Delhi District Court
Fir No. 73/2015 State vs . Mohd. Idris Page No.1 Of 22 on 3 June, 2019
IN THE COURT OF SH. AJAY GUPTA,
SPECIAL JUDGE (NDPS),
KARKARDOOMA COURTS, DELHI
S.C. No. 1551/16
FIR No.73/2015
U/s 21 NDPS Act
PSCrime Branch
State
Versus
Mohd. Idrish
S/o Sh Bawla Yunus
G625, Ramswroop Colony
Near Sulemaan Masjid
Ghaziabad UP
........... Accused
Date of Institution: 14.07.2015
Reserved for Judgment on : 08.05.2019
Judgment pronounced on: 03.06.2019
JUDGMENT
The prosecution case in brief is that on 15.05.2015 at about 4.45 p.m, one secret informer came in the office of Narcotics Cell and gave information to SI Sanjay Neolia that one Idrish r/o of Ghaziabad UP who used to supply heroine, would come in between 6 p.m to 7 p.m to supply huge quantity of heroin to supply to someone at NH24 opposite Akshardham Mandir near bus stand and FIR No. 73/2015 State Vs. Mohd. Idris Page No.1 of 22 if raided, he can be apprehended. The secret informer was produced before Insp.Kuldeep Singh who also got himself satisfied about the information and passed on the information to ACP Sh Ravinder Tyagi through telephone, who directed to conduct the raid. The secret information was recorded vide DD no.17 at about 5.15 p.m and the copy of the same was sent to Insp.Kuldeep Singh in compliance of Section 42 of NDPS Act. SI Sanjay Neolia constituted a raiding party consisting of HC Ravinder, HC Sushil and they all alongwith secret informer, after taking the field testing kit, electronic weighing scale and IO bag proceeded to the spot vide DD no.18 on government vehicle no. DL1CM4228 driven by Ct. Pradeep and reached at 6.00 p.m. On the way, 5/6 passersby were requested at Rajghat red light and NH24 but none agreed and they left the places after disclosing their genuine reasons without telling their names and addresses. The raiding team members were deputed at the spot at different places. It is further the case of the prosecution that at about 6.25 p.m, one person was seen coming from the side of Pandav Nagar towards bus stand Akashardham. The secret informer identified the said person as Idrish and thereafter, he left. The said person was given the introduction of the raiding party. Some persons were requested to join the raiding party at the spot but they refused and left away. Government vehicle was called. Accused was informed about the secret information and notice u/s 50 NDPS Act was served upon him. Meaning of Gazetted Officer/Magistrate was explained to the accused. Accused refused to get himself searched FIR No. 73/2015 State Vs. Mohd. Idris Page No.2 of 22 in the presence of any Magistrate/Gazetted Officer and he also refused to take the search of the raiding party as well as government vehicle before his search. The refusal of accused was recorded by SI Sanjay Neolia as accused stated that he is illiterate. It is further the case of the prosecution that notice u/s 50 NDPS Act was served upon the accused on which accused made his signatures. Personal search of accused was conducted. One weighty transparent thelly was recovered from the right side pocket of his pant. The mouth of the thelly was tied with rubber band. Matiyala colour powder was found containing in the said thelly. On checking with the field testing kit, it was found to be heroine. On weighing, it was found to be 210 grams. It is further the case of the prosecution that two samples of 5 grams each were drawn from the recovered heroine and the same were converted into pullanda and given Mark A and B. Remaining heroine was also converted into pullanda and the same was given Mark C. Form FSL was filled and all the pullandas were sealed with the seal of 7APS NB DELHI. Same seal was affixed on the FSL form and after use, seal was given to HC Ravinder. All the pullandas and FSL form were seized. It is the case of the prosecution that rukka was prepared and it was sent to PS through HC Sushil alongwith pullanda, FSL form and carbon copy of seizure memo with direction to hand over the rukka to DO and pullandas to SHO. Case was registered and after registration of the case SI Rajnikant came at the spot who prepared the site plan. He arrested the accused and conducted his personal search. In the personal search of FIR No. 73/2015 State Vs. Mohd. Idris Page No.3 of 22 accused, notice u/s 50 NDPS Act and cash of Rs.750/ were recovered. Accused was produced before Insp.Kuldeep Singh. Two days police remand was obtained. Report u/s 57 NDPS Act regarding arrest and recovery were prepared and submitted to Insp. Kuldeep Singh. Source of supply namely Nabi Hasan and Chhotu @ Akbar could not be arrested. On 18.05.2015, sample case property was sent to FSL through Ct. Nityanand for chemical examination. Pending receipt of FSL result, chargesheet was prepared and filed against the accused u/s 21 NDPS Act. During trial, FSL result was received which confirmed that the sample contained diacetylmorphine.
2. After compliance of section 207 Cr.P.C., charge u/s 21
(b) NDPS Act was framed against the accused to which he pleaded not guilty.
3. In order to prove its case, prosecution examined 11 witnesses. PW1 is HC Ravinder Kumar. Seal after use was handed over to him. PW7 is HC Sushil Kumar. He took the rukka to PS alongwith parcels, FSL form and carbon copy of seizure memo. He got the case registered and handed over the pullandas alongwith documents to SHO. PW9 is Insp. Sanjay Neolia. He is the Ist IO of this case. He apprehended the accused and effected the recovery of contraband from his possession. They are the members of raiding party. All the three witnesses have deposed more or less the same FIR No. 73/2015 State Vs. Mohd. Idris Page No.4 of 22 as stated in para '1' of the Judgment and therefore, the same is not being repeated for the sake of brevity.
4. PW2 is ACP Ravinder Kumar Tyagi. He deposed that he was informed by Insp. Kuldeep about the secret information. He deposed that he directed the Inspector to constitute a raiding party and take legal action. He further deposed that a written report vide DD no.17 was produced by his reader in his office, the copy of the same is Ex.PW2/A which was received in his office vide diary no.1388 Ex.PW2/B. He further deposed htat on 16.05.2015, two reports u/s 57 NDPS Act regarding seizure of 210 grams of heroine and arrest of accused were received in his office by the reader and he had seen the same. The report is Ex.PW2/C. The said reports were received vide diary no.1397 Ex.PW2/D. The report regarding arrest is Ex.PW2/E which was received vide diary no. 1398 Ex.PW2/F.
5. PW3 is HC Bhoop Singh. He is the duty officer. He recorded the FIR no.73/15. The copy of FIR is Ex.PW3/A. Endorsement on rukka is Ex.PW3/B. DD no.2 is Ex.PW3/C.
6. PW4 is HC Jag Narayan. He is the then MHCM. He stated that he was called by Insp.Ravinder Kumar, the then SHO alongwith register no.19. He went to the room of SHO where three sealed pullandas Mark A, B and C having seals of 7APS NB DELHI FIR No. 73/2015 State Vs. Mohd. Idris Page No.5 of 22 and RK were handed over to him alongwith FSL form having same seals. He made entry in register no.19 at sr.no.2287 Ex.PW4/A. He further deposed that on 16.05.2015, SI Rajnikant deposited the personal search articles of accused for which he made entry no.2288 Ex.PW4/A and Ex.PW4/B. He further deposed that on 18.05.2015, he handed over one cloth parcel Mark A duly sealed alongwith FSL form to Ct. Nityanand vide RC no.632/21 for depositing in the FSL. The copy of RC is Ex.PW4/C and copy of acknowledgement is Ex.PW4/D. The carbon copy of the notice is Ex.PW4/E.
7. PW5 is Ct. Nityanand. He took the parcels to FSL Rohini vide RC no.132/21. After depositing the same there, he obtained receipt and handed over to MHCM.
8. PW6 is Ct. Rajiv Kumar. He is the then Reader to ACP N&CP. He deposed that a report u/s 42 NPDS Act was received through SHO Insp. Kuldeep Singh, which is Ex.PW2/A which he entered at sr.no.1388 Ex.PW2/B. He further deposed that on 16.05.2015, reports u/s 57 NDPS Act Ex.PW2/C and Ex.PW2/E in the office of ACP. He placed the said reports before ACP who signed the same. The copy of diary register is Ex.PW2/D and Ex.PW2/F.
9. PW8 is ACP Ravinder Sharma. He is the then SHO. He deposed that HC Sushil had handed over him three pullandas, FSL FIR No. 73/2015 State Vs. Mohd. Idris Page No.6 of 22 form and carbon copy of seizure memo. He affixed his seal of RK on the pullandas and FSL form. He called the MCHM and handed over the said pullandas, FSL form and carbon copy of seizure memo to him for depositing in the malkhana. He lodged DD no.3 Ex.PW8/A.
10. PW10 is Insp. Rajni Kant. He reached at the spot after registration of the case. He prepared the site plan Ex.PW9/E on the pointing out of SI Sanjay Neolia. He arrested the accused vide arrest memo Ex.PW1/D and conducted his personal search vide memo Ex.PW1/E. He recorded the disclosure statement Ex.PW1/F of accused. He deposited the personal search articles in the Malkhana. He prepared the special report u/s 57 NDPS Act Ex.PW2/E. He deposed that on 17.05.2015, accused made supplementary disclosure statement Ex.PW1/H. On 18.05.2015, he sent the exhibits to FSL. He collected the FSL result which is Ex. PW10/C.He also filed an application u/s 52A (2) NDPS Act Ex.PW10/E and got conducted the proceedings Ex.PW10/F. The photographs are Ex.PW10/G and CD is Ex.PW10/H.
11. PW11 is Insp. Kuldeep Singh. He is the Inspector Narcotics. He was informed by Insp. Sanjay Neolia about the secret information and he passed on the same to ACP who ordered for taking action. He further deposed that accused was produced before him on 16.05.2015 at 6.00 a.m. He further deposed that one special FIR No. 73/2015 State Vs. Mohd. Idris Page No.7 of 22 reports u/s 57 NDPS Act was produced before him which was forwarded by him to ACP concerned.
12. Statement of accused u/s 313 Cr.P.C was recorded wherein accused has stated that he is innocent. He has been falsely implicated in the present case. During those days, he used to sell bananas on the cart at Chuna Bhatti Road, Shahid Nagar, Ghaziabad UP. He was lifted by the police at 3.00 p.m and brought to Crime Branch Office and detained there till next day. Nothing was recovered from his possession and they planted some substance on him and produced him in the Court. Accused has examined DW1 Shamshuddin in his defence, who has stated that about three years ago at about 2.30 p.m., three persons came in civil uniform near their rehri and they searched Idris but nothing was recovered from him. Those persons took Idrish with them with assurance that he will be free after enquiry. When Idrish did not return till late evening, he asked the son of accused and told him that three police official had taken Idrish with them. He had gone to his house and informed the family members.
13. Arguments have been heard from the Ld. Addl. PP as also from the Ld.Counsel for accused. Ld. Addl.PP has argued that the recovery witnesses examined by the prosecution have proved the recovery of 210 grams heroine from accused Mohd. Idris. All the relevant provisions of NDPS Act have been duly complied with.
FIR No. 73/2015 State Vs. Mohd. Idris Page No.8 of 22 The witnesses have supported the prosecution case. FSL result confirms that the recovered substance was heroine. It is therefore, argued that the prosecution has been able to prove its case against the accused.
14. Ld. Counsel for accused argued that the case of the prosecution is false and fabricated. There is no compliance of mandatory provisions of NDPS Act i.e. Section 42/50 NDPS Act. It is stated that no public witness has been joined by the IO at the time of apprehension and recovery of heroin despite availability at the spot. He also submitted that Ct. Pradeep, driver of the government vehicle has not been examined in this case though he was available at the spot at the time of recovery. Log book of vehicle has not been produced which would have made the case of the prosecution more strong. It is also stated that there is delay of about three days in sending the samples to FSL. FIR has not been proved as per law as certificate u/s 65B of Evidence Act has not been proved. Ld. Counsel has pointed out the contradictions in the statements of witnesses and requested that the accused may kindly be acquitted.
15. PW1 HC Ravinder, PW7 HC Sushil and PW9 SI Sanjay Neolia are the witnesses of apprehension and recovery on which the prosecution case mainly rests. PW10 Insp. Rajnikant is the second IO. PW9 Insp.Sanjay Neolia, who is the first Investigating Officer has deposed that on 15.05.015 at about 4.45 FIR No. 73/2015 State Vs. Mohd. Idris Page No.9 of 22 p.m., a secret informer came in his office and informed that one person namely Idris, who is involved in the supply of heroine, would come at NH24 opposite Akshardham Temple Bus Stand between 6.30 - 7.00 p.m for supply of heroine to someone and after satisfying himself, he passed on the information to Insp. Kuldeep who further informed ACP. On the direction of senior officers, PW9 constituted a raiding party. He lodged DD no.17 Ex.PW9/A and handed over the copy to Insp. Kuldeep Singh for conducting proceedings u/s 42 NDPS Act. He called HC Ravinder, HC Sushil and at about 5.30 p.m proceeded to the spot in Government gypsy no. DL1CM 4228 driven by Ct. Pradeep vide DD no.18 Ex.PW/B. He took his IO bag, field testing kit and electronic weighing scale with them and reached at the bus stand opposite Akashardham temple. On the way, he requested 56 passersby at Rajghat red light and 4 passersby at NH24 to join the raiding party but they refused. The vehicle was parked at the distance of 50 meters and Ct. Pradeep was deputed with the vehicle. Raiding party was deployed. He further deposed that at about 6.25 p.m., accused Idrish was seen coming from the side of Pandav Nagar. The informer identified him from a distance of 20 meters and thereafter, left the spot. Accused came and stood at the bus stand. After 10 minutes, while he was crossing the road, he apprehended him with the help of other members of the police team. 910 passersby gathered at the spot and they were requested to join the investigation but they refused and left the spot. PW9 briefed the accused about the information and FIR No. 73/2015 State Vs. Mohd. Idris Page No.10 of 22 notice u/s 50 NDPS Act Ex.PW1/A was served. Accused was apprised about the legal rights and he was told that he can get himself searched in the presence of Magistrate or Gazetted Officer and if he wishes, they can be called at the spot. Search of police team and police vehicle was also offered but accused refused to avail his legal rights. Accused informed that he is illiterate and therefore, PW9 recorded his refusal Ex.PW1/B on notice. Accused was searched and a transparent polythene which was tied with rubber band was recovered from front right pocket of his pant. On checking, it was found containing matiyala colour powder. On testing with field testing kit, it was found to be heroine. It was weighed and its weight was found to be 210 grams. Two samples of 5 grams each were drawn, converted into pullandas and given Mark A and B. Remaining heroine was also converted into pullanda an given Mark C. Form FSL was filled and all the pullandas were sealed with the seal of 7APS NB DELHI. Same seal was also affixed on FSL form. All the articles were seized vide seizure memo Ex.PW1/C. Seal after use was handed over to HC Ravinder. He further deposed that he prepared the rukka ex.PW9/C and handed over the same to HC Sushil alongwith pullandas who got the case registered and handed over the case property to SHO. After registration of the case, SI Rajnikant came at the spot. He prepared the site pan and arrested the accused vide memo Ex.PW9/D.He arrested the accused vide arrest memo Ex.PW1/D, conducted his personal search vide memo Ex.PW1/E and recorded his disclosure FIR No. 73/2015 State Vs. Mohd. Idris Page No.11 of 22 statement Ex.PW1/F. He submitted report u/s 57 NDPS Act to Insp. Kuldeep.PW10 Insp.Rajnikant sent the case property to FSL for chemical examination. PW1 HC Ravinder and PW7 HC Sushil have deposed similarly in respect of the case of prosecution.
16. As per DD no.17 which was recorded by PW9 SI Sanjay Neolia regarding receipt of secret information revealed that accused was to come at the spot i.e. NH24, Opposite Akshardham Mandir at bus stand to supply heroine to someone. PW9 stated that accused came and stood at the bus stand. After ten minutes, while he was crossing the road, he apprehended him with the help of other members. Admittedly, none came at the spot to whom the alleged supply of heroine was to be made. Police officials did not wait for the purchaser of the heroine. None of the raiding party member stated that accused had talked to someone through mobile at the spot and thereafter, he started leaving the spot. As per secret information, it was sure that one more person would come for taking delivery of heroine. If the supply was to be made to someone, he would have come there at the spot for taking the supply. But neither anyone came nor the police officials waited for the said person. Further, PW9 stated that he recorded DD no.17 Ex.PW2/A and produced the same before Insp. Kuldeep as per provisions of NDPS Act. Thus, DD no.17 was recorded by PW9 himself. The said DD was recorded at about 5.15 p.m. Thus, the information was written in the form of DD. Since it was a DD therefore, it must have been recorded in DD FIR No. 73/2015 State Vs. Mohd. Idris Page No.12 of 22 register kept in the PS. At the relevant time, PW3 HC Bhoop Singh was working as duty officer. He was working from 8 p.m to 8.00 a.m. Information vide DD No.17 was recorded at 5.15 p.m. PW3 did not state about DD no.17 even on the basis of record. He has not produced the DD register. He deposed only about DD no.2. The prosecution has not examined the DD writer who recorded DD No.17. DD register has not been produced before the Court. Copy of DD register where the said information had been recorded could not be proved on record showing that it was recorded by PW9 himself. In view of the above, recording of DD no.17 as also the secret information is doubtful.
17. Ld. Counsel for the accused stated that the IO of this case has not associated any public witness in this case. However, Ld. Addl.PP stated that there is no need to associate any public witness as the testimonies of police officials are straight forward regarding recovery of heroine from the accused. He submitted that testimonies of police officials cannot be disbelieved. Accused was apprehended on the basis of secret information. Admittedly, there is no public witness of recovery effected from the accused and all the recovery witnesses are police officials. The place of apprehension as per site plan Ex.PW9/E NH24, Near Bus Stand, Opposite Akshardham Temple, Delhi. The time of apprehension of accused is 6.30 p.m. The month of apprehension is May. PW9 Insp. Sanjay Neolia stated that he had requested 56 passersby at Rajghat red FIR No. 73/2015 State Vs. Mohd. Idris Page No.13 of 22 light and four passersby at NH24 to join the raiding party after briefing them about the information but they refused expressing their inability and left without disclosing their names and addresses. He further stated that 910 passersby gathered at the spot and they were also requested to join the investigation but they refused and left expressing their inability and without disclosing their names and addresses. Similar is the deposition of PW1 HC Ravinder and PW7 HC Sushil Kumar.
18. The spot is a busy place being NH24. Many vehicles used to pass through the spot. It was about 6.30- 7.00 p.m when the accused was apprehended. Many public persons used to pass through the spot being busy road and admittedly public persons were present at the spot as PW9 stated that 910 passersby gathered there at the spot and they were requested to join the proceedings but they refused and left the spot without disclosing their names and addresses. As per his statement, 910 persons gathered at the spot after apprehension of the accused but they refused. As per evidence, public persons gathered at the spot after apprehension and service of notice u/s 50 NDPS Act upon the accused. Thus, public persons were present at the time of recovery effected from the accused. PW7 HC Sushil stated in cross examination that there was police post situated near the spot at the distance of 50 meters. No one was called from the said police post as no one was seen present there. Aksharham metro station is situated at the distance of 700800 FIR No. 73/2015 State Vs. Mohd. Idris Page No.14 of 22 meters from the spot. Near the spot, there is also Akshardham Metro Station as well as police post. But IO of this case has not joined any public witness from the Metro Station or any police official from the police post. IO even did not serve any notice to any of the persons who gathered at the spot and refused to join in the investigation. Accused was apprehended at about 6.30 p.m. There was enough time and opportunity to join the public persons during recovery of heroine. No notice was served to the persons gathered at the spot/passersby who refused to join nor any action taken against them on their refusal to join the investigation. Police officials reached at the place of recovery at about 6.00 pm and PW10 arrested the accused at 3.30 a.m. Thus, the police team remained at the spot for about nine hours. During this long time, no one from the public was joined though place of apprehension is a public place from where many vehicles pass through. Thus, it appears that no genuine effort was made to join the public persons in the investigation. Ld. Addl.PP has referred to the decision of Ajmer Singh Vs. State of Haryana, (2010) 3 SCC 746 arguing that failure to associate independent witnesses is not fatal to the prosecution case as long as it is shown that efforts were made and none was willing. However, it is seen that in the said decision, Hon'ble Supreme Court emphasized that it has to be shown that after making efforts the police official was not able to get the public witness associated in either raid or the arrest of the culprit. In other words, in every case, it will have to be FIR No. 73/2015 State Vs. Mohd. Idris Page No.15 of 22 examined whether serious efforts were made by the police to associate public witnesses.
19. The Hon'ble Supreme Court in Ritesh Chakraborty Vs. State of Madhya Pradesh 2006 (3) JCC (Narcotics) 150 deprecated the practice of Investigating Officer in not noting down the names of the public persons, who fail to join the investigation.
20. 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.
21. In the case of Mohd. Masoom Vs. State of NCT of Delhi, Criminal Appeal 1404/11, decided by Hon'ble Delhi High Court 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 FIR No. 73/2015 State Vs. Mohd. Idris Page No.16 of 22 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 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."
22. 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.
23. In the latest case of 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 also placed on Raj Bahadur Vs. State of Punjab 2008(4) CC Cases HC 357.
FIR No. 73/2015 State Vs. Mohd. Idris Page No.17 of 22
24. In the present case, public persons were not made to join the proceedings at the time of recovery at the spot and there seems to be no genuine efforts to join them. Hence, nonjoining of public witnesses at the time of recovery creates doubt regarding the entire proceedings being genuine.
25. In the present case, PW9 Insp. Sanjay Neolia stated that they proceeded to the spot in Government Gypsy no.DL1CM 4228 driven by Ct. Pradeep. The said Ct. Pradeep has not been cited as witness in this case nor examined by the prosecution. He is the witness who allegedly took the raiding team to the spot and he also brought the vehicle from parking place to the place of apprehension after the accused was apprehended. But prosecution has failed to examined him in this case.
26. Ld. Counsel submitted that there is no compliance of Section 50 NDPS Act in this case. Section 50 of the Act is reproduced herein below: "50. Conditions under which search of persons shall be conducted. (1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in FIR No. 73/2015 State Vs. Mohd. Idris Page No.18 of 22 Section 42 or to the nearest Magistrate.
(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub section (1).
(3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.
(4) No female shall be searched by anyone excepting a female.
[(5) When an officer duly authorised under Section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973 (2 of 1974) (6) After a search is conducted under subsection (5), the officer shall record the reasons for such belief which necessitated such search and within seventy two hours send a copy thereof to his immediate official superior]."
27. Hon'ble High Court in the matter of Dharambir Singh Vs. State, Crl. A. 658/2017, Arif Khan @ Agha Khan Vs. State of Uttranchal IV(2018) SLT 32 SC and Gurtej Singh Batth Vs. State, Crl. A.39/2015 has discussed the law about the applicability of Section 50 NDPS Act.
FIR No. 73/2015 State Vs. Mohd. Idris Page No.19 of 22
28. In view of the above referred case law, I have perused the evidence on record in the present case. PW9 Inspector Sanjay Neolia who is the investigating officer of this case stated that he briefed the accused about secret information and served him with notice u/s 50 NDPS Act, the original notice is Ex.PW1/A. He apprised the accused about his legal rights. He was told that he can get himself searched in the presence of Magistrate and Gazetted Officer and if he so wishes, the Magistrate or Gazetted Officer can be called at the spot for his search. He was also offered the search of the police team and the police vehicle. Accused refused to avail his legal rights. Refusal of accused was recorded by PW9 as the accused stated that he is illiterate. He took the formal search of accused and a transparent polythene which was tied with rubber band was recovered from the front right pocket of his pant. On checking, it was found containing matiyala colour powder which on testing with field testing kit found to be heroine. On weighing, it was found to be 210 grams. Similar is the deposition of PW1 and PW7 regarding serving of notice u/s 50 NDPS Act upon the accused. The notice is Ex.PW1/A and the refusal of accused is Ex.PW1/B.
29. PW9 stated in his statement that he told the accused about his legal rights and that he can get himself searched in the presence of Magistrate and the Gazetted Officer and if he so wishes, FIR No. 73/2015 State Vs. Mohd. Idris Page No.20 of 22 the Magistrate or Gazetted can be called at the spot for his search. He further stated that accused refused to avail all his legal rights. Perusal of Notice u/s 50 NDPS Act reveals that the accused was only advised that he can be taken to the Gazetted Officer/Magistrate while as per the spirit of section 50 of NDPS Act, accused was not to be advised but he was to be taken to the Gazetted Officer or Magistrate for conducting his search. But the IO of this case has failed to do so. In view of the observations made in Arif Khan @ Agha Khan Vs. State of Uttranchal, IV(2018) SLT 32 SC regarding applicability of Section 50 NDPS Act, it is held that the investigating agency has not complied with the mandatory provisions of Section 50 NDPS Act and thus, the entire proceedings stand vitiated.
30. In the present case, PW9 has failed to associate any public witness during apprehension and recovery from the accused. Recording of DD no.17 is doubtful. Provisions of Section 50 NDPS Act has not been complied with. Ct.Pradeep who took the raiding party to the spot has not been examined.
31. Serious punishments are prescribed under the NDPS Act and therefore stricter the punishment, stricter the mode of proof. In the case of Noor Agha Vs. State of Punjab & Anr. 2008 (3) JCC (Narcotics) 135, the Hon'ble Court held that in a case arising out of the provisions of NDPS Act the legislature has provided very FIR No. 73/2015 State Vs. Mohd. Idris Page No.21 of 22 stringent punishment. Therefore, the courts have to be extremely cautious and careful in adjudicating the cases pertaining to NDPS Act. There has to be a perfect balance and fine tuning between the interest of society and protection of statutory safeguards available to the accused.
32. In the State of Punjab Vs. Baldev Singh (1999) 3 SCC 977, the Hon'ble Supreme Court held that it must be borne in mind that severe the punishment, greater has to be taken care to see that the safeguard provided in statute are scrupulously followed.
33. In view of the aforesaid discussions, this Court finds that the case of the prosecution is doubtful. It is well settled law that benefit of doubt is always given to the accused. Accused Mohd. Idris is accordingly, acquitted u/s 21 (b) of NDPS Act. However, accused shall furnish personal bond in the sum of Rs.20,000/ with a surety of the like amount u/s 437A Cr.P.C.
Digitally signed byAnnounced in the open AJAY AJAY GUPTA
Location:
court on 03.06.2019
Karkardooma Court
GUPTA Date: 2019.06.03
16:36:42 +0530
(AJAY GUPTA)
Special Judge (NDPS)
KKD COURTS, DELHI.
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