Delhi District Court
State vs Subhash Jaiswal Sr. Citizen on 18 December, 2023
IN THE COURT OF SPECIAL JUDGE (NDPS),
SHAHDARA, KARKARDOOMA COURTS, DELHI
STATE VS. SUBHASH JAISWAL & ANR.
Session Case No. : 738/2015
CNR No. : DLSH010020582015
FIR No. : 114/2014
U/s : 21 of the NDPS Act, 1985
PS : Crime Branch
In the matter of :
State
Versus
1. Subhash Jaiswal
S/o late Sh. Khushi Ram
R/o Mohalla Kanoon Goyan,
Tehsil Faridpur, Bareily,
Uttar Pradesh
.......... Accused No. 1
2. Ram Avtar
S/o late Sh. Ram Swaroop
R/o Gali No. 4, Ward No. 3,
Mohali, Pakadia Naugama,
District Pilibhit, Uttar Pradesh
(Since died, proceedings stands abated
vide order dated 23.11.2021)
.......... Accused No. 2
Date of institution : 03.01.2015
Date when judgment reserved : 06.12.2023
Date of Judgment : 18.12.2023
SC No. 738/2015 Page 1 of 36
State vs. Subhash Jaiswal & Anr. Judgment dt. 18.12.2023
JUDGMENT:
1. This is a case in which accused Subhash Jaiswal has faced trial for commission of offence punishable under Section 21B of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short "the NDPS Act") on the allegations that he was found in possession of contraband i.e. heroin without any permit or licence in contravention of provisions of the NDPS Act which contraband was supplied to him by coaccused Ram Avtar who was chargesheeted for commission of offence punishable under Section 29 of the NDPS Act.
2. The case of the prosecution as borne out from the chargesheet is as under: 2.1. On 05.11.2014, SI Sanjay Neolia was present and on duty at Narcotics Cell, Kotwali, Delhi and at about 8.00 am, a secret informer came to him and informed that one person, namely, Subhash Jaiswal who is resident of Faridpur, Bareily, Uttar Pradesh and indulges in supply of heroin would come near exit gate, ISBT, Anand Vihar in between 9.30 am to 10.00 am with huge quantity of heroin to supply the same to someone and if a raid is conducted, he could be apprehended with the contraband.
2.2. SI Sanjay Neolia at about 8.15 am produced the said secret informer before Inspector Kuldeep Singh who made enquiry from the secret informer and after satisfying SC No. 738/2015 Page 2 of 36 State vs. Subhash Jaiswal & Anr. Judgment dt. 18.12.2023 himself with the information communicated the same to Sh. R.K. Tyagi, ACP, Narcotics Cell telephonically. The ACP directed to take legal action immediately. SI Sanjay Neolia lodged DD no. 5 in this regard at 8.30 am and produced the copy of the same before Inspector Kuldeep Singh for the proceedings under Section 42 of the NDPS Act.
2.3. Pursuant to the direction of Inspector Kuldeep Singh, SI Sanjay Neolia prepared a raiding party comprising himself, HC Bharat Singh and Ct. Manoj and took IO kit, field testing kit and electronic weighing machine and, thereafter, the raiding party along with the secret informer departed from Narcotics office for the spot at around 8.50 am in a government vehicle i.e. gypsy bearing Registration No. DL 1CM 4228 which was being driven by HC Rajeev. Departure entry vide DD no. 6 was made in this regard.
2.4. The raiding party reached near ISBT Anand Vihar via Shanti Van Chowk, Rajghat, Vikas Marg, Karkarimor, Patparganj, Hasanpur Depot; and at Karkarimor four public persons and near ISBT Anand Vihar, five persons were asked to join the raiding team after disclosing secret information to them, but they refused to join the raiding party stating their reasonable causes and left without disclosing their names and addresses.
2.5. The raiding party reached at the spot i.e. ISBT SC No. 738/2015 Page 3 of 36 State vs. Subhash Jaiswal & Anr. Judgment dt. 18.12.2023 Anand Vihar at around 9.30 am and the above said government vehicle was parked before 50 meters from the exit gate of ISBT Anand Vihar and driver HC Rajeev was instructed to remain there with the gypsy. SI Sanjay Neolia briefed the raiding party and made nakabandi near the exit gate of ISBT Anand Vihar at different places within the area of 2.50 meter.
2.6. At around 9.40 am, one person came out from ISBT Anand Vihar towards the exit gate who was carrying a green colour bag on his right shoulder and who was identified by the secret informer as 'Subhash' and, thereafter, the secret informer left the spot. The said person started waiting for someone while standing at one side of ISBT Anand Vihar Exit gate main road. After waiting for about 10 minutes, when he started going inside ISBT Anand Vihar rapidly, he was apprehended by the raiding party.
2.7. The name of the apprehended person was revealed as Subaash Jaiswal, son of late Sh. Khushi Ram, resident of Mohalla Kanoon Goyan, Tehsil Faridpur, Bareliy, Uttar Pradesh (accused no. 1). SI Sanjay Neolia introduced himself and the raiding party to the accused and requested many public persons who had assembled there to join the investigation but none agreed and left without disclosing their names and addresses.
2.8. Accused Subhash Jaiswal was informed about the SC No. 738/2015 Page 4 of 36 State vs. Subhash Jaiswal & Anr. Judgment dt. 18.12.2023 secret information and he was given notice under Section 50 of the NDPS Act contents of which were read over and explained to him, but the accused refused to get himself searched in presence of a Gazetted Officer or a Magistrate and also refused to take search of the raiding party & the government vehicle. He wrote his refusal in his handwriting on the notice and signed the same in Hindi.
2.9. SI Sanjay Neolia conducted cursory search of accused Subhash Jaiswal and one green colour bag was recovered which was found containing one green colour jacket of the accused, one blanket, one bedsheet and one white colour polythene bag (momy thaili); and on checking the said polythene bag (momy thaili) which was tied by the rubber band at its mouth, it was found containing matiala colour powder which on checking in the field testing kit was found to be heroin.
2.10. On weighing the recovered contraband, it was found 200 grams along with the polythene, out of which two samples of 5 grams each were taken in two small plastic polythene and the same were converted into two pullandas with the help of white cloth and the said pullandas were marked as A and B. The remaining heroin was kept in the same mommy thaili and the same was also converted into a pullanda with the help of cloth and the said pullanda was marked as C. 2.11. All the pullandas were sealed by SI Sanjay Neolia SC No. 738/2015 Page 5 of 36 State vs. Subhash Jaiswal & Anr. Judgment dt. 18.12.2023 with his seal '7AP SNB, DELHI' and he also filled up the FSL form at the spot and put his seal '7AP SNB, DELHI' on the same. All the sealed pullandas along with FSL form were taken into police possession. Thereafter, SI Sanjay Neolia prepared tehrir and handed over the same to Ct. Manoj Tyagi along with all the sealed pullandas, FSL Form and copy of seizure memo with a direction to hand over the tehrir to the Duty Officer for registration of case against accused Subhash Jaiswal and other articles to the SHO PS Crime Branch. Ct. Manoj Tyagi accordingly left the spot along with HC Rajeev in government gypsy.
2.12. After registration of FIR, further investigation was assigned to SI Rajni Kant, the second IO of the case. He departed for the spot along with HC Rajeev in government vehicle No. DL1CM4228 vide DD No. 23. After reaching at the spot, SI Rajni Kant was apprised the facts of the case by SI Sanjay Neolia and he was handed over the documents, recovered bag and custody of accused Subhash Jaiswal. He seized the bag of the accused and prepared site plan at the instance SI Sanjay Neolia and recorded statement of HC Bharat under Section 161 Cr.P.C.
2.13. SI Rajni Kant interrogated accused Subhash Jaiswal and arrested him at about 7.20 pm. He also conducted personal search of the accused during which carbon copy of notice under Section 50 of the NDPS Act, Rs. 630/ in SC No. 738/2015 Page 6 of 36 State vs. Subhash Jaiswal & Anr. Judgment dt. 18.12.2023 cash and a small green colour pocket diary were recovered which were taken into police possession and, thereafter, recorded disclosure statement of the accused.
2.14. SI Rajni Kant handed over the personal search articles of accused Subhash Jaiswal to MHC(M) to be deposited in the maalkhana after reaching to police station along with the other police staff. He recorded the statement of the SHO and the MHC(M) and thereafter produced accused Subhash Jaiswal before Inspector Kuldeep Singh after reaching at Narcotic Cell . He lodged his arrival in DD register vide DD no. 26 and recorded statements of Inspector Kuldeep Singh, SI Sanjay Neolia, Ct. Manoj Tyagi and HC Bharat under Section 161 Cr.P.C.
2.15. SI Sanjay Neolia prepared special report under Section 57 of the NDPS Act and produced the same before Inspector Kuldeep Singh who further forwarded it to the senior officers.
2.16. As per disclosure statement of accused Subhash Jaiswal, he was supplied the recovered contraband by one Ram Avtar who is resident of Pilibhit. Accused Subhash Jaiswal was produced in the court and 03 days police custody remand was obtained. Thereafter, Ram Avtar was searched in Piliibhit but he could not be traced out.
2.17. On 07.11.2014, sealed pullanda Mark A was deposited at FSL, Rohini through Ct. Nityanand vide RC No. 372/21 for chemical examination. As per the FSL SC No. 738/2015 Page 7 of 36 State vs. Subhash Jaiswal & Anr. Judgment dt. 18.12.2023 result, exhibit A was found containing 'Diacetylmorphine', Acetaminophen, Acetylcodeine and 6 monoacetylmrphine'.
2.18. After completion of investigation, SI Rajni Kant prepared chargesheet qua accused Subhash Jaiswal under Section 21 of the NDPS Act and filed in the Court on 03.01.2015, however investigation was kept open qua accused Ram Avtar.
3. Further investigation was carried out by IO/SI Rajni Kant qua accused Ram Avtar and the said accused was arrested by the raiding party on 23.02.2015 at 6.25 pm from his house i.e. Gali No. 4, Ward No. 3, Mohali Pakadia Naugama, District Pilibhit, UP and before arrest he was served notice under Section 50 of the NDPS Act to which accused Ram Avtar refused to avail his legal rights. His personal search was conducted during which carbon copy of notice under Section 50 was recovered, however no contraband was recovered. The house of accused Ram Avtar was also searched in his presence but no contraband was recovered. Disclosure statement of accused Ram Avtar was recorded wherein he has admitted to be indulged in smuggling of contraband.
4. Supplementary chargesheet qua accused Ram Avtar under Section 29 of the NDPS Act was prepared and filed by IO/SI Rajni Kant on 10.04.2015.
5. After compliance of Section 207 Cr.P.C., charge SC No. 738/2015 Page 8 of 36 State vs. Subhash Jaiswal & Anr. Judgment dt. 18.12.2023 under Section 21B of the NDPS Act against accused Subhash Jaiswal and charge under Sections 21/29 of the NDPS Act against accused Ram Avtar were framed on 16.04.2015 to which they pleaded not guilty and claimed trial.
6. In order to prove its case, the prosecution has examined 10 witnesses.
7. It is pertinent to mention here that during course of the proceedings when the matter was proceeding for prosecution evidence, accused Ram Avtar has expired and proceedings against him were abated vide order dated 23.11.2021.
8. PW1 is SI Rajni Kant, the 2nd IO of the case who carried out the investigation in the present case after registration of FIR. He deposed that on 05.11.2014, he was handed over original rukka and computerized FIR by Ct. Manoj as further investigation was marked to him. He along with HC Rajiv left for spot in government vehicle i.e. gypsy bearing Registration no. DL1CM4228 vide DD No. 23, attested copy of which is Ex.PW1/A. He further deposed that at spot, he met SI Sanjay Neolia, HC Bharat and accused Subhash Jaiswal. SI Sanjay Neolia handed over him original copy of seizure memo, notice under Section 50 of the NDPS Act and one bag which the accused was carrying containing one jacket, one bed sheet and one blanket. He seized the said bag vide seizure memo SC No. 738/2015 Page 9 of 36 State vs. Subhash Jaiswal & Anr. Judgment dt. 18.12.2023 Ex.PW1/B. He prepared site plan Ex.PW1/C at the instance of SI Sanjay Neolia, interrogated accused Subhash Jaiswal and arrested him at around 7.20 pm vide arrest memo Ex.PW1/D. He also conducted personal search of accused Subhash Jaiswal vide personal search memo Ex.PW1/E during which carbon copy of notice under Section 50 of the NDPS Act, Rs. 630/ in cash and a small green colour pocket diary were recovered. He recorded disclosure statement of accused Subhash Jaiswal vide Ex.PW1/F and, thereafter, he along with other police staff and the accused left the spot at about 7.45 pm and reached at PS Crime Branch, Malviya Nagar at around 8.45 pm where he handed over the personal search articles of the accused to MHC(M) HC Jag Narayan. Thereafter, at around 9.35 pm, he along with other staff and the accused proceeded to Narcotics Office and reached there at about 10.15 pm where he produced the accused before Inspector Kuldeep Singh. At about 10.30 pm, he lodged his arrival DD entry vide DD no. 26 which is Ex. PW1/G. He prepared special report under Section 57 NDPS Act Ex. PW1/H and produced the same before Inspector Kuldeep Singh. He further deposed that on 07.11.2014, case property/sample of the case was sent to FSL Rohini through Ct. Nitya Nand. He obtained the FSL result and prepared challan against accused Subhash Jaiswal.
9. The deposition of PW1 SI Rajni Kant regarding SC No. 738/2015 Page 10 of 36 State vs. Subhash Jaiswal & Anr. Judgment dt. 18.12.2023 investigation carried out by him qua accused Ram Avtar is not being noted here as the proceedings against accused Ram Avtar stands abated.
10. PW2 ASI Bharat Singh (the then Head Constable) is one of the members of the raiding party and was also part of investigation carried out qua accused Subhash Jaiswal after registration of FIR. He deposed on the similar lines as deposed by PW8 Inspector Sanjay Neolia, the 1st IO of the case and PW1 SI Rajni Kant, the 2nd IO of the case. During his testimony, he also exhibited notice under Section 50 of the NDPS Act which was served upon accused Subhash Jaiswal as Ex.PW2/A and the seizure memo by which 3 sealed pullandas and FSL form were taken into police possession as Ex. PW2/B.
11. PW3 is HC Nityanand who got deposited one sealed pullanda Mark A along with sealed FSL form and some photocopy papers at FSL, Rohini vide RC No. 372/21/14 after collecting the same from the maalkhana.
12. PW4 is HC Sudhakar Arya who was the Duty Officer in PS Crime Branch on 05.11.2014. He registered the FIR in the present case on the basis of rukka through computer, computerized copy of which is Ex.PW4/A and endorsement made by him on the rukka is Ex.PW4/B.
13. PW5 is ASI Ram Bhool who was posted as Reader in the Office of ACP, Narcotics, Crime Branch, Delhi on SC No. 738/2015 Page 11 of 36 State vs. Subhash Jaiswal & Anr. Judgment dt. 18.12.2023 05.11.2014. He deposed that on 05.11.2014, DD no. 5 dated 05.11.2014 lodged by SI Sanjay Neolia which is Ex.PW5/B was received by him through dak and he made entry in the dak register to this effect vide diary no. 2683; and the said DD was gone though and signed by ACP Narcotics at point A. He has produced the copy of relevant page of the dak register showing diary no. 2683 regarding receipt of DD no. 5 in the office of the ACP Narcotics as Ex.PW5/A. He further deposed that on 06.11.2014, two reports under Section 57 of the NDPS Act, one prepared by SI Sanjay Neolia regarding seizure of 200 grams heroin from accused Subhash Jaiswal which is Ex.PW5/E and the other prepared by SI Rajni Kant regarding arrest of accused Subhash Jaiswal which is Ex.PW5/F were received at their office through dak. He made entry to the said effect in the diary register vide entry no. 2711 and 2712 respectively and produced copy of the relevant page of the dak register showing entry no. 2711 which is Ex.PW5/C and entry no. 272 which is Ex. PW5/D. He deposed that both the aforesaid reports were seen and signed by the ACP. He has also deposed regarding receipt of report under Section 57 of the NDPS Act qua accused Ram Avtar.
14. PW6 is Inspector Kuldeep Singh who deposed that on 05.11.2014, he was posted at Narcotics Cell as Inspector and on that day, at about 8.15 am, SI Sanjay SC No. 738/2015 Page 12 of 36 State vs. Subhash Jaiswal & Anr. Judgment dt. 18.12.2023 Neolia along with secret informer came to his office and informed him that one person, namely, Subhash Jaiswal indulges in supply of heroin and he would come near exit gate, ISBT, Anand Vihar in between 9.30 am to 10.00 am to deliver a consignment of smack to someone at exit gate of ISBT Anand Vihar and if a raid is conducted, he could be apprehended. He made inquiry from the secret informer and after his satisfaction, he conveyed the said information to Sh. R.K. Tyagi, ACP, Narcotics Cell telephonically who directed him to conduct a raid. He conveyed the said direction to SI Sanjay Neolia who lodged DD No. 5 Ex.PW5/B in this regard and produced copy of the same before him which he forwarded to the ACP, Narcotics Cell. He further deposed that as per his directions, SI Sanjay Neolia prepared a raiding party consisting of himself, HC Bharat, Ct. Manoj and driver HC Rajiv and the raiding party along with informer left the office of Narcotics Cell in government vehicle no. DL1CM4228. He further deposed that after registration of case, the investigation was marked to SI Rajni Kant as per orders of senior officers and at about 10.15 pm, SI Rajni Kant produced accused Subhash Jaiswal before him in the office. He made inquiries from the accused and found his arrest justified. He further deposed that on 06.11.2014, SI Sanjay Neolia produced a special report under Section 57 of the NDPS Act regarding seizure of 200 grams of heroin which is Ex.PW5/E and SI Rajni Kant produced another SC No. 738/2015 Page 13 of 36 State vs. Subhash Jaiswal & Anr. Judgment dt. 18.12.2023 special report under Section 57 regarding arrest of accused Subhash Jaiswal which is Ex.PW5/F before him which he forwarded to the ACP, Narcotics.
15. PW7 is Inspector Manjeet Tomar, the then SHO, PS Crime Branch, Malviya Nagar, New Delhi. He deposed that on 05.11.2014, at about 2.35 pm, Ct. Manoj Tyagi came in his office and handed over him 3 sealed pullandas sealed with the seal of 7APSNBDELHI marked as A, B and C along with FSL form having specimen seal of 7APSNBDELHI and carbon copy of seizure memo. He put his counter seal 'MT' on the three pullandas and the FSL form and also put details of FIR on the three pullands and the carbon copy of seizure memo. Thereafter, he called MHC(M) HC Jag Narain in his office along with register no. 19 and handed over the sealed pullandas, FSL form and carbon copy of seizure memo to MHC(M) HC Jag Narain to deposit the same in the maalkhana.
16. PW8 is Inspector Sanjay Neolia, the 1 st IO of the case. He deposed that on 05.11.2014, he was posted as Sub Inspector at Narcotics Cell, Kotwali, Delhi. On that day, at about 8.00 am, a secret informer came to him and informed that one person, namely, Subhash Jaiswal used to supply heroin and he would come near exit gate, ISBT, Anand Vihar in between 9.30 am to 10.00 am with huge quantity of heroin to supply the same to someone. He produced the said secret informer before Inspector SC No. 738/2015 Page 14 of 36 State vs. Subhash Jaiswal & Anr. Judgment dt. 18.12.2023 Kuldeep Singh, who made enquiry from the secret informer and after satisfying himself with the information communicated the same to Sh. R.K. Tyagi, ACP, Narcotics Cell telephonically who directed to take legal action immediately. He lodged DD no. 5 in this regard at 8.30 am which is Ex.PW5/B and produced the copy of the same before Inspector Kuldeep Singh. He then called HC Bharat and Ct. Manoj and prepared a raiding party comprising himself, HC Bharat, Ct. Manoj and secret informer. He took IO kit, field testing kit and electronic weighing machine and, thereafter, the raiding party departed from Narcotics office for the spot at around 8.50 am in gypsy bearing No. DL 1CM 4228 being driven by HC Rajeev; and in this regard he made departure entry vide DD no. 6 at 8.50 am, copy of which is Ex.PW7/A.
17. This witness (PW8) further deposed that they reached near ISBT Anand Vihar via Shanti Van Chowk, Rajghat, Vikas Marg, Karkarimor, Patparganj, Hasanpur Depot; and on the way four public persons were asked to join the investigation at Karkarimor and five public persons were asked to join the raiding party near ISBT Anand Vihar after disclosing secret information to them, but none agreed and they left without disclosing their names and addresses and due to paucity of time, no legal notice could be served upon them. He further deposed that the raiding party reached at the spot i.e. near the exit gate SC No. 738/2015 Page 15 of 36 State vs. Subhash Jaiswal & Anr. Judgment dt. 18.12.2023 of ISBT Anand Vihar at around 9.30 am and the above said government vehicle was parked before 50 meters from the exit gate of ISBT Anand Vihar and he made nakabandi near the exit gate of ISBT Anand Vihar. At around 9.40 am, one person came out from ISBT Anand Vihar who was having a green colour bag on his right shoulder and he came towards exit gate. The said person was pointed out by the secret informer as the accused and, thereafter, the secret informer went from there. The said person kept standing at the exit gate of ISBT Anand Vihar for about 10 minutes as he was appearing to be waiting for someone; and at around 9.50 am, when he was going towards inside ISBT Anand Vihar, he was apprehended by them and he disclosed his name as Subhash Jaiswal i.e. the accused.
18. PW8 Inspector Sanjay Neolia further deposed that he introduced himself and other members of the raiding party to the accused and informed the accused about the secret information and told him that his personal search was required to be taken. He requested public persons who had gathered there to join the investigation but they refused. He called the government vehicle at the spot. He prepared notice under Section 50 of the NDPS Act in duplicate, explained its contents to the accused and served the carbon copy of the same upon the accused and apprised the accused about his legal right to be searched in SC No. 738/2015 Page 16 of 36 State vs. Subhash Jaiswal & Anr. Judgment dt. 18.12.2023 presence of a Gazetted Officer or a Magistrate and to take search of the raiding party & the government vehicle before his search; but the accused refused for the same. He, thereafter, conducted cursory search of the accused during which one green colour bag was recovered from right shoulder of the accused and on checking the said bag, one green colour jacket of the accused, one blanket, one bedsheet and one white colour polythene bag were recovered; and on checking the said polythene bag,it was found containing matiala/ muddish colour powder which on checking in the field testing kit was found to be heroin.
19. The witness further deposed that he weighed the entire recovered contraband along with the polythene bag on electronic machine and it was found 200 grams, out of which two samples of 5 grams each were taken out and the same were kept in two small transparent polythene bags which were converted into two pullandas with the help of white cloth and the said pullandas were marked as A and B; and the remaining heroin was kept in the same polythene bag and the same was also converted into a pullanda with the help of cloth and the said pullanda was marked as C. He sealed all the pullandas with his seal '7APSNB, DELHI' and he signed on all the pullandas. He also filled up the FSL form at the spot regarding aforesaid recovery and put his seal '7APSNB, DELHI' on the same and all the sealed pullandas along with FSL form were SC No. 738/2015 Page 17 of 36 State vs. Subhash Jaiswal & Anr. Judgment dt. 18.12.2023 taken into police possession vide seizure memo Ex.PW2/B.
20. This witness (PW8) further deposed that he prepared tehrir Ex.PW7/B and handed over the same to PW9 Ct. Manoj Tyagi along with all the sealed pullandas, FSL Form and copy of seizure memo with a direction to hand over the tehrir to the Duty Officer for registration of case and other articles to the SHO PS Crime Branch for compliance of proceedings under Section 55 of the NDPS Act; and accordingly Ct. Manoj Tyagi left the spot along with HC Rajeev in government gypsy at about 1.05 pm. At about 5.00 pm, SI Rajni Kant along with HC Rajeev came to the spot and he was apprised that further investigation was marked to SI Rajni Kant. He handed over the accused, original seizure memo, original notice and green colour bag of the accused to SI Rajni Kant who prepared site plan at his instance. He further deposed that the accused was interrogated by the second IO and was arrested and his personal search was conducted during which carbon copy of notice under Section 50 of the NDPS Act, one green colour pocket diary and Rs. 630/ were recovered which were taken into police possession vide seizure memo and which were deposited by the second IO to MHCM, PS Crime Branch. He further deposed that on the next day, he prepared report under Section 57 NDPS Act Ex. PW5/E regarding recovery of 200 grams of heroin and produced SC No. 738/2015 Page 18 of 36 State vs. Subhash Jaiswal & Anr. Judgment dt. 18.12.2023 the same before Inspector Kuldeep Singh. The witness has identified the carbon copy of notice under Section 50 of the NDPS Act which was served upon the accused and produced by MHC (M) and the same is Ex.PW7/C. He has also identified green colour pocket note book/dairy Ex.P5 and currency notes of Rs. 630/ Ex.P6 (Colly) which were recovered during personal search of the accused.
21. PW9 Ct. Manoj Tyagi is one of the members of the raiding party. He deposed more or less on the similar lines as deposed by PW8 Inspector Sanjay Neolia, the 1st IO of the case.
22. PW10 is ASI Jag Narain, the then MHC(M), PS Crime Branch, Malviya Nagar. He deposed that on 05.11.2014, he was called by Inspector Manjeet Tomar, SHO, PS Crime Branch who handed over him three sealed pullandas marked A, B and C bearing seal of 7APSNB DELHI & MT along with FSL form bearing the same seals and carbon copy of seizure memo and he made entry in this regard in register no. 19 at serial no. 2262. He produced copy of the same as Ex.PW10/A. He further deposed that on the same date, SI Rajni Kant deposited with him jamatalashi articles along with one sealed pullanda of accused Subhash Jaiswal. He made entry to the said effect in the register no. 19 at Serial no. 2263 and produced the copy of relevant page of the register showing entry no. 2263 which is Ex.PW10/B. The witness further SC No. 738/2015 Page 19 of 36 State vs. Subhash Jaiswal & Anr. Judgment dt. 18.12.2023 deposed that on 07.11.2014, one sealed pullanda Mark A along with FSL form, forwarding letter and other documents was sent to FSL, Rohini through Ct. Nityanand vide road certificate no. 372/21/14, copy of which is Ex. PW10/C; and after depositing the same, Ct. Nityanand handed over him the receipt of the acknowledgment, copy of which is Ex. PW10/D. He further deposed that on 11.12.2014, Ct. Birbal deposited FSL result contained in a sealed envelope and one pullanda sealed with the seal of FSL DELHI in the maalkhana and he after making entry in this regard from point Y to Y1 on Ex.PW10/E handed over the result to the IO.
23. After closing of the prosecution evidence, statement of accused Subhash Jaiswal under Section 313 Cr.P.C. was recorded wherein he pleaded his innocence and stated that he has been falsely implicated in the present case. He further stated that the police officials lifted him from the house of his relative, namely, Ram Prakash Gupta and they were asking regarding one Ram Avtar Gupta who was coaccused in the present case and he was not aware regarding Ram Avtar Gupta and, therefore, he was falsely implicated by the police officials in the present case.
24. I have heard the Ld. Counsel for the parties and perused the record carefully.
25. Ld. Additional Public Prosecutor has argued that the recovery witnesses, namely, PW2 ASI Bharat Singh, SC No. 738/2015 Page 20 of 36 State vs. Subhash Jaiswal & Anr. Judgment dt. 18.12.2023 PW8 Inspector Sanjay Neolia & PW9 Ct. Manoj Tyagi have duly proved the recovery of heroin from the possession of accused Subhash Jaiswal and the FSL report confirms the recovered substance as heroin. He further argued that the relevant provisions of the NDPS Act were duly complied with in the present case. He further argued that all the witnesses have supported the case of the prosecution and the prosecution has been able to prove its case against the accused and, therefore, the accused may be convicted for the offence charged with.
26. Per contra, Ld. Counsel for accused Subhash Jaiswal has argued that the accused is innocent and no contraband was recovered from the possession of the accused and alleged contraband has been planted upon him. He submitted that the accused was lifted by the police from the house of his relative, namely, Ram Prakash Gupta where the police had arrived in search of coaccused Ram Avtar Gupta (since diseased) and since the accused did not know the whereabouts of coaccused, the accused was lifted and has been falsely implicated in the present case. He argued that the spot from where the accused was allegedly apprehended being a bus terminal is a public and busy place and many public persons were present at the spot, but no public person has been joined upon by the IO at the time of apprehension of the accused and alleged recovery. He further argued that as per the secret SC No. 738/2015 Page 21 of 36 State vs. Subhash Jaiswal & Anr. Judgment dt. 18.12.2023 information, the accused was coming from Bareily, Uttar Pradesh by bus for supply of heroin in Delhi, but no bus ticket was found in possession of the accused during his personal search and it creates doubt on the prosecution story of apprehension of the accused from the spot. He further argued that as per PW1 Inspector Rajni Kant, the 2nd IO of the case, he had given the intimation of arrest of the accused to his known person but that known person did not arrive at the spot, whereas the arrest memo of the accused shows presence of one Abhishek Gaur to whom intimation of arrest of the accused was given and it shows that on the spot investigation was not carried out by Inspector Rajni Kant but he has done the paper work while sitting in the police station. He further argued that service of notice under Section 50 of the NDPS Act upon the accused is defective. He submitted that no such notice was prepared or got served upon the accused at the spot and the accused was forcibly made to sign the notice in the police station. He further argued that there are material contradictions in the testimonies of prosecution witnesses which put the prosecution case under suspicion. The Ld. Defence Counsel with these submissions has contended that the prosecution has failed to prove its case beyond reasonable doubt and hence the accused is liable to be acquitted.
27. As per the case of the prosecution, on 05.11.2014, SC No. 738/2015 Page 22 of 36 State vs. Subhash Jaiswal & Anr. Judgment dt. 18.12.2023 SI Sanjay Neolia, who was on duty at Narcotics Cell, Kotwali, Delhi, received a secret information that one person, namely, Subhash who is resident of Faridpur, Bareily, Uttar Pradesh and indulges in supply of heroin would come between 9.30 am to 10.00 am at ISBT Anand Vihar exit gate to supply huge quantity of heroin to someone. On receipt of the said information, SI Sanjay Neolia produced the secret informer before Inspector Kuldeep Singh who passed on the said secret information to Sh. Ravinder Kumar Tyagi, ACP, Narcotics Cell and, thereafter, the raiding team was prepared as per the instructions of the ACP and the raid was conducted during which accused Subhash Jaiswal was apprehended with the contraband at the instance of the secret informer.
28. The accused has taken a defence in his statement recorded under Section 313 Cr.P.C. that he was not apprehended from the spot and no alleged contraband i.e. heroin was recovered from his possession. The categorical stand of the accused is that he was lifted from the house of his relative and the alleged recovered contraband has been planted upon him by the police.
29. PW2 ASI Bharat Singh, PW8 Inspector Sanjay Neolia & PW9 Ct. Manoj Tyagi are the witnesses examined by the prosecution in order to prove the recovery of 200 grams of heroin from the possession of the accused. They are the part of the raiding team which apprehended SC No. 738/2015 Page 23 of 36 State vs. Subhash Jaiswal & Anr. Judgment dt. 18.12.2023 the accused from the spot with the contraband as per the case of the prosecution.
30. PW8 Inspector Sanjay Neolia is the 1 st IO of the case and was heading the raiding team. He received the secret information about the illegal possession of heroin by the accused who would come from Bareily, UP to ISBT Anand Vihar, Delhi to supply the same. During his cross examination, PW8 Inspector Sanjay Neolia has stated that the informer had not told him as to whether the accused is in Delhi or in Bareily. He further stated that the informer had not told him as to from which side of Anand Vihar ISBT, the accused would come. He further stated that there are three roads around the spot, one road towards the Railway Station, the second road leads to the exit gate of ISBT terminal and third road leads to U turn towards Ghazipur. He admitted that the secret informer had not told as to from which road the accused would come.
31. PW2 ASI Bharat Singh (the then Head Constable) who was a member of the raiding team and was informed about the secret information by SI Sanjay Neolia has also stated during his crossexamination that the buses which were passing from ISBT Anand Vihar were not checked by them. He further stated that the secret informer did not specifically disclose as to from which bus the accused would come. He admitted that IO did not record any description of the accused at the instance of the secret SC No. 738/2015 Page 24 of 36 State vs. Subhash Jaiswal & Anr. Judgment dt. 18.12.2023 informer.
32. PW9 Ct. Manoj Tyagi who was also a member of the raiding team stated in his crossexamination that the secret informer had not informed the physical description of the accused and he simply informed that the accused is an old person. He did not know whether the secret informer had informed the IO as to whether the accused would come from Bareily or Delhi. He did not know whether the secret informer had apprised the IO about the mode of transport (and or bus number) of the accused person.
33. Apart from aforesaid recovery witnesses who were aware of the secret information, another witness examined by the prosecution regarding receipt of secret information by SI Sanjay Neolia is PW6 Inspector Kuldeep Singh before whom the secret informer was produced by SI Sanjay Neolia. He admitted during his crossexamination that the accused was the resident of Bareily, UP as stated by him. He further admitted that when the secret informer was produced before him, he was not aware whether the accused was at Bareily or at Delhi at that time. He stated that the informer had not stated at that time that the accused was at Bareily or at Delhi. He stated that the secret informer had told that the accused would be coming at exit gate of ISBT Anand Vihar between 9.30 am to 10.00 am. He further stated that the informer had not SC No. 738/2015 Page 25 of 36 State vs. Subhash Jaiswal & Anr. Judgment dt. 18.12.2023 stated that by what conveyance the accused is coming to Delhi.
34. In view of the testimonies of aforesaid prosecution witnesses, it can be deduced that there was a secret information that the accused would be coming from Bareily to ISBT Anand Vihar, Delhi to supply heroin to someone. However, the aforesaid crossexamination of the witnesses makes it clear that the secret informer had not specifically disclosed as to from which bus the accused would come from Bareily to Delhi. PW8 Inspector Sanjay Neolia (the then SI) to whom the secret informer had approached and PW6 Inspector Kuldeep Singh before him the secret informer was produced by SI Sanjay Neolia were even not aware of the fact whether the accused was at Delhi or at Bareily at that time as it was not so informed by the secret informer.
35. In these facts, when the secret informer had not disclosed the fact that the accused who was to reach Delhi from Bareily, UP to supply heroin was at Delhi or at Bareily and it had also not been disclosed by the secret informer that from which bus the accused would be coming to Delhi from Bareily, it is not understandable how the said incomplete information could have been relied upon by PW8 Inspector Sanjay Neolia and PW6 Inspector Kuldeep Singh who claimed to have verified the secret information. It has also come on record that no SC No. 738/2015 Page 26 of 36 State vs. Subhash Jaiswal & Anr. Judgment dt. 18.12.2023 physical description whatsoever of the accused was provided by the secret informer either to PW8 Inspector Sanjay Neolia or PW6 Inspector Kuldeep Singh. Though PW9 Ct. Manoj Tyagi, one of the members of the raiding team, vaguely stated that the secret informer had told the accused to be an old person, but no such description has been provided by PW8 Inspector Sanjay Neolia before whom the secret informer had appeared or by PW6 Inspector Kuldeep Singh before whom the secret informer was produced by SI Sanjay Neolia.
36. PW8 Inspector Sanjay Neolia (the then SI) even stated that the secret informer had not told to him as to from which side of ISBT, Anand Vihar, the accused would come. If that was the case, then it is not understandable that how the accused was apprehended because as per PW8 Inspector Sanjay Neolia, there were three roads around the spot, one was leading to the Railway Station, second road was leading towards the exit gate of ISBT terminal and third one led to U turn Ghazipur side.
37. Similarly, PW1 Inspector Rajni Kant Sharma who is the 2nd IO of the case and conducted personal search of the accused after his arrest admitted in his cross examination that no train ticket or bus ticket was recovered form the personal search of the accused. He stated that no bus driver or conductor was interrogated by him in which the accused came to Delhi. He had not SC No. 738/2015 Page 27 of 36 State vs. Subhash Jaiswal & Anr. Judgment dt. 18.12.2023 enquired from SI Sanjay whether the secret informer gave any specific bus number to him or not.
38. In view of the aforesaid evidence led by the prosecution itself, the very foundation of the prosecution case of apprehension of the accused from the spot on the basis of secret information is not established.
39. It may also be noted that in this case, no public witness has been joined to authenticate the apprehension of the accused with the contraband at the spot. Right from the apprehension of the accused pursuant to the alleged secret information upto the investigation carried out by PW1 Rajni Kant Sharma, the 2nd IO of the case, it can be seen that neither any notice was served upon the public persons nor any action was taken against them on their refusal to join the investigation.
40. Though the recovery witnesses, namely, PW2 ASI Bharat Singh, PW8 Inspector Sanjay Neolia & PW9 Ct. Manoj Tyagi have deposed in their examinationinchief that public persons were asked to join the raiding party before the apprehension of the accused and at the time of personal search of the accused but they refused to join the investigation and left without disclosing their names and addresses and due to paucity of time, no notice could be served upon them.
41. The Hon'ble Supreme Court in Ritesh Chakraborty vs. State of Madhya Pradesh, 2006 (3) JCC (Narcotics) SC No. 738/2015 Page 28 of 36 State vs. Subhash Jaiswal & Anr. Judgment dt. 18.12.2023 150 deprecated the practice of Investigating Officer in not noting down the names of the public persons, who fail to join the investigation.
42. In Anup Joshi vs. State, 1999 (2) CC Cases 314 and Roop Chand vs. State of Haryana, 1999 (1) CLR 69, the failure to proceed against the public persons, who refused to join the investigation was considered as suggestive of the fact that the explanation for nonjoining of witnesses is an afterthought and is not worthy of credence.
43. As such, in view of the preposition of law laid down as above, it is to be examined as to whether serious efforts were made by the police to associate the public witnesses or not.
44. In this regard, PW8 Inspector Sanjay Neolia, the first IO of the case has categorically stated in his cross examination that he had not served any notice under Section 160 Cr.P.C. to any public person or bus driver or bus conductor at the spot. He further admitted that he had not given any notice to public persons to join the investigation at the time of serving notice under Section 50 NDPS Act.
45. PW2 ASI Bhart Singh who was part of the raiding team has also categorically stated that the spot was a busy road and thickly populated area. He further stated that the IO did not give any notice under Section 160 Cr.P.C. to SC No. 738/2015 Page 29 of 36 State vs. Subhash Jaiswal & Anr. Judgment dt. 18.12.2023 any public person to join the proceedings. He further stated that the IO did not join the Govt. officials i.e govt. bus driver, incharge of ISBT, etc. present at the spot in the proceedings.
46. PW1 Rajni Kant Sharma, the 2nd IO of the case who had carried out the investigation after registration of FIR has admitted during his crossexamination that the spot was a public place. He further stated that he did not join any public person in the investigation.
47. The aforesaid crossexamination of the prosecution witnesses clearly indicate that even no sincere or genuine effort was made by the IO to join the public witnesses to verify the proceedings conducted at the spot despite the spot being the bus terminal was a public and busy place and availability of the public witnesses over there who were the government employees.
48. In Mohd. Masoom vs. State of NCT of Delhi, Criminal Appeal 1404/11 decided on 09.04.2015, the Hon'ble High Court in Para No. 10 held as under: "10. "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, 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 SC No. 738/2015 Page 30 of 36 State vs. Subhash Jaiswal & Anr. Judgment dt. 18.12.2023 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 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.
49. The Hon'ble High Court in para '21' of the aforesaid Judgment held that, "It has become almost routine practice for the police to say that passersby were requested to join and they declined and went away without disclosing their names and therefore, the Court should be wary of routinely accepting such explanation."
50. In Om Prakash vs. State, III (2014) CCR 1 (Del.), it is held that, "In absence of clear evidence to show that sincere effort was made, Court should not simply accept proposition that generally in such cases no member of public comes forward to help prosecution". Reliance is also placed on Raj Bahadur Vs. State of Punjab 2008(4) CC Cases HC 357.
51. The Ld. Add. Prosecutor though has argued that it is the tendency of the public persons not to join the investigation and due to paucity of time the notice under Section 160 Cr.P.C, could not be served upon the public persons and, therefore, on this count prosecution cannot be blamed. To some extent, this submission of the Additional SC No. 738/2015 Page 31 of 36 State vs. Subhash Jaiswal & Anr. Judgment dt. 18.12.2023 Public Prosecutor may be correct and it is true that generally the pubic persons do not come forward to join the police investigation. But in the present case, as per the prosecution case, the accused was apprehended from ISBT Anand Vihar which is admittedly a busy place. Admittedly, bus conductors and InCharge, Bus Depot were available there at the time of alleged apprehension of the accused who were the government officials and they could not have denied to join the proceedings. But no genuine or sincere effort has been made by the IO to join them in the investigation and to serve the notice on the government officials who allegedly refused to join the investigation.
52. Further, as per the arrest memo Ex.PW1/D, the accused is shown to have been arrested from near the exit gate of ISBT, Anand Vihar at 7.20 pm on 05.11.2014. The intimation of his arrest was given to one Abhishek Gaur as shown at Serial No. 07 who also reached at the spot and signed the arrest memo. However, PW1 Rajni Kant, the 2nd IO of the case who had arrested the accused after registration of FIR has stated during his crossexamination that information regarding the arrest of accused was given to his known, however he did not remember the name of the said person. He further stated that the said person did not arrive at the spot. This deposition of the witness is in contradiction to the arrest memo Ex.PW1/D prepared by SC No. 738/2015 Page 32 of 36 State vs. Subhash Jaiswal & Anr. Judgment dt. 18.12.2023 the witness itself and which shows presence of known person of the accused, namely Abhishek Gaur, at the spot who was given intimation of arrest of the accused. It shows that either the accused was not arrested from the spot or PW1 SI Rajni Kant has not carried out the investigation in the present case at the spot, otherwise there was no reason for him to not recollect the fact that the relative of the accused, namely, Abhishek Gaur had come to the spot pursuant to the intimation given to him regarding arrest of the accused. Rather he stated that the said relative of the accused had not arrived at the spot. Therefore, serious doubt is cast upon the apprehension of the accused from the spot and recovery of the illegal contraband from the possession of the accused in the manner as deposed by the prosecution witnesses in the light of the above discussions.
53. It is also to be noted that as per the prosecution case, out of 200 grams of heroin allegedly recovered from the possession of the accused, two samples of 5 grams each were taken out in two small plastic polythenes and the same were converted into two cloth pullandas which were marked as A and B. The remaining heroin was kept in the same mommy thaili which was also converted into a cloth pullanda and the same was marked as C. All the pullandas were sealed and taken into police possession vide seizure memo Ex. PW2/B. SC No. 738/2015 Page 33 of 36 State vs. Subhash Jaiswal & Anr. Judgment dt. 18.12.2023
54. PW2 ASI Bharat Singh who in his examinationin chief has described the procedure of converting the recovered contraband into the pullandas has stated during his crossexamination that the IO had obtained signature of the accused on the pullandas at the spot. He further stated that the pullandas were marked by the IO as A, B and C respectively. However, PW7 Inspector Manjeet Tomar to whom all the three sealed pullandas along with FSL form were submitted to be deposited in the maalkhana stated in his crossexamination that he did not remember whether the said pullandas were having thumb impression or signatures of the accused.
55. PW8 Inspector Sanjay Neolia who had allegedly apprehended the accused and recovered the illegal contraband from the possession of the accused stated in his crossexamination that he did not obtain signature of the accused on the pullandas or sample drawn from the recovered contraband.
56. PW9 Ct. Manoj Tyagi who was part of the raiding team has stated in the crossexamination that no thumb impression and signatures of the accused were taken on the pullandas.
57. The aforesaid testimonies of the witnesses disclose that the prosecution witnesses are not even sure as to whether the pullandas in which the case property and the samples were kept were got signed or thump impressed by SC No. 738/2015 Page 34 of 36 State vs. Subhash Jaiswal & Anr. Judgment dt. 18.12.2023 the accused or not as they are taking contradictory stand to each other in this regard. It also goes to the root of the matter that if the illegal contraband was recovered from the possession of the accused and the same was converted into three cloth pullandas which were sealed, the same should have been got signed from the accused to certify the veracity of the recovery of heroin from the accused. But, as per the 1st IO/PW8 Inspector Sanjay Neolia, the signatures or thumb impression of the accused were not taken on the pullandas. In these circumstances, I find merit in the contention of the Ld. Counsel for the accused that the possibility of tampering the case property cannot be ruled out.
58. It is also interesting to note that the seal which was used to seal the cloth pullandas containing the case property and the samples after use was handed over to HC Bharat Singh, which fact has been confirmed by PW2 ASI Bharat Singh (the then Head Constable) during his crossexamination, however in the present case, no handing over and taking over memo of the seal has been prepared. It again casts doubt on the veracity of the claim of the prosecution that the case property was free from tampering.
59. PW1 SI Rajni Kant, the 2nd IO of the case also stated during his crossexamination that he did not check the accuracy of the electronic weighing machine. He was SC No. 738/2015 Page 35 of 36 State vs. Subhash Jaiswal & Anr. Judgment dt. 18.12.2023 IO of the case and he was supposed to check the accuracy of the weighing machine but that was not done. It shows that he carried out a shoddy investigation.
60. In view of the aforesaid discussions and the entirety of facts and circumstances of the case, it is evident that the prosecution case is highly doubtful and I have no hesitation to hold that the prosecution has failed to prove its case against the accused beyond reasonable doubt. It is well settled law that benefit of doubt has to be given to the accused. Accordingly, the accused is given benefit of doubt and he is acquitted of the offence punishable under Section 21B of the NDPS Act. Bail bonds furnished by him under Section 439 Cr.P.C. stand cancelled and his surety is discharged. The bail bonds furnished by him under Section 437A Cr.P.C in the sum of Rs.25,000/ are accepted, which shall remain in force for a period of six months.
61. File be consigned to Record Room after necessary compliance.
Announced in the open Court on 18th December, 2023 (Balwant Rai Bansal) Special Judge (NDPS Act), Shahdara Karkardooma Courts, Delhi SC No. 738/2015 Page 36 of 36 State vs. Subhash Jaiswal & Anr. Judgment dt. 18.12.2023