself searched in the presence of Gazetted Officer or Magistrate or not and said notice was handed over to accused prior to explaining about the legal right of accused and other relevant facts by SI Dinesh Kumar to the accused. He has further deposed that the search of carrying bag of accused was also conducted after handing over the aforesaid notice to him. He has also deposed that he had gone through the reply given by the accused,but, he does not recollect contents thereof.
31. He has further deposed that he had brought weighing machine from shopkeeper having his shop situated nearby,but, said shopkeeper refused to disclose his name on the plea that he did not want to be involved in police proceedings and said shop was however, situated towards Ghonda Chowk side. He has further deposed that he does not recollect the nature of business activity being done in the said shop or that if any sign board was there outside the said shop or not or that he did not notice, if sign board was present on any other nearby shops of the said shop, or not. He has further deposed that there was one MAZAR near the said shop ,but, he does not recollect,if, said shop falls before said 27 MAZAR or after crossing the same. He has further deposed that shopkeeper did not accompany him to the spot and he does not know the maker of said weighing machine,but, it was made of steel and it was electronic weighing machine. He has further deposed that he did not notice as to whether weighing capacity was mentioned on the said machine or not and the weighing machine was returned after about 2 hours or so, but, he does not recollect as to who had gone there to return the same.
32. He has also deposed that handing over memo was prepared regarding handing over of seal after use to ASI Jaiveer by SI Dinesh Kumar and copy of said memo was handed over to him by SI Dinesh. He has further deposed that ASI Jaiveer did not return the seal to SI Dinesh in his presence and he does not recollect as to how many seals were affixed on each pullanda. He has further deposed that he does not know as to from where piece of cloth was arranged, in which pullandas of clothes were prepared by the IO.
33. He has further deposed that he does not recollect, as to how many copies of FSL form were prepared and he also does not remember, as to in how many pages, of the said FSL form were there and he also does not recollect, as to whether said FSL form was printed or typed or handwritten. He has further deposed that he also does not remember, as to how many columns were there in the said form or that, if said FSL form was kept in any sealed envelope or in any sealed pullanda or not, but, one FSL form was handed over to this witness. He has also deposed that 28 he does not recollect that if IO had affixed seal on said FSL form or not.
34. He has further deposed that the writing work was done near the place of apprehension of accused,but, he does not remember, if it was done, while in standing condition or in sitting condition and it had taken about 2 - 2 ½ hours in conducting the relevant proceedings at the spot, on that day. He has further deposed that he had left the spot at about 5:00 pm for registration of FIR at the Police Station, by foot and he does not remember, if he had taken original seizure memo or copy thereof alongwith rukka for registration of FIR.
35. He has further deposed that he does not recollect about total number of sealed pullandas, which were taken by him to Police Station. He has further deposed that he had reached at Police Station within 10-15 minutes or so and stayed in Police Station for about 30-45 minutes or so,but, he does not recollect as to how did he go at the spot, alongwith ASI Vijay, after registration of FIR. He has also deposed that at that time, ASI Vijay was having copy of FIR. He has also deposed that only one seizure memo was prepared by the IO in respect of pullandas. He has further deposed that he does not know as to in how many pages, the said seizure memo were prepared, perhaps one carbon copy of the seizure memo was prepared and he does not know as to who had signed the said seizure memo. He has also deposed that he does not know as to which document was handed over to ASI Vijay by SI Dinesh. He has further deposed that he remained 29 at the spot for about 2 2 ½ hours after coming back to the spot with ASI Vijay Kumar and SI Vijay Kumar had prepared arrest memo, personal search memo and conviction slip at the spot,but, he does not recollect as to statements of how many persons were recorded at the spot. He has further deposed that his statement was recorded by ASI Vijay in the Police Station, during intervening night of 23/24.01.2018 and he had read his said statement and he had also signed his said statement. He has also deposed that ATM Card, PAN Card, Rs.40/-, one wrist watch maker Rado and some other article were recovered during personal search of the accused. He has further deposed that the arrest memo Ex.PW2/D was as it is from top to bottom, when he had signed the same and none from the family of accused had come to the spot till he left the spot. This witness has denied that no secret information was shared with him by SI Dinesh Kumar or that he had not joined the raiding party, on that day or that the accused was not arrested in the manner as stated by him or that nothing was recovered from the possession of the accused as stated by him or that he had signed all the documents in the police station at the instance of the IO or that due to this reason, he failed to answer the material questions or that he has deposed falsely being police official or at the instance of the IO.
36. Dr. Subhash Chandra, SSO, Chemistry, from the FSL, Rohini, Delhi has been examined as PW-3. Who has testified that on 06.02.2018, three sealed parcels were received in the Office of FSL, Rohini from SHO of police station Seelampur 30 through ASI Lal Dev, in connection with case FIR No. 16/18 PS Seelampur u/s 20 NDPS Act and the same were marked to him for physical, microscopic, chemical and TLC examination. This witness has further testified that the same were examined by him and he found that the seal was intact on the three parcels and seals were tallied with the specimen seal and Parcel No. S-1 contained exhibit S-1 i.e. Dark brownish coloured resinous semi solid material kept in a polythene and Parcel No. S-2 contained exhibit S-2 i.e. Dark brownish coloured resinous semi solid material kept in a polythene and Parcel No. S-3 contained exhibit S-3 i.e. Dark brownish coloured resinous semi solid material kept in a polythene which was further found kept in a polythene. He has also deposed that on physical, microscopic, chemical and TLC examination, exhibit S-1, S-2 and S-3 were found to contain 'Charas' i.e. (cannabis). He has also deposed that after examination, the remnants were sealed with the seal of SC FSL Delhi and he had also prepared his detailed report regarding examination of aforesaid exhibits by him and same is Ex.PW3/A (running into two pages) and he has identified his signature thereon at point A.
37. This witness has identified 03 gole of charas, which were examined by him Ex. P-1 (colly.). This witness has also identified the 11 slides, which were examined by him Ex. P-2 (colly.). This witness has also identified one square piece, which was examined by him Ex. P-3. This witness was not cross- examined by the Ld. Counsel for the accused.
3138. ASI Jaivir has been examined as PW-4, who has testified that on dated 23.01.2018, he was posted as ASI at Police Station Seelampur, Delhi and on that day at about 1:00 pm, when he was present at the police station, one secret informer had met with SI Dinesh Kumar and told him that one person would come with charas in huge quantity at about 2:15 pm at Brahmpuri Pullia, and if raid is conducted, he may be apprehended. He has further testified that after that SI Dinesh produced the secret informer before the SHO and after satisfying with the secret information, SHO had informed about the same to the senior police officials and directed SI Dinesh to form the raiding party and to conduct the raid. He has further testified that thereafter SI Dinesh had organized a raiding party consisting Ct. Amit, SI Ravinder, SI Shahid Ali and this witness and briefed them and at that time, SI Dinesh made DD No.11A, regarding the secret information and gave the copy of DD No.11A to SHO in compliance of Sec. 42 of the NDPS Act.
39. He has further testified that after that at about 1:45 pm, after making departure entry vide DD No. 12A, they left the police station and reached at Brahmpuri Pullia, New Seelampur, Delhi and there SI Dinesh Kumar had conducted search of all the members of the raiding party and nothing incriminating was found from them. He has further testified that thereafter SI Shahid Ali had conducted search of SI Dinesh Kumar, but, nothing incriminating was also found from him and after that, SI Dinesh had asked 5-6 public persons to join the raiding party 32 after briefing them about the contents of the secret information, but, none of them had joined and they went away without telling their names and addresses. He has further testified that after that SI Dinesh briefed them and they took their respective positions near the Pullia and started waiting for arrival of suspect.
40. He has further testified that at about 2:15 pm, on seeing a person coming at Brahmpuri Pullia from the side of Ghonda Chowk, secret informer had pointed out towards him and at that time, the said person was having a lady bag of white colour in his right hand. He has further testified that after arriving there, the said person stood at the pullia and the said person was apprehended. He has further testified that on inquiry, he revealed his name, which he does not remember, and witness again said, the name was Zahid. Again said, the name was Zaheer and this witness had correctly identified the accused. He has further testified that after that SI Dinesh asked 4-5 public persons to join the proceedings, but, none agreed to do the same and they left from there without disclosing their names and addresses and no written notice was given to those public persons. He has further testified that after that SI Dinesh told the accused that he was having information that he was carrying charas with him for which, his search was to be conducted. He has further testified that at that time, SI Dinesh Kumar had also told accused Zaheer Khan that it was his legal right that if he wants, his search could be conducted in the presence of any Gazetted Officer or Magistrate and accused was also told that prior to his search, he 33 could also take the search of police officers. He has further testified that at that time, accused was served notice u/s. 50 of the NDPS Act by SI Dinesh Kumar and accused had refused to avail his legal right by saying that he did not want to call any Gazetted Officer or Magistrate, as he was in possession of Charas and he did not want to create more evidence against him. He has further testified that contents of the notice were also read over to the accused and he had signed the said notice. He has further testified that accused had also signed his refusal in English, on the carbon copy of the notice and accused had also refused to take search of the members of the raiding party, prior to his search. He has further testified that at that time, accused was having one ladies bag in his right hand and the said bag was checked, which contained 13 packets wrapped with yellow colour plastic tape and on smelling and physical appearance, the same were found to contain charas. He has further testified that one of the packets, contained 16 gole of charas kept in a transparent polythene and the three packets contained charas in the form of various slides kept in transparent polythene, which were found 180 slides of charas. He has further testified that remaining 9 packets contained charas in the form of squares and the aforesaid charas was weighed with the help of weighing machine, which was arranged from a nearby shopkeeper. He has further testified that total weight of the charas was 4.280 kgs and the weight of the gole of charas was 1.700 kgs. Again said, the weight of 16 gole of charas was 300 gms. The weight of 180 34 slides was 1.790 kg. The weight of 9 packets was 2.190 kg. 3 gole, 11 slides and one packet were taken out as samples. The weight of 3 gole was 60 gms, weight of 11 slides was 100 gms, and weight of one packet was 250 gms. He has further testified that separate pullandas were prepared of sample material by keeping them in three separate polythene pack and in separate cloth and parcels were sealed with seal of DK and parcels were given marking of S-1, S-2 and S-3 and he had also signed on the pullandas. He has further testified that the remaining charas was also converted into three separate pullandas by keeping them in polythene pack and cloth and they were given marking of A-1, A- 2 and A-3. He has further testified that they were sealed with the seal of DK and he also signed on the same. He has further testified that FSL form was also filled up by SI Dinesh Kumar and SI Dinesh Kumar prepared tehrir. He has further testified that SI Dinesh also prepared parcel of the yellow colour polythene with cloth and sealed it with seal of DK and he signed the same. He has further testified that SI Dinesh also seized one ladies bag, which was recovered from the accused, vide seizure memo Ex.PW2/B and he has identified his signature thereon at point B.
41. He has further testified that SI Dinesh gave the rukka to Ct. Amit alongwith samples, remaining charas, bag and FSL form and photocopy of seizure memo of bag and charas.He has further testified that later on, ASI Vijay came to the spot alongwith Ct. Amit and after that, ASI Vijay arrested the accused and he has identified his signature at point B, on the carbon copy 35 of notice Ex.PW2/H.
42. He has further testified that he had signed notice Ex.PW2/H at point B1 and on the refusal of accused on the notice at point B.
43. This witness has also identified the case property Ex. P-1, Ex. P-2 , Ex. P-3, Ex. P-4 , Ex. P-5, Ex. P-6, Ex. P-7 and Ex. P-
8.
44. Since, this witness was alleged to have resiled from his previous statement so, the learned Additional Public Prosecutor for State had sought permission to cross-examine this witness and after hearing, the learned predecessor of this court was pleased to allow learned Additional Public Prosecutor for State to cross-examine this witness and during his cross- examination, this witness had admitted it to be correct that recovered charas and its samples were seized, vide a seizure memo Ex.PW2/A bearing his signature at point B and emptied packets of charas and plastic polythene were also separately seized, vide a seizure memo Ex.PW2/C, bearing his signature at point B. He has further admitted it to be correct that seal after use was handed over to him and it was carbon copy of seizure memo, which was sent to SHO through Ct. Amit and not photocopy alongwith the pullandas and FSL form. He has further deposed that he could not tell these facts correctly earlier, as he had forgotten the same.
3645. PW-4 was cross-examined by the Ld. Counsel for the accused. During his cross-examination, he has deposed that he was posted at PS Seelampur in month of March/April 2017 and he was aware about the area falling within the jurisdiction of police station Seelampur. He has further deposed that he was told about the secret information by concerned SHO at police station on 23.01.18 at 1:00 pm and he himself did not talk to secret informer till apprehension of accused in this case and secret informer was also present at the time, when the concerned SHO had shared the secret information with them. He has further deposed that in his presence, SHO had talked with secret informer and the SHO and SI Dinesh had also disclosed the name, parentage and address of suspect, while sharing the secret information with him and they had also shared with him that the age of suspect was about 40 years and he was having light beard, but, apart from this, no other physical description or the colour and nature of wearing clothes of suspect was disclosed. He has further deposed that they had also disclosed to him that suspect would come on foot, while carrying a thaila in his hand, however, colour of thaila was not disclosed and it was also not disclosed, as to how much quantity of contraband would be carried by suspect and to whom the said contraband item was to be supplied and it was also not disclosed, as to from whom, the suspect had procured the contraband item.
46. He has further deposed that DD No. 11A was lodged by SI Dinesh Kumar in his presence at 1:00 pm and copy of DD No. 37 11A was taken with him by SI Dinesh Kumar, when he had left for conducting the raid from the police station on that day and he had seen DD No. 11A at the spot, while relevant proceedings were being done. He has further deposed that it was not mentioned in DD No. 11A that SI Dinesh Kumar was carrying field testing kit and IO bag with him, while leaving police station and the distance between police station Seelampur and Brahampuri Puliya was about 500-750 meters and they had gone to Brahampuri Puliya on three motorcycles. He has further deposed that he does not remember the registration numbers of other two motorcycles used by other members of raiding party and one of said other two motorcycles was of make Splendor and was of black and white colour, however, he does not remember the make and colour of other motorcycle and SI Dinesh Kumar was driving motorcycle make Splendor and Ct. Amit was sitting as pillion rider on it. He has further deposed that SI Ravinder was driving the other motorcycle and SI Shahid Ali was sitting as pillion rider on it and they had reached Brahampuri Puliya within 15 minutes and there was police booth at Brahampuri Puliya. He has further deposed that one of those motorcycles, belonging to him, was parked at said police booth, another motorcycle was parked near Axis Bank and third motorcycle was parked near medical gas agency situated opposite police booth and he alone had driven his motorcycle to the said place.
47. He has further deposed that accused was apprehended after about 30 minutes of their reaching at the said place and four-five 38 passersby were requested to join the proceedings, but, none agreed and they all left without disclosing their names and addresses and by citing their personal difficulties and IO had not written down the personal difficulties on any paper. He has further deposed that the said passersby had disclosed their different personal difficulties and no written notice was served upon those passersby and no action was taken against any of them for not joining the proceedings by them.
48. He has further deposed that the size of testing kit available with IO, was 1 x 1 ft. and it was contained in cloth type bag and as per his knowledge, IO kit and IO bag is one and the same thing. This witness has admitted it to be correct that there were shops and residential houses situated on both sides of Brahampuri Puliya and there is office of Delhi Jal Board Pump House on right hand side and one govt. school on left hand side, while one goes from Brahampuri Puliya towards Seelampur side and they were situated at a distance of 500 meters from the place of alleged apprehension of accused. This witness has admitted it to be correct that there is one govt. school situated on right hand side, while going from Brahampuri Puliya towards JPC Hospital at a distance of about 200 meters from the place of alleged apprehension of accused and govt. school, while going towards JPC Hospital, was running in two shifts, but, he has denied the suggestion that the other govt. school towards Seelampur side, was also running in two shifts. This witness has further deposed that the aforesaid office of Delhi Jal Board Pump House is 39 situated at about 300 meters from police station Seelampur and he does not remember about the week day, which was there on 23.01.18 and none from aforesaid govt. schools or from office of Delhi Jal Board Pump House or JPC Hospital was requested to join the raiding party. This witness has further deposed that however, none from the aforesaid institutions, was asked to join the proceeding even after apprehension of accused and one-two shopkeepers/residents were requested to join the proceeding by SI Dinesh Kumar, but, they also did not agree and cited their personal difficulties and no SPO of police station Seelampur resides near Brahampuri Puliya. He has denied the suggestion that police personnels remained present on the police booth round the clock for general checking and admitted it to be correct that there is one road leads to Chauhan Banger besides nala and he took position near Axis Bank and Ct. Amit had taken position at police booth, SI Dinesh and SI Shahid took positions across the road near medical gas agency. He has further deposed that all the members of the raiding party were visible to each other and secret informer was standing with SI Dinesh and SI Shahid.
49. He has further deposed that when SI Dinesh Kumar had given signal, accused was still behind the place, where he had taken his position and the distance between Brahampuri Puliya and Axis Bank was about 12-13 feet or so and there was no shop or residential house situated between police booth and Axis Bank. He has further deposed that the width of Brahampuri Road was about 60 ft. and there was road divider in between and the 40 width of road going from Brahampuri Puliya towards Chauhan Banger was about 12-13 feet. He has further deposed that several public persons were passing from the place at the time of alleged apprehension of accused and SI Dinesh Kumar alongwith Ct. Amit had overpowered the accused and there was CCTV camera situated at the gate of Axis Bank. He has further deposed that in his presence, IO neither saw CCTV footage nor seized any such CCTV footage of said CCTV camera either on that day or any other day.
50. He has further deposed that notice u/s 50 of the NDPS Act was prepared in duplicate and he had signed the said notice only once and he had signed said notice after reply of accused was written on it and he had seen signature of accused at one place on said notice, but, he does not remember, as to how many times, accused had signed the said notice. He has further deposed that original of notice u/s 50 of the NDPS Act was handed over to the accused and the said notice was handed over to accused before he had furnished his reply on it and the reply of accused was mentioned on original as well as on carbon copy thereof. He has further deposed that it was mentioned in the reply of accused that since, he was in possession of charas and he did not want to create more evidence against him and accused had refused to take search of the members of raiding party, prior to his own search. He has further deposed that the writing work was done by SI Dinesh Kumar near Axis Bank and SI Dinesh Kumar had also offered accused to take search of his IO bag at the time of 41 serving notice u/s 50 of the NDPS Act upon him, however, search of their motorcycles was not offered to accused in his presence, at that time. He has further deposed that the writing work was done while sitting on footpath (pavement) and no public person came at the time, when writing work was being done and they all police officials were in official uniform at that time.
51. He has further deposed that weighing machine was brought by Ct. Amit, but, he does not know the name of shopkeeper from whom, said weighing machine was arranged, however, his shop was situated towards Brahampuri side. He has further deposed that he cannot tell colour or make of said weighing machine and the capacity of said weighing machine and the recovered item was weighed on three occasions and the seizure memo of case property was prepared, after weighing it and three copies of seizure memo were prepared. All the said three copies of seizure memo were handed over to ASI Vijay and carbon copy of notice u/s 50 of the NDPS Act was handed over to ASI Vijay and SI Dinesh Kumar had put different number of his seal impression on the pullandas and no handing over memo was prepared at the time, when he had returned the seal to SI Dinesh Kumar and seal was returned by him on the same day at about 9:30/10:00 pm.
52. He has further deposed that two copies of FSL form were prepared at the time of seizure of case property and FSL form was typed document, but, he does not remember, as to how many 42 columns were there in the said form and as to in how many pages, said form was running and FSL form was put in envelope and it was also sealed.
53. He has further deposed that Ct. Amit had left with rukka at about 5:00 pm and returned alongwith ASI Vijay to the spot at about 6:30 pm and SI Dinesh Kumar had handed over all the pullandas, original rukka and all other documents, which were prepared by him to ASI Vijay. He has further deposed that his statement was recorded at the spot by ASI Vijay in his own handwriting and he had gone through the said statement, but, he had not signed it and ASI Vijay had recorded statements of all the members of raiding party at the spot.
54. This witness had denied the suggestion that no secret information was shared with him by SHO or SI Dinesh Kumar or that no raid was conducted in the manner, as stated by him or that no contraband item was recovered from the possession of the accused or that no disclosure statement was made by the accused or that he had signed all the documents in the police station at the instance of SI Dinesh Kumar and ASI Vijay or that he never visited Brahampuri Puliya on 23.01.18 or that the accused has been falsely implicated in the present case and he has denied that he has deposed falsely.
55. SI Rizwan Khan has been examined as PW-5, who has deposed that on dated 24.01.2018, he was posted as SO to ACP, Sub Division, Seelampur, Delhi namely Sh. Shashank Jaiswal. This witness has further deposed that on that day, one 43 information in compliance of Sec. 42 of the NDPS Act dt. 23.01.2018, vide DD No. 11 A police station Seelampur written by SI Dinesh Kumar was received in the office of ACP Seelampur and at the same time, another information in compliance of Sec. 57 of the NDPS Act, written by SI Dinesh Kumar in case registered, vide FIR No. 16/18 dt. 23.01.2018 and one more information in compliance of Sec. 57 of the NDPS Act written by ASI Vijay Kumar in case registered, vide FIR No. 16/18 dt. 23.01.2018 were received. This witness has further deposed that the entries regarding aforesaid informations were made in diary register on the same day vide Srl. No. 345, 346 and 347 and he had put up all the three informations before the ACP, who had seen and signed the same. The photocopy of DD register containing the relevant entry is Ex.PW5/A, the original information/report u/s. 42 of the NDPS Act is Ex.PW5/B bearing signature of ACP at point A, the original information/report u/s. 57 NDPS Act prepared by SI Dinesh Kumar is Ex.PW5/C bearing signature of ACP at point A, the original information/report u/s. 57 of the NDPS Act prepared by ASI Vijay Kumar is Ex.PW5/D bearing signature of ACP at point A.
56. This witness was cross-examined by the Ld. Counsel for accused and during his cross-examination, he has deposed that normally he remained on duty from 9:30 AM to 6:00 PM and ACP had seen the reports in his presence. He has admitted it to be correct that record brought by him is official record.
57. SI Shahid Ali has been examined as PW-6, who has 44 deposed that on dated 23.01.2018, he was posted as Sub Inspector at police station Seelampur, Delhi and on that day at about 1:00 PM, when, he was present in the police station, one secret informer had met with SI Dinesh Kumar and told him that one person would come with charas in huge quantity at about 2:00/2:15 PM at Brahmpuri Pullia, if raid is conducted, he could be apprehended. He has further deposed that after that SI Dinesh produced the secret informer before the SHO and after satisfying with the secret information, SHO had informed about the same to the senior police officials and directed SI Dinesh to form a raiding party and to conduct the raid. He has further deposed that thereafter SHO had called him, SI Dinesh, SI Ravinder, ASI Jaivir and Ct. Amit in his office and organized a raiding party after briefing them about the contents of the secret information, SI Dinesh lodged DD No. 11A regarding the secret information and gave the copy of DD No. 11 A to SHO in compliance of Sec. 42 of the NDPS Act. He has further deposed that after that at about 1:45 PM, after taking the IO kit by SI Dinesh and making departure entry, vide DD No. 12A, they left the police station and reached at Brahmpuri Pullia, New Seelampur, Delhi on foot and SI Dinesh Kumar had conducted search of all the members of the raiding party and nothing was found from their search. He has further deposed that thereafter he had conducted search of SI Dinesh Kumar, but, nothing was also found from his search and after that SI Dinesh had asked 5-6 public persons to join the raiding party, after briefing them about the contents of the secret 45 information, but, none of them had joined and they went away without telling their names and addresses. He has further deposed that due to paucity of time, no notice was served upon those persons and after that SI Dinesh briefed them and they took their respective positions near the Pullia and started waiting for arrival of suspect.
58. He has further deposed that at about 2:15 PM, on seeing a person coming at Brahmpuri Pullia, from the side of Ghonda Chowk, secret informer had pointed out towards him and at that time, the said person was having a bag of white colour in his hand and after arriving at there, the said person stood at the corner of ATM of Axis Bank. He has further deposed that he was immediately apprehended by SI Dinesh with the help of accompanying staff and after pointing out towards the said persons, secret informer had left the spot. He has further deposed that on enquiry, the said person revealed his name as Zaheer Khan S/o Ismail Khan and the accused was correctly identified by the witness in the court. He has further deposed that at that time, SI Dinesh again asked 5-6 public persons to join the proceedings, but, this time also no one agreed to join and left from there without telling their names and addresses and after that SI Dinesh told the accused that he was having information that he was carrying charas with him, for which, his search was to be conducted and it was his legal right that he may be searched in the presence of any Gazetted Officer or Magistrate, for which, the Gazetted Officer or the Magistrate could be called at there 46 and meaning of the Gazetted Officer and the Magistrate was explained to the accused. He has further deposed that SI Dinesh also told him that prior to his search, he could also conduct his search and at that time, SI Dinesh had served notice u/s. 50 of the NDPS Act to this accused and the contents of the notice were read over and explained to the accused and accused had also read the said notice. He has further deposed that accused had refused to avail his right to be searched in the presence of the Gazetted Officer or the Magistrate by saying that by doing so, he does not want to create more evidence against him and that he was having charas with him in the bag and accused also refused to conduct search of SI Dinesh and other members of the raiding team. He has further deposed that accused had put his signature on the copy of the notice in English and accused himself had written refusal on the copy of notice in his handwriting, on which, he had signed. Ct. Amit and ASI Jaivir had also signed the copy of notice as witnesses.
59. He has further deposed that after that SI Dinesh Kumar had taken the bag from the right hand of the accused which was checked and it contained 13 packets wrapped with yellow colour plastic tape and same were opened and checked and on smelling and physical appearance, same were found to be charas. He has further deposed that one of the packets contained 16 gole of charas kept in a transparent plastic polythene, 03 packets contained charas in form of various slides which were found wrapped with red colour plastic polythene and same were 47 counted and found 180 slides of charas and the remaining 09 packets contained charas in form of square shapes and the recovered charas was weighed with the help of electronic weighing machine which was arranged from a nearby shopkeeper. He has further deposed that the weight of 16 gole of charas, after removing polythene, was 300 grams and the weight of 180 slides, after removing polythene, was 1.790 kgs and weight of 09 square shape pieces of charas with polythene was 2.190 kgs. He has further deposed that the total weight of recovered charas was 4.280 kilograms, out of the recovered charas, 03 gole of charas, 11 slides of charas and 01 square shape charas were taken out for samples. He has further deposed that the weight of 03 gole of sample charas was 60 grams, the weight of 11 slides of sample charas was 100 grams and the weight of 01 square shape sample charas was 250 grams. He has further deposed that all the samples were kept in three separate white colour plastic polythene and their separate pullandas were prepared which were marked as S-1, S-2 and S-3 and the remaining charas were kept in separate plastic polythene and their separate cloth pullandas were prepared which were given marked as A-1, A-2 and A-3 and The pullandas of samples and recovered charas were sealed by SI Dinesh Kumar with the seal of DK. FSL form was also filled up and seal of DK was also affixed on it and seal after use was handed over to ASI Jaivir. He has further deposed that the pullandas containing charas were taken into possession by SI Dinesh vide seizure memo 48 Ex.PW2/A and the bag was also taken into possession by SI Dinesh vide seizure memo Ex.PW2/B. He has further deposed that empty packets and plastic polythene were kept in a white cloth and pullanda was prepared. He has further deposed that the same was sealed with the seal of DK and it was marked as P-1 and same was taken into possession vide seizure memo Ex.PW2/C. He has further deposed that after that SI Dinesh had made rukka for registration of the case against the accused and handed over rukka to Ct. Amit alongwith all the sealed pullandas, copy of seizure memo and FSL Form and sent Ct. Amit to PS with direction to handover rukka to DO for registration of FIR and to produce pullandas, copy of seizure memo and FSL form before the SHO. He has further deposed that thereafter ASI Vijay came at the spot alongwith Ct. Amit and SI Dinesh handed over all the documents and accused to him. He has further deposed that thereafter, ASI Vijay had prepared site plan of the place of occurrence at the pointing out of SI Dinesh and ASI Vijay had also put details of FIR number on the seizure memos. After interrogation, accused Zaheer Khan was arrested by ASI Vijay vide arrest memo Ex.PW2/D and his personal search was also conducted by ASI Vijay vide memo Ex.PW2/E.
60. He has further deposed that on the personal search of the accused, notice u/s. 50 NDPS Act, one mobile phone make LAVA, one wrist watch of brown colour make Rado Quartz and one purse containing 5 ATM Card, one PAN card, one Aadhar Card, Rs.40/- alongwith some visiting cards were recovered and 49 his statement was recorded by ASI Vijay.
61. This witness has identified the case properties on production of the same by the MHC(M) Ex. P-1 to P-8.
62. This witness was cross-examined by the Ld. Counsel for the accused. During his cross-examination, this witness has deposed that while sharing secret information, SI Dinesh Kumar had not disclosed the name, parentage and address of present accused or about the age, height or physical description or nature and colour of wearing clothes of the suspect, however, SI Dinesh had disclosed that the suspect would bring contraband item in ladies bag as per secret information received by him. This witness has further deposed that SI Dinesh Kumar did not disclose about the quantity of contraband article, place from where the suspect would come or the place to which, he would go and he had also not disclosed about the previous involvement, if any, of the said suspect. This witness has further deposed that he had taken his position near the police booth and the distance between the place, where he had taken his position and said police booth was 2-3 steps. This witness has further deposed that SI Dinesh alongwith the secret informer was on the other side of the police booth and he does not know about the positions of ASI Jaiveer and Ct. Amit. This witness has denied the suggestion that no secret information was shared with him by SI Dinesh Kumar or that he had not joined the raiding party on that day or that the accused was not arrested in the manner, as stated by him or that nothing was recovered from the possession of the accused 50 as stated by him or that he had signed all the documents in the police station at the instance of the IO or that due to this reason, he had failed to answer about respective positions of ASI Jaiveer and Ct. Amit or that he had not signed any memo, because he never accompanied the raiding party or that he has deposed falsely being police official and at the instance of the IO.
63. SI Ravinder has been examined as PW-7, who has deposed that on dated 23.01.2018, he was posted as Sub Inspector at police station Seelampur, Delhi. He has deposed that on that day at about 1:00 PM, when he was present in the police station, one secret informer had met with SI Dinesh Kumar and he told him that one person would come with charas in huge quantity at about 2:00 / 2:15 PM at Brahmpuri Pullia, if raid is conducted, he may be apprehended with contraband. He has further deposed that after that SI Dinesh produced the secret informer before the SHO and after satisfying with the secret information, SHO had informed about the same to the senior police officials and directed SI Dinesh to form the raiding party and to conduct the raid. He has further deposed that thereafter, SHO had called him, SI Dinesh, SI Shahid Ali, ASI Jaivir and Ct. Amit in his office and organized a raiding party after briefing them about the contents of the secret information. He has further deposed that SI Dinesh made DD No. 11A, regarding the secret information and gave the copy of DD No. 11A to the SHO in compliance of Sec. 42 of the NDPS Act and at about 1:45 PM, after taking the IO kit by SI Dinesh and making departure entry vide DD No. 12A, they 51 left the police station and he (this witness) alongwith SI Shahid Ali reached at Brahmpuri Pullia, New Seelampur, Delhi, in his private car and other team members reached there on motorcycles. He has further deposed that SI Dinesh Kumar had conducted search of all the members of the raiding party, but, nothing was found from their search. Thereafter, SI Shahid Ali had conducted search of SI Dinesh Kumar, but, nothing was also found from his search. He has also deposed that SI Dinesh had asked 5-6 public persons to join the raiding party, after briefing them about the contents of the secret information, but, none of them had joined and they went away without telling their names and addresses and due to paucity of time, no notice was served upon those persons. He has further deposed that SI Dinesh briefed them and they took their respective positions near the Pullia and started waiting for arrival of suspect. He has further deposed that SI Ravinder alongwith SI Shahid Ali took position opposite ATM booth near the said pullia and deposed that at about 2:15 PM, on seeing a person coming at Brahmpuri Pullia from the side of Ghonda Chowk, secret informer had pointed out towards him. At that time, the said person was having a ladies bag of white colour in his right hand. He has further deposed that after arriving there, the said person stood at the corner of ATM of Axis Bank. He has further deposed that he was immediately apprehended by SI Dinesh with the help of Ct. Amit, after pointing out towards the said person, secret informer had left the spot. He has further deposed that on enquiry, the said person 52 revealed his name as Zaheer Khan S/o Ismail Khan and the accused was correctly identified by the witness in the court. He has further deposed that at that time, SI Dinesh again asked 5-6 public persons to join the proceedings, but, this time also no one agreed to join and they left from there without telling their names and addresses and after that SI Dinesh told the accused that he was having information that he was carrying charas with him, for which, his search was to be conducted and it was his legal right that he may be searched in the presence of any Gazetted Officer or Magistrate, for which, the Gazetted Officer or the Magistrate could be called at there and meaning of the Gazetted Officer and the Magistrate was explained to the accused. He has further deposed that SI Dinesh also told him that prior to his search, he could also conduct his search and at that time, SI Dinesh had served notice u/s. 50 of the NDPS Act to this accused and the contents of the notice were read over and explained to the accused and accused had also read the said notice. He has further deposed that accused had refused to avail his right to be searched in the presence of the Gazetted Officer or the Magistrate by saying that by doing so, he does not want to create more evidence against him and that he was having charas with him in the bag and accused also refused to conduct search of SI Dinesh and other members of the raiding team. He has further deposed that accused had put his signature on the copy of the notice in English and accused himself had written refusal on the copy of notice in his handwriting, on which, he had signed.
5364. He has further deposed that after that SI Dinesh Kumar had taken the bag from the right hand of the accused, which was checked and it contained 13 packets wrapped with yellow colour plastic tape and same were opened and checked and on smelling and physical appearance, same were found to be charas. He has further deposed that one of the packets contained 16 gole of charas kept in a transparent plastic polythene, 03 packets contained charas in form of various slides which were found wrapped with red colour plastic polythene and same were counted and found 180 slides of charas and the remaining 09 packets contained charas in form of square shapes and the recovered charas was weighed with the help of electronic weighing machine which was arranged from a nearby shopkeeper. He has further deposed that the weight of 16 gole of charas, after removing polythene, was 300 grams and the weight of 180 slides, after removing polythene, was 1.790 kgs and weight of 09 square shape pieces of charas with polythene was 2.190 kgs. He has further deposed that the total weight of recovered charas was 4.280 kilograms, out of the recovered charas, 03 gole of charas, 11 slides of charas and 01 square shape charas were taken out for samples. He has further deposed that the weight of 03 gole of sample charas was 60 grams, the weight of 11 slides of sample charas was 100 grams and the weight of 01 square shape sample charas was 250 grams. He has further deposed that all the samples were kept in three separate white colour plastic polythene and their separate pullandas were 54 prepared which were marked as S-1, S-2 and S-3 and the remaining charas were kept in separate plastic polythene and their separate cloth pullandas were prepared which were given marked as A-1, A-2 and A-3 and The pullandas of samples and recovered charas were sealed by SI Dinesh Kumar with the seal of DK. FSL form was also filled up and seal of DK was also affixed on it and seal after use was handed over to ASI Jaivir. He has further deposed that the pullandas containing charas were taken into possession by SI Dinesh, vide seizure memo Ex.PW2/A and the bag was also taken into possession by SI Dinesh vide seizure memo Ex.PW2/B. He has further deposed that empty packets and plastic polythene were kept in a white cloth and pullanda was prepared. He has further deposed that the same was sealed with the seal of DK and it was marked as P-1 and same was taken into possession vide seizure memo Ex.PW2/C. He has further deposed that after that SI Dinesh had made rukka for registration of the case against the accused and handed over rukka to Ct. Amit alongwith all the sealed pullandas, copy of seizure memo and FSL Form and sent Ct. Amit to PS with direction to handover rukka to DO for registration of FIR and to produce pullandas, copy of seizure memo and FSL form before the SHO. He has further deposed that thereafter ASI Vijay came at the spot alongwith Ct. Amit and SI Dinesh handed over all the documents and accused to him. He has further deposed that thereafter, ASI Vijay had prepared site plan of the place of occurrence at the pointing out of SI Dinesh and ASI Vijay had 55 also put details of FIR number on the seizure memos and accused Zaheer Khan was interrogated by ASI Vijay.
65. This witness has identified the case property on production of the same by the MHC(M) Ex. P-1 to P-8.
66. This witness was cross-examined by Ld. counsel for the accused and during his cross-examination, he has deposed that while sharing secret information, SI Dinesh had not disclosed the name, parentage, address of the accused, about age, height or physical description or nature and colour of wearing clothes of the suspect. He has also deposed that SI Dinesh Kumar did not disclose about the quantity of the contraband, place from where the suspect would come or the place to which the suspect would go. He has also deposed that he had not disclosed about the previous involvement if any, of the said suspect. He further deposed that SI Dinehs and Ct. Amit along with secret informer had taken their positions near the police booth. The distance between the place, where he had taken the position and the said police booth was 5-7 yards and all the members of the raiding team were visible to each other.
67. He has denied that no secret information was shared with him by SI Dinesh Kumar or that he had not joined the raiding party on that day or that the accused was not arrested in the manner as stated by him or that nothing was recovered from the possession of this accused as stated by him or that because he never accompanied the raiding party that is why his signature are not appearing on the memos or that he has deposed falsely being 56 police official at the instance of the IO.
68. ASI Vijay Kumar has been examined as PW-8, who has deposed that on dated 23.01.2018, he was posted as ASI at PS Seelampur, Delhi and on that day at about 6:00 pm, when he was present in the Police Station, Duty Officer ASI Satish gave him computerized copy of FIR and original rukka of this case and informed that investigation of the present case was marked to him, after registration of the FIR. He has further deposed that after that he alongwith Ct. Amit reached at Brahmpuri Pullia, where SI Dinesh, SI Ravinder, SI Shahid Ali, ASI Jaiveer and accused Zaheer Khan, were already present and SI Dinesh apprised him about the facts of the present case and also told him that 4.280 kg charas was recovered from the accused and SI Dinesh gave him seizure memos and also produced accused before him. He has further deposed that after that he prepared site plan at the instance of SI Dinesh, Ex.PW8/A, bearing his signature at point A and he recorded statement of SI Dinesh, SI Ravinder and they were discharged and he recorded statement of SI Shahid Ali and ASI Jaiveer. He has further deposed that after that he informed accused Zaheer Khan vide notice u/s. 52 NDPS Act about his arrest which is Ex.PW2/G, bearing his signature at point B and signature of accused at point C. Accused was arrested vide arrest memo Ex.PW2/D, bearing his signature at point B and signature of accused at point C. Personal search of accused was also conducted vide personal search memo Ex.PW2/E, bearing his signature at point B and that of accused 57 at point C. During personal search of the accused, notice u/s. 50 NDPS Act, one mobile phone make LAVA of red colour, one wrist watch make Rado Quartz of brown colour, one raxin purse containing one PAN Card, 5 ATM cards, one Aadhar Card, Rs.40/- cash and some visiting cards were recovered. He has further deposed that on interrogation, accused made disclosure statement Ex.PW2/F, which was recorded by him, bearing his signature at point B and signature of accused at point C. After that accused was taken to JPC hospital for his medical examination and thereafter, they all brought accused to the PS, where personal search articles of accused were got deposited with MHC(M) and accused was put in the lock up. He has further deposed that thereafter, he had recorded statements of Ct. Amit, MHC(M) and SHO Insp. Satish Kumar u/s 161 Cr.PC and he also prepared report u/s. 57 NDPS Act regarding arrest of accused Zaheer Khan, which is Ex.PW5/D, bearing his signature at point B and produced the same before the SHO who forwarded the same to ACP/Seelampur. Information about arrest of accused was given to his son namely Nazim Abbas, vide written notice Ex.PW8/B, bearing his signature at point A.
69. He has further deposed that on dated 24.01.2018, accused was produced before the concerned court and as per order of concerned court, two days PC remand of the accused was obtained and during PC remand, accused took him, Ct. Amit and SI Ravinder to Village Chumsa, District Shamli, UP, in search of source of supplier of charas, but, he could not be found there. He 58 has further deposed that after that they returned Delhi and on dated 26.01.2018, accused was produced before the concerned court and was sent to JC, as per order of the concerned court.
70. He has further deposed that on dated 06.02.2018, the exhibits of this case were sent to FSL, Rohini through ASI Lal Dev and on the same day, he recorded statement of ASI Lal Dev and MHC(M) HC Rambir and during investigation, result FSL Ex.PW3/A, was got collected and placed on record. He has further deposed that after completion of the investigation, he prepared the chargesheet and filed in the concerned court.
71. This witness was cross-examined by learned counsel for the accused. During his cross-examination, he had deposed that on dated 24.01.2018, he started from Police Station Seelampur for Shamli at about 8:00 am and he had lodged departure entry in DD register in this regard, but, he does not remember the DD entry number. He has further deposed that they had gone to Shamli in a private vehicle, but, he could not tell its registration number, name of the driver and its make and it took about 2 ½ - 3 hours in reaching Shamli and he had not noted down the meter reading of the said private vehicle. He has further deposed that he took permission from the ACP to go to Shamli in the evening of 24.01.2018 and they had gone to Shamli on 25.01.2018 and they had lodged their arrival entry in the local police station of District Shamli,but, he does not remember the name of said PS and the number of said arrival entry. He has further deposed that Sarpanch of village Chumsa was not present there on that day 59 and he had recorded statements of two villagers,but, he does not remember their names. This witness had denied the suggestion that he had not visited village Chumsa, District Shamli or that no disclosure statement was made by the accused. He has further deposed that he does not know,as to how much money was paid to the driver of the said private vehicle and he has voluntarily submitted that the said vehicle was engaged by SI Ravinder and he does not know as to how much money was claimed by SI Ravinder for the said vehicle.
72. He has further deposed that the MHC(M) of PS Seelampur had sent the case property to FSL, on his direction and during course of investigation, he had seen the relevant entries in register no. 19 and 21 and he had never seen the case property of the present case. He has further deposed that he had mentioned in the statement u/s. 161 CrPC of ASI Lal Dev that seal of DK and SK were affixed on the pullanda.
73. He has further deposed that Ct. Amit met him at 6:00 pm on 23.01.2018 in the PS and they went to the spot on foot and it took about 10 minutes to reach at Brahmpuri Pullia and the distance between the PS and Brahmpuri Pullia is about 200-250 meters. He has further deposed that all the members of the raiding left the spot on foot, after completion of the investigation at the spot and no police official was present in the police booth situated at Brahmpuri Pullia and there is a govt. school situated within 50 meters from Brahmpuri Pullia. He has further deposed that he did not visit the said govt. school to procure the presence 60 of public witness and there is Delhi Jal Board Pump House near the spot and there is govt. school in Seelampur area and he did not ask any govt. employee to become a witness from the above said govt. offices and he voluntarily submitted that he did not try to procure presence of any govt. employee as recovery was not effected in my presence. This witness has denied the suggestion that since no investigation was taken up by him therefore, he did not try to procure the presence of any govt. employee.
74. He has further deposed that he had obtained the signature of SI Dinesh on the site plan and SI Dinesh told him from which direction, accused came at the place of apprehension, but, he had not shown the said direction in the site plan. SI Dinesh had not told him the location of the members of raiding team, where the accused was apprehended. He has admitted it to be correct that as per site plan, the ATM of Axis Bank is one shop after the nala road and he had not checked the CCTV footage of ATM of Axis Bank. All the documents relating to his investigation and statements of witnesses were recorded by him in his own handwriting. No railway or roadways ticket was found in the pocket of accused, during his personal search and this witness alongwith Ct. Amit and accused Zaheer Khan had finally left the spot at about 10:15/10:20 pm and he had done all the writing work while sitting on a bench lying outside police booth at Brahmpuri Pullia and there was an electric pole near said bench. He has admitted it to be correct that no such electric pole is shown present there in the rough site plan Ex.PW8/A and he did 61 not mention the entire details of the proceedings conducted by him in his report u/s. 57 NDPS Act Ex.PW5/D as same was not required. SI Dinesh was found having IO bag with him at the time, when, he had reached the spot after registration of the FIR. He has denied the suggestion that he had not conducted the investigation in fair or proper manner or that accused was falsely implicated in this case in connivance with SI Dinesh Kumar and other police officers of PS Seelampur or that he has deposed falsely being IO of the case.
75. SI Dinesh Kumar has been examined as PW-9, who has deposed that on dated 23.01.2018, he was posted as SI at PS Seelampur, Delhi and on that day at about 1:00 pm, when, he was present in the PS, one secret informer came to him and informed him that one person would come with charas at about 2:00/2:15 pm at Brahmpuri Pullia from the side of Ghonda Chowk and that if raid is conducted, he could be apprehended alongwith the contraband. This witness has further deposed that he had produced the secret informer before the SHO Insp. Satish Kumar who satisfied himself about the information, after making enquiries from the informer and SHO had informed ACP Seelampur about the said information and thereafter, directed him to constitute a raiding team and to take necessary action. This witness has further deposed that thereafter, as per directions of the SHO, he called SI Ravinder, SI Shahid Ali, ASI Jaiveer and Ct. Amit. SHO briefed all of them and he reduced the said information in roznamcha register, vide DD No. 11A Ex.PW9/A 62 and he had produced copy of DD No. 11A before Insp. Satish Kumar for compliance of Sec. 42 NDPS Act.
76. This witness has further deposed that after that, after collecting IO kit, he alongwith other members of the raiding team and secret informer left the PS, after making departure entry in the roznamcha register, vide DD No. 12A, Ex.PW9/B which is in his handwriting and thereafter, he alongwith Ct. Amit reached at Brahmpuri Pullia, Chauhan Bangar, Seelampur on one motorcycle and SI Ravinder and SI Shahid Ali reached there on an other motorcycle and ASI Jaiveer and secret informer came to the spot on their separate motorcycles. He has further deposed that after reaching at that place, he had briefed all the members of the raiding team and also took their search, during which no objectionable item was recovered from any members of the raiding team and SI Shahid Ali had taken his search. He has further deposed that all members of raiding team took positions at different places near the Brahmpuri Pullia and the secret informer also took position near ATM booth of Axis Bank.
77. He has further deposed that at about 2:15 pm, one person was seen coming from the side of Ghonda Chowk, who was carrying one bag having stripes on his right shoulder. Secret informer pointed towards the said person and thereafter, secret informer had left from there. He has further deposed that he gave signal to the members of the raiding team and thereafter, they all apprehended that person. He has further deposed that on enquiry being made, he had disclosed his name as Zaheer Khan and he 63 informed the accused that they were having information with them that he was having charas in his possession and that for this reason, his search is required to be taken and he also informed the accused that he could take the search of members of the raiding team before his search was conducted. He has further deposed that he had also apprised the accused that he could get his search conducted before any Gazetted Officer or Magistrate and Notice u/s. 50 of the NDPS Act in this regard was prepared and original notice was served to the accused and accused refused to get himself searched before any Gazetted Officer or Magistrate and accused wrote his refusal on the carbon copy of said notice( Ex.PW2/H). He has further deposed that the undertaking given by accused regarding receipt of notice is at portion X on Ex.PW2/H, bearing his signature at point Y and the refusal written by the accused in his handwriting is Ex.PW9/A, bearing his signature at point C and that of accused at point D.
78. He has further deposed that thereafter, he had checked the bag and it was found containing 13 packets which were found wrapped with yellow colour tape and the said packets were opened and checked. He has further deposed that on physical appearance and smelling, same was found to be charas and one packet was found containing 16 gole of charas, each kept in separate transparent plastic polythene. He has further deposed that three packets were found containing slides of charas which were found wrapped in red colour polythene and on counting, they were found to be 180 slides in total and the remaining 9 64 packets were found containing charas in square shapes.
79. He has further deposed that he had sent Ct. Amit to procure weighing machine from market and Ct. Amit brought an electric weighing machine and on weighing, the weight of 16 gole of charas came out to be 300 grams. He has further deposed that the weight of 180 slides of charas came out to be 1.790 kgs and the weight of square shapes charas came out to be 2.190 kilograms.
80. He has further deposed that three gole of charas, 11 slides and one square shape charas were taken out from the recovered charas as samples and they were weighed separately and the weight of 3 gole of charas was 60 grams, the weight of 11 slides was 100 grams and weight of one square shape charas was 250 grams. He has further deposed that all the three samples were put in separate plastic polythene and converted into three separate cloth pullandas and they were given mark S-1, S-2 and S-3 respectively and the remaining charas was put into separate plastic polythene and converted into three separate cloth pullandas and were given mark A-1, A-2 and A-3 respectively. He has further deposed that the yellow colour tape and plastic polythene, out of which the contraband was recovered, converted into cloth pullandas and same was given mark P-1. He has further deposed that the sample pullandas S-1, S-2 and S-3 and the pullandas A-1, A-2 and A-3 were sealed by him with the seal of DK and taken into possession vide, seizure memo (Ex.PW2/A). The pullanda containing empty packets mark P-1 65 was sealed by him with the seal of DK and taken into possession vide, seizure memo Ex.PW2/C, bearing his signature at point C and that of accused at point D and the bag (thaila) out of which the contraband was taken out was also seized by him, vide seizure memo Ex.PW2/B, bearing his signature at point C and that of accused at point D.
81. He has further deposed that when the raiding team reached at Brahmpuri Pullia, he requested 5-6 passersby to join the raiding team, however, none agreed and went away without disclosing their names and addresses and after apprehension of the accused, he again requested 4-5 passersby to join the proceedings, but, they refused for the same and left away from there without disclosing their names and addresses.
82. He has further deposed that FSL form was filled by him and he put seal impression of DK on the said FSL form and seal after use was handed over to ASI Jaiveer and after that he had prepared rukka Ex.PW9/C and he had handed over the rukka, sealed pullandas, original seizure memos and FSL form to Ct. Amit with directions to hand over rukka to Duty Officer and to produce sealed pullandas alongwith documents before the SHO. He has further deposed that at about 5:00 pm, Ct. Amit left the spot alongwith aforesaid sealed pullandas and rukka to PS.
83. He has further deposed that at about 6:15 pm, Ct. Amit alongwith ASI Vijay came at the spot and he produced accused before ASI Vijay and also handed over the carbon copies of seizure memos and carbon copy of notice u/s. 50 NDPS Act and 66 ASI Vijay inspected the site and prepared site plan Ex.PW8/A at his instance, and ASI Vijay recorded his statement u/s. 161 CrPC and thereafter, he returned to the PS. He has further deposed that on the same day, he prepared report u/s. 57 NDPS Act Ex.PW5/C regarding recovery of charas from the possession of accused and at about 10:30 pm, ASI Jaiveer return to PS and at that time, he handed him over his seal. This witness has correctly identified the case properties in the court as Ex. P-1 to Ex. P-8.
84. This witness was cross examined by Ld. Addl. PP for the State as he partly resiled from his previous statement made before the IO. During his cross-examination, this witness had admitted it to be correctly that he had handed over carbon copies of seizure memos to Ct. Amit alongwith the rukka and not the original seizure memos and that while giving his chief- examination and he got confused and inadvertently stated that he had given original seizure memos to Ct. Amit alongwith the rukka.
85. This witness was also cross-examined by Ld. Counsel for the accused, and during his cross-examination he has stated that he does not remember the number of seal impressions put by him on the cloth parcels, however, the tape were not covered on the seal impressions by him and he does not know who had covered the seal impressions on the cloth pullanda. He has further deposed that the stitching work of the pullanda was done at the spot by him and the portion encircled with writing at point X on cloth piece Ex.PW9/Article-2, is written by him in his 67 handwriting, however, he could not tell if the portion at point Y on cloth piece Ex.PW9/Article-2, is in the handwriting of the SHO or not. He has further deposed that he had written portion X on Ex.PW9/Article-2, after the said pullanda was stitched. He has denied the suggestion that cloth piece Ex.PW9/Article-2 was not in sealed condition at the time, when the relevant particulars appearing at portion encircled at point Y, were mentioned on it or that is why, part of said portion at point Y is coming in between stitches of thread in the said cloth piece or that it shows that tempering was done with the contents of said cloth pullanda, before finally stitching it.
86. He has further deposed that report u/s. 57 NDPS Act Ex.PW5/C was prepared by him in the PS at about 9:30 pm and it took him about 5-7 minutes in preparing the same and he had mentioned all the proceedings regarding recovery in the said report.
87. He has further deposed that secret informer had not disclosed name, parentage and address of suspect to him in the PS and physical description of accused, name of source of supply of contraband, nature and colour of clothes worn by him, were also not told to him by the secret informer and secret informer had not told him the quantity of contraband to be brought by the suspect, name of the person to whom the contraband was to be supplied was also not told. It was also not told that in which article/bag, etc. the said contraband would be brought by the suspect. He has further deposed that SHO had briefed the 68 members of the raiding team about the secret information in the PS and he himself had not disclosed the contents of secret information to the raiding team.
88. He has further deposed that IO bag was provided to them from office and he got the said bag issued from malkhana on that day and he does not remember, if any, entry in this regard was made in malkhana register or not. He has further deposed that the IO bag issued to him was made of cloth and was about 1.5x1.5 feet of size and all the papers used by him in this case were taken out from the rim contained in the said bag and in DD No. 12A, he had mentioned that he was taking IO bag with him during raid. He has further deposed that he had reached at the spot at about 2:00 pm and had told ASI Vijay Kumar the direction from which accused came at the place of apprehension, however, he had not told him the place where members of raiding team had taken position. He has further deposed that he had signed the said site plan, however, he does not remember if, ASI Vijay had shown the direction, from which, accused came at the spot, in the site plan or not.
89. He has further deposed that he alongwith Ct. Amit had taken position near the ATM of Axis Bank, ASI Jaiveer was standing in their opposite side in the corner of shop, towards Gautampuri side and he does not know whether there is Medical Gas shop at the corner of Gautampuri side. He has further deposed that SI Shahid Ali was standing towards Seelampur jhuggies and SI Ravinder was standing towards Seelampur side 69 and there is a govt. school near the place where ASI Jaiveer was standing, but, he does not know whether the said school runs in two shifts. He has further deposed that the main gate of JPC hospital is at a distance of about 500-600 meters from the place, where accused was apprehended and there is a Delhi Jal Board Pump House towards Seelampur side and opposite to that there is another govt. school and he does not remember the day of week on 23.01.2018. He has further deposed that he had not called any govt. employee from the above said govt. schools and offices to join the proceedings, before or after apprehension of the accused and he had not requested SHO/ACP to join proceedings, before or after apprehension of the accused. He has further deposed that they had parked their motorcycles near the police booth towards Seelampur side and the informer pointed towards the accused from a distance of about 10-15 meter and some public persons were passing through that place at that time. This witness has admitted it to be correct that there are shops on both sides of the road. He has further deposed that they were in uniform.
90. He has further deposed that he with the help of Ct. Amit apprehended the accused firstly and he had offered the accused to take search of his IO bag before his search is conducted, however, this fact was not mentioned in the notice u/s. 50 NDPS Act and he had mentioned in the said notice that accused was having legal right to get himself searched before any Gazetted Officer. He has further deposed that however, he had not mentioned in the said notice that they had offered search of their 70 vehicles to the accused and no memo regarding mutual search of team members was prepared by him. He has further deposed that he had requested 1-2 shopkeepers to join the proceedings,but, they went away after closing their shops and no written notice was given to those shopkeepers and public persons, who refused to join the proceedings and he had not recorded the reasons assigned by those public persons and by their physical appearance and wearing clothes.
91. He has further deposed that the electric weighing scale was arranged by Ct. Amit,but, he could not tell from where, he had brought the same and he does not remember the make and colour of said electric weighing scale and even he could not tell the minimum and maximum capacity of said weighing scale. He has further deposed that he had asked Ct. Amit to call the person from whom the said electric weighing scale was brought, however that person refused to join the said proceedings by saying that he does not want to involve his name in court proceedings and he had mentioned this fact in the rukka. He has further deposed that he does not remember the number of seal impressions put by him on each pullanda and he had prepared the pullanda beside the police booth and one carbon copy of each memo was prepared and no separate memo regarding handing over the seal to Ct. Jaiveer was prepared by him and the factum of weighing of contraband, apprehension of accused and preparation of pullandas were not mentioned in seizure memo. He has further deposed that it took him about 25-30 minutes in 71 preparing the rukka and he had not prepared any carbon copy of the rukka. He has further deposed that he does not remember if accused wrote in his reply Ex.PW9/A that he does not want to take search of raiding team members, vehicles and IO bag or not.
92. He has further deposed that he had prepared only one copy of FSL form and it was a typed proforma in two sheets and he does not remember if, the said FSL proforma was having serial numbers or not and he had put his seal impression on the second page of that proforma and he had not filled up the FSL form and he had put his signature on the second page. He has further deposed that his personal laptop was already lying in the police booth and he was not having the key of the police booth and nobody was present in the said police booth when the raiding team reached there. He has further deposed that the police booth was not locked at that time and his laptop was lying in the police booth for last about 2-3 days prior to 23.01.2018 and printer was also lying there. He has further deposed that there is an electricity connection in the police booth,but, he does not know whether there is any electricity meter in the said booth. He has denied the suggestion that he has deposed falsely in this regard. He has further deposed that he has not done any computer course, but, he knows typing and he can handle the computer and can take the print in a typed proforma after filling up the relevant information and his statement was recorded at the spot by ASI Vijay Kumar in his own handwriting and immediately after giving his statement, he had left the spot and he does not know 72 whether the statements of other witnesses were recorded at the spot or in the PS and ASI Vijay had reached at the spot at about 6:15 pm on his motorcycle.
93. This witness has denied that no secret information was received by him or that no raid was conducted by them or that accused was not apprehended in the manner, as stated by him in his chief examination or that nothing was recovered from the possession of the accused. This witness has denied that he had prepared all the documents in the PS and got the same signed by the witnesses being fellow police officers or that accused has been falsely implicated in the present case or that no notice u/s. 50 NDPS Act was given to the accused or that the search of members of raiding team was not offered to the accused or that despite availability, no Magistrate or Gazetted Officer or Govt. Officer was associated with the investigation or that he has not conducted the investigation of the present case in a fair manner. The witness has denied that he has deposed falsely being IO of the case.
94. Sh. Satish Kumar has been examined as PW10, who has deposed that on dated 23.01.2018, he was posted as SHO at PS Seelampur, Delhi and on that day at about 1:00/1:15 pm, while he was present in his office, SI Dinesh Kumar produced one secret informer and he made enquiries from the secret informer upon which, secret informer told him that at 2:00/2:15 pm, one person would come at Brahmpuri Pullia with huge quantity of charas and if raid is conducted, he could be apprehended 73 alongwith the charas. This witness has further deposed that he telephonically informed to the ACP Seelampur,who directed to take necessary action and after that he called SI Ravinder, SI Shahid Ali, ASI Jaiveer and Ct. Amit and briefed them about the information received from the secret informer. This witness has further deposed that thereafter, he directed SI Dinesh to constitute a raiding team and to take necessary legal action and SI Dinesh reduced the said information into writing vide DD No. 11A and the raiding team left for the spot.
95. This witness has further deposed that on the same day, at about 5:30/6:00 pm, Ct. Amit came to his office and produced seven sealed pullandas sealed with the seal of DK alongwith form FSL bearing seal impressions of DK, three carbon copies of seizure memos and one bag of brown colour On all the seizure memos, pullandas and form FSL, DD No.12A u/s. 20 NDPS Act dt. 23.01.2018 PS Seelampur, was already mentioned. This witness has further deposed that he called the Duty Officer, who had shown him computerized copy of FIR and thereafter he mentioned FIR number on all the pullandas, form FSL and carbon copies of seizure memos. This witness has further deposed that he had put his seal of SK on all the sealed pullandas and form FSL and also signed them and after that he called MHC(M) in his office and handed over the pullandas, form FSL, bag and carbon copies of seizure memos to him, who made relevant entries in register no. 19 and he signed the same and he made DD No. 15A in roznamcha register in this regard.
7496. This witness has further deposed that on the same day, SI Dinesh Kumar had produced report u/s. 57 NDPS Act regarding recovery of charas, which is already Ex.PW5/C and ASI Vijay Kumar had given report u/s. 57 NDPS Act, regarding arrest of accused Ex.PW5/D and he forwarded both these reports to ACP Seelampur vide my endorsement and signatures made at points C on Ex.PW5/C and Ex.PW5/D respectively. This witness has further deposed that his statement was recorded by ASI Vijay in this regard, in the evening of 23.01.2018.
97. This witness has further deposed that attested copy of DD No. 15A dt. 23.01.2018 Ex.PW10/A which was made by him in the roznamcha register regarding deposit of case property with MHC(M).
98. This witness was cross-examined by Ld. Counsel for the accused and during his cross-examination he has deposed that SI Dinesh had not requested him or ACP Seelampur to join the raiding party and he had lodged DD No. 15A after depositing of case property with MHC(M). This witness has further deposed that secret informer had not disclosed the name, parentage, residential address, physical description, nature of clothes worn by him and his antecedents of the suspect and the secret informer had not disclosed the exact quantity and the source of contraband or name of the person to whom the suspect likely to supply the contraband. This witness has further deposed that he further mentioned the particulars of this case i.e. FIR Number, u/s. and PS on the seizure memos and pullandas. This witness has further 75 deposed that the MHC(M) had put tape on the seal impressions on the pullandas. (Vol. MHC(M) had not put the tape on the seal impressions in his presence) and he has further deposed that he had received form FSL in an open condition. This witness has further deposed that he does not remember the number of pages of FSL form and it was a typed proforma,but, he cannot tell the number of columns contained therein and he mentioned that he had only put FIR number in form FSL and also signed the same. SI Dinesh had put his seal impression on the last page of form FSL. This witness has further deposed that he do not remember whether the form FSL was typed back to back or not and he had gone through the contents of report u/s. 57 NDPS Act prepared by SI Dinesh. This witness has further deposed that SI Dinesh had produced the said report after sun set,but, he cannot tell the exact time and it is also deposed that details of proceedings conducted by SI Dinesh were not mentioned in that report. (Vol. It is not required as report u/s. 57 NDPS Act was prepared only with regard to recovery of contraband). This witness has further deposed that he mentioned that he cannot tell the exact time of recording his statement by ASI Vijay Kumar however, it was recorded in the late evening hours.
99. This witness has further deposed that in register no. 19, his seal impressions on the pullandas, is not mentioned. He does not remember whether ASI Vijay Kumar had obtained permission for outstation through him or not. He has further deposed that he does not remember, if any amount was claimed by ASI Vijay 76 Kumar for going outstation in search of the source of supply of contraband or not. It is admitted that SI Dinesh Kumar or ASI Vijay had not requested him to join the investigation. The witness has denied that no secret information was passed on to him by SI Dinesh Kumar nor any raid was conducted or that nothing was recovered from the possession of the accused or that all the proceedings were conducted in the PS. The witness has denied that he was deposing falsely being the police officer.
100. HC Rambir has been examined as PW11 who has deposed that on dated 23.01.2018, he was working as MHC(M) at PS Seelampur, Delhi and on that day, Insp. Satish Kumar had called him in room with register no. 19 and handed him over 07 sealed pullandas duly sealed with the seal of DK and SK and one brown colour bag which were deposited by him in malkhana, vide entry made at srl. no. 3768 in register no. 19.
101. This witness has further deposed that on the same day, ASI Vijay deposited personal search articles of accused Zaheer Khan including notice u/s. 50 NDPS Act with him in the Malkhana vide entry made at srl. No 3769 in register no. 19.
102. This witness has further deposed that on dated 06.02.2018, he handed over three cloth pullandas sealed with the seal of DK and SK to ASI Lal Dev, vide RC No. 38/21/18 for depositing the same at FSL, Rohini and after depositing the case property at FSL, ASI Lal Dev brought back the acknowledgement receipt and received copy of RC and handed over the same to him.
103. This witness has further deposed that register no. 19 77 containing entries no. 3768 and 3769 Ex.PW11/A (OSR), bearing official seal and signature of SHO Insp. Satish Kumar at point A. This witness has further deposed that copy of RC No. 38/21/17 is exhibited Ex.PW11/B (OSR), bearing his signature at point A and that of ASI Lal Dev at point B. The copy of acknowledgement receipt dt. 06.02.2018 is exhibited Ex.PW11/C (OSR), bearing signature of ASI Lal Dev at point A.
104. This witness was cross-examined by the ld. Counsel for the accused and during his cross-examination, he has deposed that he does not remember the exact time, when, SHO had deposited the case property in the malkhana. It took about 20-25 minutes in making entry in register no. 19. It further deposed that the description of seal of SK is not mentioned in register no. 19 and the entry is verbatim of seizure memo. He has addmitted it to be correct that it is not mentioned in register no. 19 that form FSL was deposited alongwith the pullanda by the SHO. He further deposed that he had not put the tape on the seal impression affixed on the cloth pullanda. He has deposed that he does not remember whether he had received the original or carbon copy of seizure memos. During the course of making entry in register no. 19, Duty Officer had not visited the place where he had made the entries. He has further deposed that he does not remember the time, when, the personal search articles were deposited in the malkhana. He has deposed that he does not remember the time gape between the said two entries made in register no. 19. He further deposed that he had not obtained the 78 signature of ASI Lal Dev in register no. 19, at the time of handing over the case property to him on 06.02.2018. This witness has deposed that in register no. 19 he had not mentioned that alongwith the three sealed pullandas, he had also sent form FSL for depositing the case property in FSL, Rohini. This witness has also deposed that he had not mentioned in register no. 21 that alongwith the case property, any memo or form FSL was sent to FSL, Rohini. The witness has denied that all the entries are ante dated and ante timed or that same are lodged in connivance with the IO. This witness has denied that the case property was tempered with or that he has deposed falsely at the instance of the IO.
105. Since, in the case in hand, it is alleged by the prosecution that the secret information was received by SI Dinesh that accused would bring huge quantity of charas at Brahmpuri Pullia, Delhi and on receiving the of same information, the raiding team was constituted and members of the raiding team are alleged to have taken position at the place of alleged apprehension of the accused and it is also the case of the prosecution that at about 2:15 PM, the accused had arrived at Brahmpuri Pullia, he was carrying a heavy ladies bag of brown- white colour and he was also given notice u/s. 50 of the NDPS Act Ex.PW2/G, vide which, he was alleged to have apprised about his legal rights to be search before the Gazetted Officer or the Magistrate and the accused is alleged to have refused to be searched in the presence of the Gazetted Officer or the 79 Magistrate, vide refusal Ex.PW9/A. Ld. Counsel for the accused has submitted that accused has been falsely implicated in the present case and the case property has been planted on him and the police had written the refusal Ex.PW9/A and obtained the signature and also submitted that if the said refusal is looked into then the terminology used therein itself reveals that the same refusal is prepared after alleged recovery of the contraband. This court also perused the terminology of the refusal Ex.PW9/A, which is as under: "MAI APNI TALASI KISI MAGISTRATE YA RAJPATRIT ADHIKARI SE NAHI KARANA CHAHTA HUN, MERE PASS THAILE ME RAKHHI CHARAS KE ALAWA KOI CHARAS NAHI HAI, JO MERE PASS THI, WO POLICE NE PAKAD LI HAI".
106. Thus, from the abovesaid refusal, it may be inferred that such alleged refusal was reduced into writing, after alleged recovery thereof.
107. But, as, the charas is alleged to have been recovered from the alleged thaila in the hand of the accused and not from the personal search of the accused. So, serving of the notices u/s. 50 of the NDPS Act was not essential and even if, any doubt is there in the serving of the notices under section 50 of the NDPS Act, the same are inconsequential.
108. As their lordship of High court of Delhi in case Custom Vs. Jorawar Singh Mundy MANU/DE/0290/13 was pleased to hold that "as regard compliance of Section 50 of NDSP Act, legal position is well settled as laid down in Ajmer Singh (SUPRA) 80 that in case, the recovery is not from the personal search, but from the baggage, non compliance of Section 50 would not vitiate the trial as the search of the bag does not amount to personal search, so as to attract Section 50 of the NDPS Act"
109. Since, in the case in hand, PW-9 has deposed in his examination-in-chief, the seal after use was given to ASI Jaivir and ASI Jaivir has been examined as PW-4 and this witness, during his cross-examination had deposed that he had returned the seal to SI Dinesh on the same day at about 9:30/10:00 PM and if the testimony of PW-11 HC Ramvir, MHC(M) is looked into then, he had handed over the pullandas of the parcels to ASI Lal Dev on dated 06.02.2018, vide RC No. 38/21/18 for depositing the same at FSL, Rohini. Thus, even till the sending of the samples of the contraband to the FSL, Rohini, the seal was not retained by this PW-4 with him.
110. As their lordship of Hon'ble High Court of Punjab & Haryana in case Ramji Singh Vs. State of Haryana Crl. Appeal No. 1042-SB of 2002 was pleased to hold that "It is well settled that till the case property is not dispatched to the forensic science laboratory, the seal should not be available to the prosecuting agency and in the absence of such a safeguard the possibility of seal, contraband and the samples being tampered with cannot be ruled out. In the present case, the seal of Investigating 81 Officer-Hoshiar Singh bearing impression 'HS' was available with Maha Singh, a junior police official and that of Deputy Superintendent of Police remained with Deputy Superintendent of Police himself. Therefore, the possibility of tampering with seals as well as seized contraband and samples cannot be ruled out.
111. Since, in the case in hand, SI Dinesh is alleged to have given the seal to ASI Jaivir and on the same day, ASI Jaivir has admitted to have returned the same to SI Dinesh, so, in the light of the law laid down by the Hon'ble High Court of Punjab & Haryana, in the abovesaid judgment, the possibility of tempering with the seal as well as seized contraband and samples, cannot be ruled out.
112. And if, the copy of the Road Certificate Ex.PW11/B is looked into, then it is clear that it is no where mentioned therein that FSL form was also sent to the FSL on dated 06.02.2018 with the parcels of the samples to the FSL. Had the FSL form been sent to the FSL, Rohini along-with the parcels of the samples of the contraband, then, it could be mentioned in the Road Certificate Ex.PW11/B. Similarly, this court has also perused the copy of register no. 19 Ex.PW11/A, which reveals that the parcels of the case property were deposited in the malkhana, but, alongwith the parcels of the contraband. It is no where mentioned therein that the FSL form was also deposited and similarly, if the 82 testimony of PW-3 Dr. Subhash Chandra is looked into, he had also deposed in the court that he had received three sealed parcels on dated 06.02.2018. He had no where stated in his testimony recorded in the court that he had also received the form of FSL. Thus, the deposit of the FSL form in the malkhana on dated 23.01.2018 and also sending of the FSL form in the FSL, Rohini on dated 06.02.2018, becomes suspicious and the possibility of subsequently filling of FSL form cannot be ruled out, so, the case of the prosecution becomes doubtful. In view of contradictions in the testimonies of PW2 Ct. Amit and PW-9 SI Dinesh. Their testimonies are held to be doubtful.
113. Since, PW-9 SI Dinesh has deposed that the FSL form was deposited in the malkhana on dated 23.01.2018. PW-2 Ct. Amit has deposed that SI Dinesh had prepared Rukka for registration of the case, against the accused and handed over the Rukka to him alongwith all the sealed pullandas, seizure memo and FSL form and sent him to the police station with the direction to hand over the Rukka to the Duty Officer for registration of the case and to produce the pullandas, seizure memo and FSL form to the SHO. He has also deposed that he had handed over the Rukka to the Duty Officer for registration of the case and produced the pullandas, seizure memo and FSL form before the SHO. He has also deposed that after registration of the case, further investigation was marked to ASI Vijay Kumar and after taking copy of FIR, he alongwith ASI Vijay Kumar left the 83 police station and arrived at the spot.
114. Whereas, the examination-in-chief of PW-1 reveals that he has deposed that on receiving of Rukka, he had handed over the copy of FIR alongwith the original Rukka to ASI Vijay, who was present in the IO room of police station Seelampur and SHO had telephonically directed to hand over the investigation of this case to ASI Vijay Kumar and said direction was received by PW-1 at 5:25 PM and thus, the testimony of PW-1 and PW-2 are found to be inconsistent to each other. As, the PW-2 has claimed that he had handed over the parcels of the contraband, samples, seizure memo and FSL form to the SHO. The testimony of PW-1 reveals that the SHO was not in the police station at that time and he had telephonically directed to hand over the further investigation to ASI Vijay Kumar and if, the SHO was not in the police station at the time of arrival of PW-2 Ct. Amit in the police station alongwith the abovesaid parcels, seizure memo and FSL form, then who had received the same from PW-2.
115. SHO has also been examined as PW-10 (Satish Kumar) and PW-10 has also deposed that on dated 23.01.2018 at about 5:30/6:00 PM, Ct. Amit came to his office and produced seven sealed pullandas, sealed with the seal of 'DK' alongwith form of FSL and three carbon copies of seizure memo and one bag of brown colour and he had signed the same and handed over the same to the MHC(M), but, the testimonies of PW-1 ASI Satish Chand, PW-2 Ct.
84Amit and PW-10 Satish Kumar are found to be inconsistent to each other, so, the same become suspicious.
116. AS their lordship of Hon'ble High Court of Delhi in the case "Pradeep Kumar Vs. State 1997 IV AD(Delhi) 666" was pleased to hold that "I also tend to agree with the learned counsel for the appellant that the prosecution cannot be taken to have proved that the C.F.S.L. Form was actually deposited with the Moharir Malkhana or that it was actually sent thereafter to the C.F.S.L. of course, the Investigating Officer stated that the C.F.S.L. Form was filled in. It is also true that the Moharir Malkhana has made a statement that the C.F.S.L. Form was deposited. It also cannot be denied that the constable who took the sample parcel to the C.F.S.L. has deposed that he had deposited the C.F.S.L. Form with the C.F.S.L. However, I am not inclined to place reliance on this oral evidence as it is not supported by the documentary evidence. Had the C.F.S.L. Form been deposited with the Moharir Malkhana and had it been handed over to the constable who had taken the sample parcel to the C.F.S.L., it would have found mention in the Register of the Moharir Malkhana. It find no such mention. There is no entry to the effect that the said Form was deposited or was later sent to the C.F.S.L. and further held "besides what has been 85 recorded by me, I find myself one with the Learned counsel for the appellant that the prosecution version cannot be accepted as gospel truth and that doubts would legitimately be raised as the Investigating Officer made no efforts to join any witness from the Public. It is not the case of sudden apprehension and recovery. It is a case, where, secret information has been received. It is in evidence that there were shops and that consequently persons from the public were available to the investigating officer at his elbow. And yet he made no effort to join any witness from the public.
113. I feel that keeping in view what has been noticed by me above, the failure of Investigating Officer to join the witnesses from the Public assumes significance.
"For the reason recorded above, I hold the appeal deserves to be allowed. I do so. The conviction of the appellant U/S 20 of the Act and sentenced passed thereunder stand set a aside. Fine, if deposited, be refunded. Let the appellant be set free, if not wanted in any other case".
117. In the report u/s. 173 of CrPC, it is alleged that this accused was carrying a heavy ladies bag of brown- white colour, wherein, contraband was kept. Whereas, PW-2, PW-4 and PW-6, in their examination-in-chief, have deposed that the accused was carrying a bag of 86 white colour. When SI Dinesh has been examined as PW-9, he has deposed that the said bag of accused was having strips. When PW-10 has been examined in the court, he has deposed that one bag of brown colour was produced before him by Ct. Amit, thus, there are material contradictions in the testimonies of abovesaid witnesses of the prosecution, which also render the case of the prosecution to be doubtful.
118. Their lordship of Supreme Court in case State of Rajasthan V. Raja Ram, V (2003) SLT 45-III (2003) CCR 198 (SC)=(2003) 8 SCC 180 was pleased to hold that:
There is no embargo on the appellate Court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice 87 which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case, where admissible evidence is ignored, a duty is cast upon the appellate Court to reappreciate the evidence in a case where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused committed any offence or not (see Bhagwan Singh v. State of M.P., (2002) 4 SCC 85). The principle to be followed by appellate Court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. IF the impugned judgment is clearly unreasonable, it is a compelling reason for interference. These aspects were highlighted by this Court in Shivaji Sahabrao Badade v. State of Maharashtra, (1973) 2 SCC 793; Ramesh Babulal Doshi v. State of Gujarat, (1996) 9 SCC 225 and Jaswant Singh v. State of Haryana, (2000) 4 SCC 484.
119. Since, their lordship of Supreme Court of India in case Mausam Singh Roi & Others Vs. State of West Bengal (2003) 12 SCC 377 was pleased to hold that "It is settled principle criminal jurisprudence that more serious the offence, stricter the degree of proof since of higher degree of assurance is required to convict the 88 accused"
120. In the instant case, despite availability of independent public witnesses, no genuine and sincere efforts were made by the Investigating Officers to associate them. The explanation offered by the Investigating Officers do not inspire confidence. Secret information was received at around 1:00 PM in the police station Seelampur that the accused would bring charas in huge quantity at 2:15 PM. Apparently, the police officials had sufficient time to make sincere efforts to associate independent public witnesses in the raiding team. However, nothing was done. For the first time, when the raiding team arrived at the Brahmpuri Pullia at 1:45 PM, some passersby were allegedly asked to join the raiding party. They purportedly declined to participate showing their difficulties. It has come on record that there were number of shops, school, office of Delhi Jal Board near the place of alleged occurrence and road on which, the contraband is alleged to have been recovered from the accused, is a busy road. None of the shopkeepers was requested to be a part of the raiding team and the raiding team allegedly remained at the spot for a considerable time and if the testimonies of SI Dinesh and ASI Vijay 89 are looked into, they are alleged to have made attempt, but, it is strange that for hours together. The Investigating Agency was not able to associate even a single independent public witness at any stage of the investigation. Admitted position is that there was school, hospital and office of Delhi Jal Board and shopkeepers, etc. at the crowded and busy road. It is not explained as to why only the passersby were requested to join the investigation. Even their names or addresses were not recorded and no action whatsoever was taken for their alleged refusal to assist in the investigation. Apparently, the Investigating Agency were not interested to make any independent witness to be a part of the raiding team.
121. Since, their lordship of the Hon'ble High Court of Delhi in case Mohd. Masoom Vs. State of NCT of Delhi 219(2015) DLT 271 was pleased to hold that "Appellants conviction is primarily based upon the testimonies of the police officers / officials only. Admittedly, no independent public witness was associated at any stage of the investigation. True, it is no rule of law that public witnesses should be joined in every eventuality and no conviction can be based upon the testimonies of the police officials. Sometimes 90 it becomes highly difficult for the police officials to associate independent public witnesses for various reasons. At the same time, it is undoubtedly true that joining of independent public witnesses is not a mere formality. Simply saying by the police witnesses that public witnesses were not available without any evidence to that effect would not be suffice. The Investigating Officer is required to make genuine efforts to associate independent public witnesses if available. This is insisted so as to lend authenticity and credibility to the search and recovery that are effected. It is of course not an absolute rule and fact of each case has to be appreciated and scrutinized on its own merits".
122. So in the light of the above mentioned judgment, I am inclined to hold that in the absence of any public witness to the alleged recovery of the contraband and in view of inconsistent testimonies of the police witnesses, the alleged recovery from the accused becomes doubtful.
123. The cross-examination of PW-2 reveals that he has admitted in his cross-examination that SI Dinesh did not ask any public person from the nearby school or hospital 91 to join the investigation. He has also admitted that no public person or govt. employee were called by the investigating officer to join the investigation. Thus, the testimony of this PW-2 Ct. Amit and PW-9 SI Dinesh are found to be inconsistent.
124. Since the testimonies of prosecution's witnesses regarding non joining of the public witnesses are found to be inconsistent on the material points, The testimonies of the prosecution's witnesses, who are police personnels are inconsistent, doubtful & suspicion, so, they do not inspire any confidence. In the above discussed circumstances, the possibility of false implication of accused can not be ruled. Therefore, benefits of doubts are given to the accused.
125. Cumulative fact of the above discussion is that the prosecution has failed to prove the charges framed against this accused beyond reasonable doubt.
126. In view of the above discussion, accused is acquitted of the charges framed against them and the case properties are ordered to be disposed off after expiry of period to file the appeal as per rules. The accused is directed to furnish bail bonds in the sum of Rs.10,000/- with one surety of like amount each, as per the provision of 92 Section 437(A) of Cr.P.C, for next six months to ensure their presence in the Hon'ble appellate court and on filing of bail bonds and surety bonds, the file be consigned to the Record Room.
Announced in the open court on 10 th Day, of March, 2023.
Digitally signedPAWAN by PAWAN KUMAR MATTO KUMAR Location:
Date:
Delhi MATTO 2023.03.13 08:22:59 +0530 (PAWAN KUMAR MATTO) Special Judge (NDPS) / Addl. Sessions Judge North East District / Karkardooma Courts, Delhi