Delhi District Court
State vs . on 28 April, 2023
IN THE COURT OF SHRI ARUL VARMA, ASJ-04 AND
SPECIAL JUDGE (NDPS) SOUTH-EAST: SAKET COURTS: NEW
DELHI
CNR No. DLSE01-004505-2017
SC No 250/2017
FIR No. 113/2017
P.S. Okhla Industrial Area
State
Vs.
Shiraj Ali Sheikh @ Hafizul Sheikh
@ Raju Mandal
S/o Sh.Khurshid Sheikh
R/o VPO-Jalakhuladas, Mir Pado,
PS Nodakhali,District Sourth
24 Parganas West Bengal ........ Accused
Date of Institution : 08.06.2017
Date of reserving the Judgment : 27.04.2023
Date of Judgment : 28.04.2023
JUDGMENT
FACTS IN BRIEF / CASE SET UP BY THE PROSECUTION
1. The facts as alleged by the prosecution, are hereby succinctly recapitulated. It was alleged that on 01.04.2017 at about 04:30 am Near DDA Forest, Kalkaji Depot AnandmaiMarg leading towards Metro Line, Ohla Phase-III New Delhi, within the jurisdiction of PS Okhla Industrial Area, the accused was apprehended while carrying one transparent plastic pouch containing heroine. It was further alleged that on weighing, it was found to be 270 grams. Thereafter, the accused was arrested, and investigation was conducted. Whereafter, the present chargesheet came to be filed.
FIR No.113/2017 State Vs. Shiraj Ali Sheikh @ Hafizul@ Raju Mandal Page No. 1/37 Digitally signed
ARUL by ARUL VARMA VARMA 2023.04.28 Date:
11:22:44 -0300 CHARGES FRAMED QUA THE ACCUSED
2. Charges under section 21 of NDPS Act, were framed qua the accused to which he pleaded not guilty and claimed trial.
EVIDENCE LED BY PROSECUTION
3. In the trial, the prosecution in support of its case, examined ten witnesses, the succinct testimonies whereof are as follows:
4. PW-1 ASI Suraj Pal, deposed that on the intervening night of 31.03.2017 and 01.04.2017, he was posted as ASI/DO from 12:00 am (midnight) to 8:00 AM in PS OIA. On that day, he had recorded DD No. 8A at about 04:45 am on the information receiving from SI Rakesh Sharma, ICPP Okhla, PhaseII mentioning that a person namely Shiraj Ali Sheikh had been apprehended alongwith smack at Maa Anandmai Marg, DDA Jungle, Kalkaji and a request was made for sending of some HC alongwith IO Kit, field testing kit and electronic weighing machine and senior officers be also informed about this information. This information was recorded by him vide DD No. 8A and thereafter, HC Ashok Kumar left the PS alongwith IO kit, electronic weighing machine and field testing kit vide DD No. 9A. On 01.04.2017, ASI Hukam Chand came to him at about 06:50 am alongwith original rukka sent by SI Rakesh Sharma on the basis of the same he got recorded the computerized FIR No. 113/17 u/s 21/61/85 NDPS Act through computer FIR No.113/2017 State Vs. Shiraj Ali Sheikh @ Hafizul@ Raju Mandal Page No. 2/37 Digitally signed by ARUL ARUL VARMA Date:
VARMA 2023.04.28 11:22:58 -0300
operator. The computerized copy of the FIR was proved as Ex.PW1/A (OSR) bearing his signatures at pointA. His endorsement on rukka was proved as Ex.PW1/B. The certificate u/s 65B IEA After recording was proved as Ex.PW1/C. All documents bore his signatures at pointA. After the registration of FIR he handed over the copy of FIR and original rukka to ASI Hukam Chand to handed over the same to SI S. P. Singh to carry out the further investigation, as per the direction of Senior Officials.
5. PW-2 ASI Surajpal, (inadvertently mentioned as PW2) deposed that on the intervening night of 31.03.2017 & 01.04.2017, he was posted as Duty Officer from 12:00 midnight to 8 am at PS OIA. On that day, at about 04:45 am, SI Rakesh informed him on telephone that he had apprehended one person namely Shiraj Sheikh Ali with illegal narcotics near DDA Forest, near Metro line, Okhla and they requested that some official may be sent there with IO kit, weighing machine and testing kit and also told him to apprise the information to some senior officers. He further deposed that he had recorded DD No. 8A regarding the same which was proved as Ex.PW2/A (OSR), bearing his signature at pointA. he had also informed SHO regarding the same. Thereafter HC Ashok was sent to the spot with weighing machine and IO kit.
6. PW-3 HC Ashok Kumar, deposed that on 01.04.2017, he was posted as FIR No.113/2017 State Vs. Shiraj Ali Sheikh @ Hafizul@ Raju Mandal Page No. 3/37 Digitally signed by ARUL ARUL VARMA Date:
VARMA 2023.04.28 11:23:08 -0300
HC in PS Okhla PhaseI, New Delhi. On that day, he was present in the police station when he was informed by the Duty Officer that SI Rakesh ICPP Okhla Industrial Area, PhaseIII, had informed vide DD no. 8A at about 4.45 a.m. that he had apprehended one person near jungle of Kalkaji Depot who was in possession of smack and he had made a request for sending of IO kit, weighting machine and field testing kit. It was further deposed that he got issued IO kit, field testing kit and electronic weighting machine from the malkhana and left police station vide DD no. 9A at about 5.00 a.m. and he reached at the spot in the jungles near Kalkaji Depot where he met with SI Rakesh, ASI Hukum Chand and one person who was in their custody. The name of the said person who was in the custody of the aforesaid police officials was revealed as Shiraj Sheikh. SI Rakesh had checked one substance of brown colour which he had taken out from one plastic panni and checked it with the field testing kit. The said substance was heroin. The said heroin was weighed with the help of electronic weighting machine. Total weight of the same was found as 270 gm. Out of which IO had drawn two samples of 5 gm each. The samples were kept in two small transparent polythene. The mouth of which were tied with the rubber band and pullandas of the same were prepared. The remaining heroin was FIR No.113/2017 State Vs. Shiraj Ali Sheikh @ Hafizul@ Raju Mandal Page No. 4/37 Digitally signed by ARUL ARUL VARMA Date:
VARMA 2023.04.28 11:23:18 -0300
kept in the same polythene. The mouth of which was also tied with the rubber band. Pullanda of which was also prepared. All the pullandas were sealed with the seal of RK. Again said - with the seal of RS. Sample pullandas were marked as A and B and the pullanda containing the remaining heroin was marked as C. FSL form was filled up. Seal after used was handed over to him. Seizure memo Ex.PW3/A bearing his signature at point A was prepared. Thereafter one rod was got recovered by accused which he had thrown in the nearby bushes. The sketch of the said rod was proved as Ex.PW3/B bearing his signature at point A was prepared and its measurement was taken, the total length of which was found to be 23 cm and its diameter was about 3 cm. The said rod was pointed and flat (chapti) from one end and there was a whole on the other side of the said rod and thereafter pullanda of the same was prepared and was sealed with the seal of RS. Seizure memo Ex.PW3/C in this regard was prepared which bore his signature at point A. Rukka was prepared by IO and was handed over to ASI Hukum Chand who was sent to PS for registration of FIR. He was also handed over the sealed pullandas containing heroin and carbon copy of seizure memo and FSL form with the directions to get the FIR registered from DO and hand over the sealed pullandas and other documents to the SHO. Further investigation of the case was entrusted to SI Surender Pal Singh who reached at the spot. He FIR No.113/2017 State Vs. Shiraj Ali Sheikh @ Hafizul@ Raju Mandal Page No. 5/37 Digitally signed by ARUL ARUL VARMA Date:
VARMA 2023.04.28
11:23:27 -
0300
prepared site plan on the pointing out of SI Rakesh and recorded his statement and he then left the spot. Thereafter, SI Surender Pal Singh interrogated the accused and arrested him vide memo Ex.PW3/D and conducted his personal search vide memo Ex.PW3/E, both bore his signature at point A. Disclosure statement of accused Ex.PW3/F bearing his signature at point A was recorded. Thereafter, accused was produced in the court and he was remanded to one day PC. The belongings of the personal search of accused was got deposited in malkhana.
7. PW-4 SI Praveen Kumar deposed that he was working as SO to ACP, Kalkaji since August, 2017. He had brought the summoned record with respect of two reports u/s 57 NPDS Act of this case which were received in the office of ACP, Kalkaji from SHO,PS, OIA. As per record brought by him, report u/s 57 NDPS Act regarding seizure of case property i.e. 270 grams of heroin forwarded by the SHO, PS, OIA was proved as Ex. PW4/A. Report u/s 57 NDPS Act regarding arrest of accused Hafizul Seikh @ Shiraj Ali Seikh forwarded by the SHO, PS, OIA was proved as Ex. PW4/B. He had brought both the original reports (OSR). He had also brought diary register of ACP office, Kalkaji of the year 2017 in which both the above said reports were proved as Ex. PW4/A and PW4/B have been diarised at Sl. No. 1176 and 1177 both dated 3.4.2017 and photo copy of the same was proved as Ex. PW4/C. (OSR) FIR No.113/2017 State Vs. Shiraj Ali Sheikh @ Hafizul@ Raju Mandal Page No. 6/37 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.04.28 11:23:35 -0300
8. PW-5 SI Hukam Chand deposed that on 01.04.2017, he was posted as ASI in, PP Okhla PhaseII, PS Okhla Industrial Area, New Delhi. On that day, he was present on night patrolling duty with Incharge/SI Rakesh on private motorcycle and were checking the patrolling staff. At about 4.30am they reached at Anand Mai Marg, Kalka Bus Depot near Metro Line and they notice that one person was going on service road towards jungle side who on seeing them, started walking swiftly and on suspicion he speed up the motorcycle and Inchage/SI Rakesh asked that person to stop but the said person did not stop and started running. Thereafter, he stopped the motorcycle and SI Rakesh chased that person and apprehended him after a chase of about of 1015 paces inside the jungle.
He also reached there. The said person was inquired who disclosed his name as Hafizul Seikh @ Shiraj Ali Seikh @ Raju Mandal S/o Sh. Khurshid Seikhg, R/o Vill. Jala Das Mir, Zila Pargana, West Bengal. The accused threw one rod type object in the bushes which he was carrying in his hands and thereafter he put his both hands into his pant pockets and on suspicion that accused may be carrying some illegal arm, he was over powered by them and his cursory search was taken by the SI. From the right side pocket of his wearing pant one polythene of white colour whose mouth was tied with a rubber band was recovered. The polythene FIR No.113/2017 State Vs. Shiraj Ali Sheikh @ Hafizul@ Raju Mandal Page No. 7/37 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.04.28 11:23:45 -0300 was opened and checked. Matiala colour powder was found in the said polythene which was smelling bitterly. The accused on inquiry told the SI that the substance recovered from his possession was smack, which he had purchased from an Afghani national in Paharganaj area for a sum of Rs. 1,30,000/ and he was going to sell the same to his friend Joginder Bhadana, resident of Harkesh Nagar village. Thereafter, the SI gave information regarding recovery of smack to DO, SHO and the senior officers. He also requested the DO to send the IO kit from malkhana through any staff. After 1 ½ hours, HC Ashok came at the spot with IO kit and handed over the same to SI. Thereafter IO SI Rakesh checked a small quantity of the recovered substance on electronic testing kit which showed it to be heroin. Thereafter, IO weighed the same which came to be 270 grams, out of which IO had drawn two samples of 5 gm each. The samples were kept in two small transparent polythene. The mouth of which were tied with the rubber band and pullandas of the same were prepared. The remaining heroin was kept in the same polythene. The mouth of which was also tied with the rubber band. Pullanda of which was also prepared. All the pullandas were sealed with the seal of RS. Sample pullandas were marked as A and B and the pullanda containing the remaining heroin was marked as C. FSL form was filled up and same FIR No.113/2017 State Vs. Shiraj Ali Sheikh @ Hafizul@ Raju Mandal Page No. 8/37 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.04.28 11:23:59 -0300 seal impression was affixed. Seal after used was handed over to HC Ashok. IO seized the case property vide seizure memo Ex.PW3/A bearing his signature at point B. Thereafter one rod was got recovered by accused which he had thrown in the nearby bushes. The sketch of the said rod was proved as Ex.PW3/B bearing his signature at point B was prepared and its measurement was taken, the total length of which was found to be 23 cm and its diameter was about 3 cm. The said rod was pointed and flat (chapti) from one end and there was a whole on the other side of the said rod and thereafter pullanda of the same was prepared and was sealed with the seal of RS. Seizure memo Ex.PW3/C in this regard was prepared which bore my signature at point B. IO prepared the rukka and handed over the same to him alongwith copy of seizure memo with direction to handover the rukka to Duty Officer and remaining papers to the SHO. He went to PS and handed over the rukka to DO and other documents to the SHO Insp. Atul Verma. After registration of FIR, further investigation of the case was entrusted to SI Surender Pal Singh who was present in the PS whom he handed over the original rukka and copy of FIR and thereafter he alongwith SI Surender reached at the spot. SI Surender Pal Singh prepared site plan on the pointing out of SI Rakesh. Thereafter, SI Surender Pal Singh interrogated the accused and FIR No.113/2017 State Vs. Shiraj Ali Sheikh @ Hafizul@ Raju Mandal Page No. 9/37 Digitally signed by ARUL ARUL VARMA Date:
VARMA 2023.04.28
11:24:07 -
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arrested him vide memo Ex.PW3/D and conducted his personal search vide memo Ex.PW3/E, both bearing his signature at point B. Disclosure statement of accused Ex.PW3/F bearing his signature at point was recorded.
9. PW6 Ct. Om Parkash deposed that he was posted at PS Okhla Indl.
Area as Munshi in support of present MHC (M) HC Sher Singh. In pursuance to the summons received in PS. He had brought original malkhana register pertaining to entry no. 2470 Dt. 01.04.2017 vide which case property of present case was deposited in malkhana. Copy of said entry was proved as Ex.PW6/A. As per record on 01.04.2017 three sealed pullandas alongwith FSL Form besides one iron rod and personal search articles were deposited in malkhana and on 08.05.2017 two sealed pullanda mark-A and B alongwith FSL From were sent FSL Rohini through SI S.P.Singh vide RC No.72/21/17 and on 08.02.2018 two parcels alongwith result from FSL were received back from FSL Rohini through Constable Jai Narain. At the relevant time of depositing of case property HC Arvind Kumar PIS No.28071349 were posted as MHC(M), PS OIA.
10.PW-7 Insp. Atul Kumar deposed that on 01.04.2017 he was posted as SHO at PS OIA. On that day at about 6.55 a.m. ASI Hukum Chand came in his office and handed over to him 3 sealed parcels/pullandas sealed FIR No.113/2017 State Vs. Shiraj Ali Sheikh @ Hafizul@ Raju Mandal Page No. 10/37 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.04.28 11:24:18 -0300 with the seal of RS and they were having the marked as MarkA, B and C. He also handed over him FSL Form alongwith one copy of seizure memo of the illegal smack which was recovered from the possession of accused Shiraj Ali. Thereafter, he made inquiries from ASI Hukum Chand and took the FIR from Duty Officer. Thereafter, MHC (M) HC Arvind was called in office and he had put his seal of "AKV" on the abovesaid parcels and on FSL Form. He also put the details of the FIR on the abovesaid parcels/pullandas, copy of seizure memo and FSL Form. MHC (M) HC Arvind came alongwith register no.19 and he handed over the abovesaid parcels/pullanda, FSL Form and copy of seizure memo to him. He had also signed in Register no. 19 and at this stage the copy of Register Ex.PW6/A (3PP) was shown to witness who had correctly identifies his signature on pointA. He had recorded a DD Entry in this regard vide DD No.12-A at 7.25 a.m. and the said DD Entry was proved as Ex.PW7/A. IO recorded his statement to the above said effect.
11.PW-8 Sh. Jitender Kumar, SSO (Chemestry), FSL, deposed that he was working as SSO since 2012 at FSL, Rohini. On 8.5.2017 two sealed cloth parcels alongwith FSL letter/forwarding letter was received in their office which was marked to him for examination. He tallied the seals on the parcel and found them intact and corresponding to the seal impression FIR No.113/2017 State Vs. Shiraj Ali Sheikh @ Hafizul@ Raju Mandal Page No. 11/37 Digitally signed by ARUL ARUL Date:
VARMA VARMA 2023.04.28 11:24:28 -0300
on the forwarding letter. He examined the material of both the said parcels. Parcel A was founding containing Ex. A i.e. brown coloured powder material stated to be heroin weighing 5.70 grams approx. with polythene pouch and rubber band. Parcel B was found containing Ex. B i.e. brown coloured powder material stated to be heroin weighing 5.65 grams approx. with polythene pouch and rubber band. He conducted examination of the material of both the exhibits by chemical, TLC, GC and GCMS methods and found that Ex. A and B were found to contain acetaminophen, diacetylmorphine, 6monocetylmorphine and acetylcodenine. Ex. A and B were found to contain diacetylmorphone 10.3% and 10.5% respectively. His detailed report in this regard was proved as Ex. PW8/A bearing his signatuare at point A. The remnants aftrer examination were sealed with seal of JK FSL DELHI and returned to the forwarding authority.
12.PW-9 Retired SI Surender Pal Singh, deposed that on 1.4.2017, he was posted as SI at PS, OIA. On that day, he was present on duty in PS. After registration of FIR investigation of this case was marked to him. During the course of investigation, duty officer handed over him copy of FIR and original tehrir. ASI Hukam Chand was also present who brought the original tehrir to the police station. Thereafter, he alongwith ASI FIR No.113/2017 State Vs. Shiraj Ali Sheikh @ Hafizul@ Raju Mandal Page No. 12/37 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.04.28 11:24:45 -0300 Hukam Chand went to the spot i.e. DDA Junge, near Kalkaji Depot, Maa Anand Mai Marg, Okhla, PhaseII, New Delhi. There he met SI Rakesh Kumar Sharma and HC Ashok Kumar. The accused was also present there in the custody of SI Rakesh Kumar Sharma. He handed over the accused to him. On the narration of SI Rakesh Kumar Sharma, he prepared site plan which was proved as Ex. PW9/A bearing his signature at point A. he made inquiry from the accused Siraj Ali. After made the inquiry, he arrested the accused in this case vide arrest memo Ex. PW 3/D, which bore the signature at Point X. he conducted the personal search of accused and recovered one mobile phone Nokia black colour alongwith cash Rs. 2,200/-. He prepared the personal memo vide Ex. PW3/E, which bore his signature at point X. He interrogated the accused and recorded his disclosure statement vide Ex. PW3/F, which bore his signature at point X. Thereafter, a case was sent to Hospital for medical examination alongwith ASI Hukum Chand and HC Ashok Kumar. After the medical examination, they brought the accused and produced before the Hon'ble Court of Sh. Lokesh Kumar Sharma, Ld. ASJ, Saket. He further deposed that he had also reached in the Court before the arrival of the accused with the above police official. He also obtained one day PC remand of accused in order to search the source of contraband. They brought the accused to the police station and lodged him with the lockup FIR No.113/2017 State Vs. Shiraj Ali Sheikh @ Hafizul@ Raju Mandal Page No. 13/37 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.04.28 11:24:55 -0300 after got him medical examine. He recorded the statement of ASI Hukum Chand and HC Ashok Kumar. On the next day, he took the accused at his instance in the area of Paharganj from where he received the contraband from some one Afgan-national. At the instance of accused, they made search of the supplier but no one could found. On the next day i.e. on 02.04.2017, he produced the accused before the Hon'ble Court and he was remanded to judicial custody by the Ld. ASJ. It was further deposed that he deposited the personal belonging of the accused with the malkhana. He prepared report u/s 57 NDPS Act regarding the investigation conducted by him and sent the same to the ACP through SHO. His report was proved as Ex. PW 9/B, which bore his signature at Point X. He himself took the sample of contraband was sent to FSL through road certificate number 72/21/17, the carbon copy of which was proved as Ex. PW 9/C, which bore his signature at Point A. Witness further deposed that he obtained the acknowledgement of the same from the FSL, Rohini. The copy of which was proved as Ex. PW 9/D, which bore his signature at Point A. So long as, the sealed parcel remained in his custody, the same was not tampered with anybody. Later on, the FSL result was obtained which was already proved as Ex. PW 8/A and filed the same in the Court with the supplementary charge-sheet.
13.PW-10 Inspector Rakesh Kumar Sharma, deposed that on 01.04.2017, he was posted as Incharge Police Post Okhla Phase-III, PS OIA. On that FIR No.113/2017 State Vs. Shiraj Ali Sheikh @ Hafizul@ Raju Mandal Page No. 14/37 Digitally signed ARUL by ARUL VARMA VARMA 2023.04.28 Date:
11:25:05 -0300 day, he alongwith ASI Hukum Chand on patrolling duty in the night in our area by a private motor-cycle. During the patrolling, at about 04:30 AM, when they were present in the area of Anand Mai Marg near Metro Line, near by Jungle Area. There they saw a person who was going towards forest and after see the police, he started walk fastly in the jungle. He asked him to stop but he did not stop and started running inside the jungle then he chased him and apprehended him inside the jungle. On inquiry, the name of the said person was revealed as Hafizul Sheikh @ Shiraj Ali @ Raju Mandal S/o Khurshid Sheikh belongs to West Bengal. While he was making inquiry, he had thrown a iron rod type object which he was carrying in the jungle. Witness suspected that he had some weapon, then he conducted the search of accused and found one polythene from the pocket of his wearing pant. The said polythene was tied with a rubber band. He opened the polythene and it was found containing some matmaila, brown colour powdery substance. The accused told him that the said substance was the 'heroin' and he further told that he had purchased the same from Pahar Ganj area from some Afgani National and he was carrying the same to Harkesh Nagar in order to sell out the same to one Joginder Bhadana. The accused further told him that he had purchased the same in the sum of Rs. 1,30,000/-. He gave information to the Duty Officer PS OIA, regarding the recovery of heroin. He also informed the SHO. He requested the DO to send some FIR No.113/2017 State Vs. Shiraj Ali Sheikh @ Hafizul@ Raju Mandal Page No. 15/37 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.04.28 11:25:14 -0300 police officials alongwith weighing machine, IO kit and field testing kit. After sometime, HC Ashok came to the spot alongwith the aforesaid items. He took out a very small quantity of the substance recovered from the accused and tested it on the field testing kit and it was revealed as heroin. Thereafter, he weighed the said substance with polythene and it was found to be 270 gm in total. Thereafter, he drew two samples of five gram each from the said substance and kept them in two small transparent polythenes and converted them into two white cloth pullandas and marked them as Mark A and B. The remaining substance was also converted into cloth parcels with the polythene and Mark C was given to it. Thereafter, he put his seal of 'RS' on all the three parcels. He filled in the FSL form and affixed his same seal 'RS' on it. He seized the said three parcels through seizure memo Ex. PW3/A, which bore his signature at Point X. The seal was handed over to HC Ashok after use. He searched the rod type object which was thrown by the accused and it was found nearby in the jungle. It was the object of iron like chenni (Iron Katra). He prepared the sketch of the same which was already proved as Ex. PW3/B, which bore his signature at Point X. He also seized the said chenni through seizure memo Ex. PW3/C, which bore his signature at Point X. Thereafter, he prepared the rukka Ex. PW10/A, which bore his signature at Point X. He handed over the rukka to ASI Hukum Chand alongwith the three parcels, FSL form and copy of seizure memo. He directed ASI FIR No.113/2017 State Vs. Shiraj Ali Sheikh @ Hafizul@ Raju Mandal Page No. 16/37 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.04.28 11:25:24 -0300 Hukum Chand to hand over the rukka to DO for registration of the FIR and the remaining items were to be handed over to the SHO for conducting the proceedings u/s 55 NDPS Act. After some time, SI S. P. Singh reached at the spot alongwith ASI Hukum Chand as after registration of the FIR, the investigation assigned to SI S. P. Singh. He handed over the documents prepared by him to the IO alongwith the accused. He apprised the IO about the proceedings conducted by him. The IO prepared the site-plan of the place of recovery at his instance. After he reached at his office, he prepared the report u/s 57 NDPS Act and sent to ACP through SHO. The carbon copy of the same was proved as Ex. PW10/B, which bore his signature at Point X.
14.The relevancy of the witnesses examined are succinctly delineated in the following tabular form:
PW NAME RELEVANCE
1 ASI Suraj Pal He was the Duty Officer who
recorded FIR Ex. PW1/A on the
basis of rukka brought by PW-5
SI Hukum Chand. He proved the
FIR Ex.PW1/A.
2 ASI Suraj He had also recorded DD No.8A
Pal( inadvertently which was proved as Ex. PW2/A.
mentioned as PW-2)
3 HC Ashok Kumar He was the recovery witness.
FIR No.113/2017 State Vs. Shiraj Ali Sheikh @ Hafizul@ Raju Mandal Page No. 17/37
Digitally
signed by
ARUL ARUL VARMA
Date:
VARMA 2023.04.28
11:25:35 -
0300
4 SI Parveen Kumar He was the SO to ACP Kalka JI
and he proved the compliance of
Section 57 NDPS Act.
5 SI Hukum Chand He was the ASI on patrolling
duty who apprehended the
accused with contraband item.
6 Ct Om Prakash He was posted at PS OIA as
Munshi and he produced the
original Malkhana Register.
7 Inspector Atul Kumar He was posted as SHO PS OIA
and received three sealed articles
with the seal of RS, copy of
seizure memo and FSL form
from PW5 Hukum Chand on
which he affixed the seal of AKV
and deposited the same in the
Malkhana after making entry in
Register no.19 in compliance of
Section 55 NDPS Act.
8 Sh.Jitender Kumar SSO He was the FSL expert who
proved his report Ex. PW8/A
whereby it was opined that the
FIR No.113/2017 State Vs. Shiraj Ali Sheikh @ Hafizul@ Raju Mandal Page No. 18/37
Digitally
signed by
ARUL ARUL VARMA
VARMA Date:
2023.04.28
11:25:46 -0300
contraband item was heroine.
9 SI Surender Pal Singh He was the 2nd IO, to whom
investigation was assigned after
registration of the FIR, who
recorded statement of witnesses,
prepared site plan, conducted his
personal search and prepared
report u/s 57 NDPS Act ie
Ex.PW9/B.
10 Inspector Rakesh He was Incharge PP Okhla
Kumar Sharma Phase III, PS OIA and he
alongwith PW5 Hukum Chand
was on patrolling duty and they
apprehended the accused with
contraband item.
STATEMENT OF ACCUSED
15.Accused was examined u/s 313 Cr.PC. In his defence, he averred that he does not know anything about this case and has been falsely implicated in this case. He deposed on 29.03.2017, at about 01:00PM his previous landlord informed him that his mother got injured and he requested him for some money. After this, he came at hospital Jeevan Jyoti alongwith FIR No.113/2017 State Vs. Shiraj Ali Sheikh @ Hafizul@ Raju Mandal Page No. 19/37 Digitally signed by ARUL ARUL VARMA Date:
VARMA 2023.04.28 11:25:56 -0300
money. When he reached there, some police officials from PS OIA apprehended him and took him to police station. He further deposed that they tortured him and demanded 20 lac rupees but he was not in a position to give them money and then they involved him in false and fabricated cae. He further deposed that he is innocent and has nothing to do with alleged incident. Further, accused did not lead any evidence in his defence.
ARGUMENTS OF LD. ADDL. PUBLIC PROSECUTOR FOR THE STATE AND LD. DEFENCE COUNSEL
16. Sh. Wasi-Ur-Rahman, Ld. Public Prosecutor for the State submitted that in this case, the compliance of Section 50 and 42 NDPS Act are not required because there is no prior information of having such contraband substance with the accused. As regards, the compliance of Section 50 of NDPS Act the same is not attracted in case of chance recovery as held in case State of Punjab Vs Balbir Singh AIR 1994 SC 1872; AIR 2004 SC 2491. During patrolling the accused was apprehended by PW-10 and he was found in possession of contraband substance. PW-10 gave the information to the police force which was recorded vide DD Ex. PW2/A and in pursuance of which, the IO kit, weighing machine and field testing kit were sent to the spot and thereafter, the proceedings of recovery were conducted. The compliance of Section 55 of NDPS Act has been duly done in the present case. The reports u/s 57 NDPS Act were also prepared FIR No.113/2017 State Vs. Shiraj Ali Sheikh @ Hafizul@ Raju Mandal Page No. 20/37 Digitally signed by ARUL ARUL VARMA Date:
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by PW-9 and PW-10 vide Ex.PW9/B and Ex.PW10/B respectively and sent to ACP and this fact has further proved by PW-4. Ld. Addl PP for State further contended that even non compliance of Section 57 NDPS Act may not vitiate the trial if it does not cause prejudice to the accused as held in Bahadur Singh Vs State of Haryana (2010) 4 SCC 44
17.It was further conteded by Ld. Addl PP for State that all the relevant material prosecution witnesses have been examined and cumulatively they have proved the case of prosecution beyond reasonable doubt that
18.It was also submitted by Ld. Addl PP for State that after the prosecution evidence, the statement of accused has been recorded u/s 313 Cr.PC. In his statement, the accused nowhere explained any circumstance proved against him and put to him during his examination. The accused also did not claim any prejudice for non compliance of any provision, if any,.
19.Lastly, Ld. Addl PP for State contended that there is no reason to discard the testimony of witnesses examined in this case. Furthermore, there is no defence taken by the accused, which can be considered at par with the prosecution evidence. Hence, the accused is liable to be held guilty for the offence he is charged with. It was further submitted by Ld. Addl PP for State that the prosecution has proved its case proved beyond reasonable doubt and thus accused ought to be convicted.
20. Per contra, Sh. M Nabi, Ld. Counsel for accused submitted that the departure entry whereby HC Ashok left the PS alongwith IO kit, FIR No.113/2017 State Vs. Shiraj Ali Sheikh @ Hafizul@ Raju Mandal Page No. 21/37 Digitally signed by ARUL ARUL VARMA Date:
VARMA 2023.04.28 11:26:16 -0300
electornic weighing machine and field testing kit ie DD no. 8A has not been exhibited from the prosecution. It was further submitted that PW-1 ASI Suraj Pal made considerable improvements in his testimony inasmuch as on 02.06.2018, he had mentioned that HC Ashok left the PS with IO Kit electronic weighing machine, however, he omitted to mention the field testing kit during his testimony on 29.09.2018. Ld. Counsel for accused also pointed out to the cross examination of PW-2 ASI Suraj Pal to contend that the witness was confronted with DD No.8A ie Ex. PW2/A wherein it was not recorded that inforamtion was given to senior officials.
21.Ld. Counsel further submitted that none of the police officials made any effort to join the public persons during investigation. It was further submitted that PW-3 HC Ashok, who was recovery witness, could not depose qua the reagent or its colour used for testing contraband item. Further, PW-3 could not even depose as to the colour appearing on the testing kit. Ld. Counsel thus submitted that PW-3 is a planted witness.
22.Ld. Counsel for accused further submitted that police witnesses have not clarified as to the timing and sequence of preparation of documents. Further, it was contended that there has been non compliance of Section 57 NDPS Act inasmuch as neither the ACP was summoned as witness nor was PW-4 SI Praveen Kumar, the SO to the ACP at the relevant period of time. Ld. Counsel for accused further contend that evem PW-5 Hukum FIR No.113/2017 State Vs. Shiraj Ali Sheikh @ Hafizul@ Raju Mandal Page No. 22/37 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.04.28 11:26:25 -0300 Chand did not tell the colour of IO kit nor the chemical used by IO in testing the contraband. It was further submitted that there has been non compliance of Section 55 of NDPS Act inasmuch much the MHC(M) HC Sher Singh was not examined as witness and PW-6 Ct Om Prakash, who was Munshi at PS Okhla Industrial Area, deposed that he had no personal knowledge of the exhibited Malkhana Register entry no 2740 dated 01.04.2017 and that it had not been recorded in his presence.
23.Ld. Counsel for accused furter submitted that it has nowhere been recorded in the deposition of SHO/Inspector Atul Kumar that he had proceeded to the spot for investigation. Ld. Counsel for accused there are discrepancies in the case of prosecution. Thus, accused ought to be acquitted.
STATEMENT OF REASONS FOR THE DECISION A. APPREHENSION OF ACCUSED AND RECOVERY OF ALLEGED CONTRABAND FROM HIM
24. The manner in which the accused was apprehended, and the manner in which recoveries have been effected from him has been clearly elucidated by the prosecution witnesses. It was brought to the fore that PW-5 ASI Hukum Chand and PW-10 Inspector Rakesh Kumar Sharma were on patrolling duty in the night on their private motorcycle on 01.04.2017, and at about 04:30 AM in the area of Anandmai Marg,Near Metro Line, Near A jungle Area, they saw the accused, who was going towards the FIR No.113/2017 State Vs. Shiraj Ali Sheikh @ Hafizul@ Raju Mandal Page No. 23/37 Digitally signed by ARUL ARUL Date:
VARMA VARMA 2023.04.28 11:26:35 -0300
forest and who picked up his pace when he was spotted by the police party. Thereafter, the two police officials chased the accused and apprehended him. The accused revealed his name as Hafizul Sheikh @ Shiraj Ali and during inquiry, he threw an iron rod type object which he was carrying with him. Therafter, PW-10 Inspector Rakesh Kumar conducted the search of the accused and found one polythene from the pocket of his wearing pant, which was tied with rubber band, and upon opening the same, it was found containing some matmaila, brown colour powdery substance. Thereafter, this information was given by PW-10 to the duty officer, PS OIA and also to the SHO. Therafter, PW-3 HCAshok Kumar came to the spot alongwith IO kit and tested the substance recovered from the accused, and it was revealed to be heroine. Upon weighing the substance with polythene, the same was found to be 270 grams in total.
25.Thereafter, two samples of 5 grams each from the said substance were drawn and they were kept in two small transparent polythenes mark A and mark B. The remaining substance was converted into cloth parcels with polythene and mark C was given to it. PW-10 put his seal of RS on all the three parcels, and he filled the FSL form and affixed his seal RS on it. Thereafter, the said 3 parcels were seized through seizure memo Ex.PW3/A. Therafter, all the remaining proceedings viz registration of FIR, arrest of accused etc were conducted. FIR No.113/2017 State Vs. Shiraj Ali Sheikh @ Hafizul@ Raju Mandal Page No. 24/37
Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.04.28 11:26:44 -0300
26. The contention of Ld. Counsel for the accused that no public witnesses were joined nor notice to any public witness was given to join the proceedings, pales into insignificance in light of the fact that it would be difficult to find any public person at such odd hours. Significantly, in this context, it would be useful to peruse the following extracts of Ajmer Singh v State of Haryana (2010) 3 SCC 746:
"19 The learned counsel for the appellant has submitted that the evidence of the official witnesses cannot be relied upon as their testimony, has not been corroborated by any independent witness. We are unable to agree with the said submission of the learned counsel. It is clear from the testimony of the prosecution witnesses PW 3, Paramjit Singh Ahalwat, DSP, Pehowa; PW 4, Raja Ram, Head Constable and PW 5, Maya Ram, which is on record, that efforts were made by the investigating party to include independent witness at the time of recovery, but none was willing. It is true that a charge under the Act is serious and carries onerous consequences. The minimum sentence prescribed under the Act is imprisonment of 10 years and a fine. In this situation, it is normally expected that there should be independent evidence to support the case of the prosecution. However, it is not an inviolable rule. Therefore, in the peculiar circumstances of this case, we are satisfied that it would be travesty of justice, if the appellant is acquitted merely because no independent witness has been produced. 20 We cannot forget that it may not be possible to find independent witness at all places, at all times. The obligation to take public witnesses is not absolute. If after making efforts which the court considered in the circumstances of the case reasonable, the police officer is not able to get public witnesses to associate with the raid or arrest of the culprit, the arrest and the recovery made would not be necessarily vitiated. The court will have to appreciate the relevant evidence and will have to determine whether the evidence of the police officer was believable after taking due care and caution in evaluating their evidence."
27.Thus, the testimony of police witnesses cannot be disregarded merely on account of non joining of public witnesses. FIR No.113/2017 State Vs. Shiraj Ali Sheikh @ Hafizul@ Raju Mandal Page No. 25/37
Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.04.28 11:26:53 -0300 B. COMPLIANCE OF SECTION 55 OF THE NDPS ACT BY THE SHO
28.At this juncture, it would be apt to refer to Section 55 of the NDPS Act:
"SECTION 55. Police to take charge of articles seized and delivered.- An officer-in -charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in-charge of the police station."
29.In the present case, Inspector Atul Kumar, Officer In charge of PS OIA was examined as PW-7. He categorically deposed that on 01.04.2017, at about 06:55 AM, PW-5 ASI Hukum Chand came to his office and handed over to him 3 sealed parcels sealed with seal of RS having marked as Mark A, B and Mark C, FSL form and copy of seizure memo. Thereafter, MHC(M) HC Arvind was called in the office alongwith Register no.19. It was deposed by PW-7 that he put the seal of AKV on the abovesaid parcels and FSL form, handed over the same to the MHC(M) alongwith the seizure memos. This witness proved the entry of the above by identifying his sigatures on point A in Register no. 19 ie Ex.PW6/A (3PP). He further averred that he had recorded DD entry in this regard vide DD no. 12 A and the said DD entry was proved as Ex.PW7/A.
30. Thus, as is evident from the above deposition the prosecution evidence clearly discloses that the sealed articles were produced before Officer In- charge of the police station, that he had put his seal over those articles FIR No.113/2017 State Vs. Shiraj Ali Sheikh @ Hafizul@ Raju Mandal Page No. 26/37 Digitally signed by ARUL ARUL Date:
VARMA VARMA 2023.04.28 11:27:03 -0300
and there were sent for safe custody. Thus, there is due compliance of Section 55 of NDPS Act in terms of Ashok Kumar Vs State of Haryana AIR 2000 SC 3474 C. REPORT UNDER SECTION 57 OF NDPS ACT
31.It would be apposite to refer to Section 57 of the Act, which is reproduced hereunder:
"Whenever any person makes any arrest or seizure, under this Act, he shall, within forty eight hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior."
32.The legislative intent behind Section 57 of the Act, has been delved upon in Megha Ram v State of Rajasthan 1997 Cri LJ 3091 in the following words:
"Section 57 comes into play in the post-arrest period. It enjoins upon the officer, arresting an accused and effecting recovery of a narcotic drug or psychotropic substance from his possession, to inform his superior officers of the actions taken by him. Compliance of this provision is meant to serve a dual purpose. On the one hand it affords an element of authenticity to the action taken by him in the cause of preventing commission of offences against the NDPS Act. The consciousness of compliance of this section puts, in a sense, a sort of check on the arbitrary exercise of his powers of arrest and seizure by him under the Act and creates a sense of responsibility in him to act in accordance with relevant provisions of law so as not to be undermined in the estimation of his superior officers with regard to the discharge of his duties as a responsible officer. On the other hand the communication of the information apprises the superior officers of the position of offences against the NDPS Act and also of the steps taken and compliance of the relevant rules made by their subordinates in the administration of the said Act. If the officer has acted as a vigilant and duty conscious officer in the pre-arrest-stage of the proceedings and his evidence discloses satisfactory compliance of the mandatory provisions relating to that stage of proceedings and inspires confidence in Court, non-compliance or compliance with FIR No.113/2017 State Vs. Shiraj Ali Sheikh @ Hafizul@ Raju Mandal Page No. 27/37 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.04.28 11:27:13 -0300 some irregularity of certain provisions relating to post-arrest period would not be fatal to the prosecution case as that would be a case of an offence already committed and concluded. The purpose of compliance of S. 57 is to afford further reliability to the action already taken by the subordinate, officer. In that sense of the matter compliance of S. 57 is not mandatory but for that reason its importance in the scheme of the Act cannot be minimised (see State of Punjab v. Balbir Singh)"
33.Ld. Counsel for accused had contended that there was non compliance of Section 57 of NDPS Act inasmuch as the ACP concerned was not examined as a witness. However, this contention cannot be countenanced. Pw-10 Inspector Rakesh Kumar Sharma had categorically deposed that he had prepared the report u/s 57 NDPS Act and sent the same to the ACP concerned through the SHO. He proved the carbon copy of the same as Ex.PW-10 /B which bore his sigature at point X. It was further established on record from the testimony of PW-9 that the report prepared u/s 57 NDPS Act was sent to the ACP through the SHO.PW-9 SI Surender Pal Singh proved his report as Ex.PW9/B bearing his sigatures at point X.
34. The receipt of the above reports in the office of the ACP has been proved by PW-4 SI Praveen Kumar, who brought the summoned record with respect to the reports u/s 57 NDPS Act which were received in the office of the ACP Kalka JI from SHO PS OIA. This witness categorically deposed qua the report u/s 57 NDPS Act regarding seizure of case property ie 270 grams of heroine and proved the same as Ex.PW4/A. FIR No.113/2017 State Vs. Shiraj Ali Sheikh @ Hafizul@ Raju Mandal Page No. 28/37 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.04.28 11:27:23 -0300 Further, the report u/s 57 NDPS Act regarding arrest of the accused was proved as Ex.PW4/B. This witness brought the diary register of ACP Officer Kalka Ji of the year 2017 wherein the entry of the above reports are reflected at serial no 1176 and 1177, both dated 03.04.2017. The said diary was proved by this witness as Ex.PW4/C. Thus, there was in toto compliance of Section 57 of NDPS Act.
D. COMPLIANCE OF SECTION 50 NDPS ACT
35.To adjudicate this issue, it would be profitable to refer to Section 50 of the Act, which reads as thus:
"Section 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 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)"
36.The safeguards mentioned in Section 50 are intended to serve a dual purpose- to protect a person against false accusation and frivolous charges as also to lend credibility to the search and seizure conducted by an empowered officer.
37. In the present, it is not a case emanating from some secret information,rather it is a case of a chance recovery. De hors the above conclusion, Ld. Addl PP for State had contended that the present case was FIR No.113/2017 State Vs. Shiraj Ali Sheikh @ Hafizul@ Raju Mandal Page No. 29/37 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.04.28 11:27:32 -0300
not one where compliance of Section 50 NDPS Act was mandatory. In this context, it would be apt to reproduce the following extracts of the Hon'ble Supreme Court in Dayalu Kashyap Vs State of Chattishgarh 2022 SCC Online SC 334 wherein it was held as thus:
"6. In the conspectus of the facts of the case, we find the recovery was in a polythene bag which was being carried on a Kanwad. The recovery was not in person. Learned counsel seeks to expand the scope of the observations made by seeking to contend that if the personal search is vitiated by violation of Section 50 of the NDPS Act, the recovery made otherwise also would stand vitiated and thus, cannot be relied upon. We cannot give such an extended view as is sought to be contended by learned counsel for the appellant."
38. Significantly, the law qua compliance of Section 50 NDPS Act in cases of chance recovery is no longer res integra. It was laid down in Jagjeet (supra) "10. Before considering the legality of notice, it is required to be seen whether the accidental or chance recovery of narcotic drugs during search would attract the provisions of Section 50 of the NDPS Act.
11. Substantially similar issue came up for consideration before Hon'ble Supreme Court in State of Himachal Pradesh (supra), where the accused was travelling in a bus which was stopped for "traffic check" by the police officials. During checking, it was noticed that the accused was concealing something under his clothes and thereafter on checking, he was found to be concealing a polythene envelope containing charas. The Sessions Court convicted the accused by observing that the accused was in conscious possession of narcotics substance and the recovery was a chance recovery, accordingly, provisions of Section 42 of the Act relating to search and seizure were not applicable since the police officials had no prior information about the possession of charas by the accused. However, the High Court acquitted the accused on the ground that though the search conducted was a random search but the police officers had a positive suspicion that the accused might be carrying contraband. Therefore, compliance of Section 50 of the Act was mandatory. Since FIR No.113/2017 State Vs. Shiraj Ali Sheikh @ Hafizul@ Raju Mandal Page No. 30/37 Digitally signed by ARUL ARUL Date:
VARMA VARMA 2023.04.28 11:27:41 -0300
no option was given to the accused, therefore, his conviction and sentence was not justified. State preferred an appeal against the acquittal of the accused and the broad submission was that the recovery of charas from him was a chance recovery. As such, in view of the Constitution Bench decision in State of Punjab v. Baldev Singh, 1999 SCC (Cri) 1080 which endorsed the view taken in State of Punjab v. Balbir Singh, 1994 SCC (Cri) 634, the personal search of accused resulting in recovery of contraband did not violate Section 50 of the Act. Hon'ble Supreme Court extracted para 25 of Baldev Singh's case which reads as follows:-
"(1) If a police officer without any prior information as contemplated under the provisions of the NDPS Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offences as provided under the provisions of Code of Criminal Procedure and when such search is completed at that stage Section 50 of the NDPS Act would not be attracted and the question of complying with the requirements thereunder would not arise. If during such search or arrest there is a chance recovery of any narcotic drug or psychotropic substance then the police officer, who is not empowered, should inform the empowered officer who should thereafter proceed in accordance with the provisions of the NDPS Act. If he happens to be an empowered officer also, then from that stage onwards, he should carry out the investigation in accordance with the other provisions of the NDPS Act."
12. Thereafter it was observed by the Supreme Court that the expression "chance recovery" has not been defined anywhere and its plain and simple meaning seems to be a recovery made by chance or by accident or unexpectedly. It is true that the respondent behaved in a suspicious manner which resulted in his personal search being conducted after he disembarked from the bus. However, there is no evidence to suggest that before he was asked to alight from the bus, the police officers were aware that he was carrying a narcotic drug, even though that area may be one where such drugs are easily available. At best, it could be said that the police officers suspected the respondent of carrying drugs and nothing more. Mere suspicion, even if it is "positive suspicion" or grave suspicion cannot be equated with "reason to believe". These are two completely different concepts. It is this positive suspicion, and not any reason to believe, that led to the chance recovery of charas from the person of respondent. Similarly, the positive suspicion entertained by the police officers cannot be equated with prior information. The procedure to be followed when there is FIR No.113/2017 State Vs. Shiraj Ali Sheikh @ Hafizul@ Raju Mandal Page No. 31/37 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.04.28 11:27:50 -0300 prior information of the carrying of contraband drugs is laid down in the NDPS Act and it is nobody's case that that procedure was followed, let alone contemplated. Applying this to the facts herein, it is clear that the police officers were looking for passengers who were travelling ticketless on the bus in question on the highway and nothing more. They accidentally or unexpectedly came across drugs carried by a passenger (the respondent). This can only be described a recovery by chance, since they were neither looking for drugs nor expecting to find drugs carried by anybody. In view of Baldev Singh, it was not necessary for the police officers to comply with the provisions of Section 50 of the Act. As such, the appeal was allowed. E. DEPOSIT OF EXHIBITS IN FSL FOR FORENSIC EXAMINATION AND FSL REPORT.
39. The sanctity of chain of custody qua deposit of Exhibits in FSL from the Malkahan was also duly proved by the prosecution. PW9 SI Surender Pal Singh deposed that he had taken the sample of contraband item to the FSL through road certificate no 72/21/27. This witness proved the copy of road certificate ie Ex. PW9/C and identified his signatures at point A. The witness further avowed in his examination in chief that he obtained the acknowledgment of the same from FSL vide Ex.PW9/D bearing his sigatures at point A. This fact is corroborated by the deposition of PW-6 Ct Om Prakash who deposed that as per record, on 01.04.2017, three sealed pullandas alongwith FSL form and one iron rod were deposited in the Malkhana and on 08.05.2017, two sealed pullandas marked A and B alongwith FSL form were sent to FSL Rohini through PW-9 SI Surender Pal Singh vide RC no. 72/21/17. The witness further deposited the on FIR No.113/2017 State Vs. Shiraj Ali Sheikh @ Hafizul@ Raju Mandal Page No. 32/37 Digitally signed by ARUL ARUL VARMA Date:
VARMA 2023.04.28 11:27:59 -0300
08.02.2018, two parcels alongwith result from FSL were received back from FSL Rohini through Ct. Jay Narayan. The relevant Malkhana Register in this regard was proved as Ex.PW-6/A. PW-9 SI Surender Pal Singh had also deposed that so long the sealed parcels remained in his custody the same were not tampered with by anybody.
40. The FSL report Ex.PW8/A was proved by PW8 Jitender Kumar SSO, Chemistry, FSL Rohini, New Delhi, who deposed that on 08.05.2017, two clothes sealed parcel alongwith FSL letter/forwarding letter were received in the office which was marked to him for examination. It was deposed by this witness that parcel A was found to contain 5.7 grams heroine and parcel B was found to contain 5.65 grams heroine. This witness categorically deposed that upon conducting examination of the material of both the exhibits by chemical, TLC, GC, and GCMS methods, they were found to contain inter alia Diacetylmorphine. Merely because the witness did not remember quantity taken for the purpose of examination in this case and the fact that he had not annexed the worksheet prepared during examination, would not be sufficient to doubt the veracity of his report. The witness clearly deposed that relevant scientific procedures were adopted and thereafter only the conclusions as mentioned in Ex.PW8/A were arrived at. Thus, the factum of contraband item being Heroine was cogently established by this witness. FIR No.113/2017 State Vs. Shiraj Ali Sheikh @ Hafizul@ Raju Mandal Page No. 33/37
Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.04.28 11:28:08 -0300 F. FAILURE TO EXPLAIN CIRCUMSTANCES APPEARING AGAINST THE ACCUSED
41.It was contended by the State that the accused did not avail the opportunity to explain the circumstances appearing in the evidence against him, and only put forth a mere bare denial or replied to the accusations by merely stating that 'it is incorrect'. He could not explain recovery of contraband items from him. The accused did not even put forth a plea of alibi. He only averred in his defence that on 29.03.2017, at about 01:00PM his previous landlord informed him that his mother got injuries and he requested him for some money. After this, he came at hospital Jeevan Jyoti alongwith money. When he reached there, some police officials from PS OIA apprehended him and took him to police station. He further deposed that they tortured him and demanded 20 lac rupees but since he was not in a position to give them money, therafter, they involved him in this false and fabricated cae. He further deposed that he is innocent and has nothing to do with alleged incident.
42.During the course of arguments, Ld. Counsel for accused had sort to highlight certain contradictions in the testimonies of police witnesses. It was submitted that the recovery witnesses did not remember the weight of the testing kit, the colour of the chemical used or the name of the chemical that was put on the kit to find out the nature of the contraband item. These contentions pale into insignificance in light of the categorical FIR No.113/2017 State Vs. Shiraj Ali Sheikh @ Hafizul@ Raju Mandal Page No. 34/37 Digitally signed by ARUL ARUL Date:
VARMA VARMA 2023.04.28 11:28:18 -0300
finding by the FSL ie report Ex.PW8/A where the contraband item was found to contain inter alia Diacetylmorphine. Thus, the contradictions and discrepancies sought to be highlighted by the Ld. Counsel for the accused fall in the realm of minor inconsistencies, and do not shake the case of the prosecution.
43.There is a presumption u/s 54 of the NDPS Act which lays down that in trials under the NDPS Act, it may be presumed that the accused has committed an offence, unless and until the contrary is proved. The expression' unless and until the contrary is proved', clearly imposes the burden of proving that possession of prohibited substance is legal, or that he was not so found in possession, is on the accused himself. In this case, neither the presumption could be rebutted, nor could the accused explain the circumstances appearing in evidence against him.
44. Furthermore, nothing could be elicited in the testimony of the prosecution witnesses, and nothing therein could be controverted by the accused. The veracity of the testimony of the witnesses was cogent and credible, and complete reliance can be placed upon them. In this context, it would be pertinent to reproduce the following extracts of Jagjeet Singh Vs State (2015 )219 DLT 199 "All these witnesses were subjected to lengthy cross-
examination, however, nothing material could be elicited to discredit their testimony. It has further come in their statements that some independent persons were tried to be joined, however, none agreed. Ordinarily, FIR No.113/2017 State Vs. Shiraj Ali Sheikh @ Hafizul@ Raju Mandal Page No. 35/37 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.04.28 11:28:27 -0300 the public at large show their disinclination to come forward to become the witness. If the testimony of the police officer is found to be reliable and trustworthy, the Court can definitely act upon the same. The Court cannot disbelieve the testimony of police officials solely on the presumption that a witness from the department of police should be viewed with distrust. This is also based on the principle that quality of the evidence weights over the quantity of evidence. These aspects have been highlighted in State of UP v. Anil Singh, 1989 SCC (Cri) 48; State (Govt. of NCT of Delhi) v. Sunil, 2001 SCC (Cri) 248; Ramjee Rai v.
State of Bihar, (2007) 2 SCC (Cri) 626; Kashmirilal v. State of Haryana, (2014) 1 SCC (Cri) 441. Appreciating the evidence on record on the anvil of the aforesaid principles, there is no acceptable reason to discard the testimony of the official witnesses which is otherwise reliable and trustworthy."
CONCLUSION
45.Ergo, in view of the reasons hereinabove discussed in extenso, this Court is of the considered view that the prosecution has proved beyond reasonable doubt that the accused Shiraj Ali Sheikh @ Hafizul @ Raju Mandal was found in possession of 270 grams heroine on 01.04.2017 at about 04:30 am Near DDA Forest, Kalkaji Depot AnandmaiMarg leading towards Metro Line, Ohla Phase-III New Delhi, and is therefore convicted for the offence punishable under Section 21 (c) of NDPS Act.
46.Further, in consonance with the provisions of Section 40 of the NDPS Act, the name and place of business and residence of the convict, nature of the contravention, the factum of the accused being convicted, be published in two English and two Vernacular newspapers and in news websites. Accordingly, copy of this order be sent to the DCP FIR No.113/2017 State Vs. Shiraj Ali Sheikh @ Hafizul@ Raju Mandal Page No. 36/37 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.04.28 11:28:36 -0300 concerned, to do the needful.
47. Put for arguments on quantum of sentence on 09.05.2023 Announced in the open court on 28.04.2023 Digitally signed by ARUL ARUL Date:
VARMA VARMA 2023.04.28 11:28:44 -0300
(ARUL VARMA) ASJ-04 & Spl. Judge (NDPS) South-East District Saket Courts, New Delhi FIR No.113/2017 State Vs. Shiraj Ali Sheikh @ Hafizul@ Raju Mandal Page No. 37/37