Delhi District Court
Dri vs Aftab Khan & Ors. Page No. 1 Of 45 on 22 December, 2018
IN THE COURT OF SH. RAJESH KUMAR SINGH ,
SPECIAL JUDGE;NDPS SOUTH DISTRICT, SAKET
Case No. 6768/2016
Old SC No 12A/13/2013
CNR No. DLST01002412013
U/s 29, 21 (c) r/w Section 29 and 22 (c) of NDPS Act
Directorate of Revenue Intelligence (DRI), ..........complainant
New Delhi
Through:
Sh. Deepak Khatri
Intelligence Officer,
versus
Aftab Khan ..........accused no. 1
s/o late Sh. Iyyaz Khan
r/o C143/144B, Rampayari Camp
Lal Kuan, PS Pul Prahladpur, New Delhi
Niamatullah ..........accused no. 2
s/o late Sh. Allahdad
r/o Three Ada, Kandhar, Afghanistan.
Local Address H. No. 8, 1st Floor,
right side, Church Road, Bhogal, New Delhi
Asadullah ..........accused no. 3
s/o Sh. Abdul Khalid
r/o Awala Naya Kandhar, Afghanistan.
Local address H. No. 8, 1st Floor,
right side, Church Road, Bhogal, New Delhi
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Case No. 6768/2016
Idrish Ahmed ..........accused no. 4
s/o Sh. Fateh Mohd.
R/o Nama Naya, Muslim Chowk,
Kandhar, Afghanistan.
Local address H. No. 8, 1st Floor,
right side, Church Road, Bhogal, New Delhi
Date of Institution : 26th July 2013
Date of conclusion of arguments : 19th November 2018
Date of decision : 22nd December 2018
J U D G M E N T
Brief facts of the case:
1.1 The complaint was filed by Sh. Deepak Khatri Intelligence Officer alleging commission of offences u/s 21,22,25 & 29 NDPS Act 1985 (hereinafter referred to as the Act). On 24.12.2012, at 03:00pm, a secret information was received by Sh. I. S. Sahni, Intelligence Officer, DRI (HQ), New Delhi. He reduced the information in writing and it reads as : "Today, I have received information from a reliable source that one person named Aftab residing at C143 B, Rampayari Camp, Lal Kaun, Delhi is engaged in possession, transportation and dealing of narcotic drugs and psychotropic substances. Some people of Afghan origin also frequently visit his aforesaid residence for preparation of Methaqualone, a psychotropic substance. This is for your information and initiating appropriate action as deemed fit urgently."
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1.2 The secret information was put up before Sh. B. K. Banerjee,
Asstt. Director. He discussed the information with Sh. I. S. Sahni and marked it to Sh. Deepak Khatri/IO for taking appropriate action under the Act. Sh. Deepak Khatri acknowledged the marking by putting his signature on information at 03:30pm. Sh. Deepak Khatri organized a raiding team. A lady officer was also joined. Sh. B. K. Banerjee Asstt. Director also accompanied the team to the designated place. Two public witnesses namely, Sh. Rashid Ali s/o Mohd. Hafiz Sharif r/o 110B, Rampayari Camp, Lal Kuan, PS Pul Prahlad Pur and Sh. Ram Prasad s/o late Sh. Leela Singh r/o 192A Rampayari Camp, Lal Kuan, PS Pul Prahlad Pur were called and they appeared at about 07:40pm. They joined the proceedings. 1.3 The accused Aftab Khan disclosed that the premises was composed of properties bearing no. C143 B and C144 B. The front rooms, kitchen and toilet were part of C143 B whereas the last four rooms were C 144 B. Accused no. 2 to 4 were found sitting in the last room of the premises. Notices u/s 50 of the Act were served upon all accused. The accused Niamatullah had disclosed that he and the accused Asadullah understood little bit of Hindi but the accused Idrish Ahmad knew only Pushto language. He also disclosed that the accused Asadullah was illiterate whereas he and Idrish Ahmad could sign. The answers on the Notices u/s 50 of the Act were scribed by the accused Aftab Ahmad. The mobile phone found from the DRI vs Aftab Khan & ors. Page no. 3 of 45 Case No. 6768/2016 accused Aftab Ahmad, the mobile phone and the documents found from the accused Niamatuallh were taken into possession for further investigation. Nothing incriminating was found in the personal search of the accused persons. In the room in which accused no. 2 to 4 were sitting, two bags were found. One contained 24 packets having off white/pink granules/powder. The other bag contained 2 packets having similar substance. Some packing material, LPG stove, gas cylinder, mixer/grinder and silver coloured pot (bhagona) were also found. The substance of the 26 packets tested positive for Methaqualone. The packets were given mark A to Z. The packets having mark J and K were kept in one bag and the other packets were kept in the other bag. On search of the room occupied by the accused Aftab Khan, one bag containing 12 packets, some empty polythene bags and a weighing scale was recovered. The 12 packets were given mark AA to AL and the contained white/off white coloured powder/granule. The accused Aftab Khan disclosed that the powdery/granular/lump substance recovered from his room was the unfinished product and the weighing scale was used to measure the substance for mixing in a definite ratio. All above mentioned articles were seized vide panchnama dated 24.12.2012 which is Ex. PW1/F. The detailed inventory is provided in the annexures PW1/F1 to F4. On the spot, 38 samples were drawn in duplicate and were given mark A1 to AL1 and A2 to AL2. Test Memos were prepared. All articles were sealed with the seal of DRI vs Aftab Khan & ors. Page no. 4 of 45 Case No. 6768/2016 DRI10 and paper slips containing signatures of the public witnesses and the accused were affixed below the seals. The gross weight of the seized substance in 38 packets was found to be 38.701 kg.
1.4 Accused were brought to DRI office. Statement of the accused Aftab Khan was recorded u/s 67 of the Act. The said statement is Ex. PW1/H. Statements of the accused no. 2 to 4 were also recorded u/s 67 of the Act with the help of an interpreter Sh. Mahender Sharma. The accused persons refused to sign their statements. Search authorization Ex. PW9/A was issued by Sh. B. K. Banerjee, Asstt. Director in favour of Sh. Vinod Kumar IO to conduct the search of the premises bearing no. 8 first floor, right side, Church road, Bhogal, New Delhi. The accused no. 2 to 4 had disclosed that they were residing at the said address. Search of the premises was conducted in presence of public witnesses Sh. N. K. Singh and Sh. Kamal Prakash. The accused Idrish Ahmad had also been taken along and he had opened the door of the premises. The passports of the accused no. 2 to 4 were not found. Accused no. 4 Sh. Idrish Ahmad disclosed that the passports might have been taken away by Sh. Hamid Ullah, who was also residing there and had duplicate key of the premises. During search copy of tenant verification form, copy of FRRO registration form and copy of the passport of accused no. 4 were found. Panchnama Ex. PW9/B was prepared which was signed by the accused, Sh. Vinod Kumar IO and the public witnesses. All accused were DRI vs Aftab Khan & ors. Page no. 5 of 45 Case No. 6768/2016 arrested on 26.12.2012 and they were got medically examined at RML Hospital. Case property was deposited in the godown at NCH on 28.12.2012. The 38 set of first samples were sent to CRCL for examination and it was requested that samples be also tested for presence of Heroin in addition to Methaqualone. The first report Ex. PW2/B dated 21.02.2013 disclosed that samples having identification mark A1, B1, D1, F1 to V1 answered positive for Methaqualone whereas the other nine samples having identification mark C1, E1, W1 to Z1 and AA1 to AC1 answered positive for Methaqualone as well as for Diacetylmorphine (Heroin). The percentage of Heroin was also mentioned. On the basis of percentage, the quantity of Heroin worked out to 958.495 grams. The remnant samples were again sent to the CRCL for ascertaining the percentage of Methaqualone and report Ex. PW2/F dated 31.05.2013 was submitted by CRCL wherein the percentage of Methaqualone in all 38 samples was mentioned.
1.5 Letters were written to mobile service providers to provide the CDRs and the other documents pertaining to the mobile phone of the accused Aftab and Niamatullah as well as the mobile phone of Moosa, whose name was disclosed by the accused Aftab as the person who used to supply the raw material and receive the finished product. In his statement u/s 67 of the Act, the accused Aftab had disclosed that he used to talk to Moosa on his mobile phone number 09167916340. Vodafone sent the required DRI vs Aftab Khan & ors. Page no. 6 of 45 Case No. 6768/2016 information in respect of this number vide letter Ex. PW35/A. The number was found registered in the name of one Sh. Amanullah Khan r/o Masjid Seth Chawl, Pratap Nagar Marg, Bhandup, Mumbai. Summon was sent to Sh. Amanullah Khan but he was not served as the address was not correct. The CDR showed conversation between mobile number 09167916340 and mobile number 08595393014 of the accused Aftab Khan. From the accused Niamatullah, one PAN Card, Voter ID card, driving licence and RC of a santro car were also recovered. The D/L and the RC were obtained at the address of 80A, Bharat Nagar, Delhi. RC was in the name of one Sh. Ramesh Chand. Sh. Ramesh Chand was summoned and examined u/s 67 of the Act. He disclosed that in the year 2007, his daughter Ms. Jyoti eloped with the accused Niamatullah and married him. The vehicle was purchased by Niamatuallh. The electoral registration office reported that the Voter ID card number NEC 1454402 was not issued to the accused Niamatuallh. To obtain the PAN Card, the accused Niamatuallah had submitted a certificate dated 05.12.2012 from M/s Anil Consultancy to the effect that he had been working as driver with them for three months. The firm was not found to be existing at the given address. Name of one Sh. Ratan Mandal with mobile number 9650455750 was mentioned on the letter head of M/s Anil Consultancy. He could also be not served for his examination u/s 67 of the Act. Letters were written to Airtel and Aircel for documents in respect of the DRI vs Aftab Khan & ors. Page no. 7 of 45 Case No. 6768/2016 SIMs found in the mobile phone of the accused Niamatullah but the same were not supplied by the mobile service providers till filing of the complaint. Smt. Menka Sharma, landlady of house no. 8, first floor, right side, Church road, Bhogal, New Delhi could also be not served for her examination u/s 67 of the Act. However, she was examined by the prosecution during its evidence.
1.6 The accused Aftab Khan, Niamatuallh, Asadullah and Idrish sent their retraction applications Ex. PW1/D1 to D4 from the jail. All the retraction applications were received by Learned Predecessor of this Court on 09.01.2013. DRI filed replies to the retraction applications also. The Charge 2.1 Charge was framed against all four accused persons vide order dated 25.10.2013. All of them were charged u/s 29,21 (c), 22 (c) of the Act. The accused Aftab Khan was additionally charged u/s 25 of the Act. 2.2 The charge u/s 29, 21 (c) and 22 (c) of the Act states that on 24.12.2012, the accused persons alongwith one Moosa and Hamid Ullah (who could not be arrested) entered into and were part of a criminal conspiracy to manufacture and dealing in contraband substances like Methaqualone and Heroin etc. or to commit an offence punishable Chapter IV of the Act. Thereby all of them committed offence punishable u/s. 29 of the Act. Secondly, on 24.12.2012, some time after 8 pm, in the premises no.
DRI vs Aftab Khan & ors. Page no. 8 of 45 Case No. 6768/2016 C143B and 144B, Rampayari Camp, Lal Kuan, Pul Prahlad Pur, Delhi in furtherance of the criminal conspiracy, they were found to be in possession of 8.761 Kg. of Heroin, which a narcotic drug. By possessing the said quantity of Heroin in contravention of Section 8(C) of the Act, they committed offence punishable u/s. 21 (C) read with Section 29 of the Act. Thirdly, on the above mentioned time and place, in furtherance of the criminal conspiracy, they were found to be in possession of 29.940 Kg of Methaqualone which is psychotropic substance. They were in possession of the psychotropic substance in contravention of Section 8(C) of the Act and thereby they committed the offence punishable u/s. 22 (C) read with Section 29 of the Act. 2.3 The separate charge against the accused Aftab Khan u/s. 25 of the Act states that on and before 24.12.2012, he being the owner or occupier or having control over premises bearing no. C143B and C144B Rampayari Camp, Lal Kuan, Pul Prahlad Pur, knowingly permitted the said premises to be used by the coaccused no. 2 to 4 for manufacturing and storage etc. of narcotic drugs and psychotropic substances like Heroin and Methaqualone etc., the possession and manufacturing of which is an offence punishable under the Act. Thereby the accused Aftab Khan committed the offence punishable u/s. 25 of the Act.
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Prosecution Evidence
3.1 In order to prove the charges against the accused persons,
prosecution has examined 26 witnesses. Initially prosecution evidence was closed on 02.01.2017 after examination of 25 witnesses. Statement of the accused persons was recorded u/s. 313 Cr.P.C. SI Deepak Kumar, Incharge Police Post, Jungpura, PSHazrat Nizamuddin was examined as DW1 and the matter was adjourned for final arguments. During the final arguments, it was noticed that examinationinchief of PW3 Sh. Rajesh Sundariyal was deferred on 22.11.2013 as certain relevant documents were not on record. Ld. SPP for DRI had sought time to move appropriate application to bring on record the documents. Inadvertently, this was not done and prosecution evidence was closed without completing the examination of PW3. The prosecution moved application u/s. 311 Cr.P.C. dated 09.03.2018. By way of this application, the prosecution sought permission to place on record additional documents, recalling of PW3 Sh. Rajesh Sundariyal to complete his examination and to examine Sh. Virender Razdan as a prosecution witness. The application was opposed by the accused persons. The application was allowed by this Court vide order dated 02.04.2018. Thereafter, examination of PW3 was completed and Sh. Virender Razdan was examined as PW26. The additional documents were exhibited as Ex.
DRI vs Aftab Khan & ors. Page no. 10 of 45 Case No. 6768/2016 PW3/B, Ex. PW3/I and PW26/A. Statement of the accused persons was again recorded u/s. 313 Cr.P.C. 3.2.1 PW1 Sh. Deepak Khatri, Intelligence Officer, DRI, is the complainant and Investigating Officer of the case. 3.2.2 PW2 Sh. V.P. Bahuguna, Assistant Chemical Examiner,
CRCL, New Delhi was the Assistant Chemical Examiner at CRCL, Pusa, New Delhi on 26.12.2012. He deposed that on that day on direction of Sh. V.P. Sharma, Chemical Examiner, Narcotic Section, he received 38 sealed sample packets brought by the DRI officer with the forwarding letter and the test memos in duplicate. Receipt Ex. PW2/A was issued. The samples were diarized vide diary no. 193 dated 26.12.2012. Under the supervision of Sh. Mahesh Kumar, Chemical Examiner, he examined the samples. All samples tested positive for Methaqualone. Out of the 38 samples, nine samples also tested positive for Heroin apart from Methaqualone. The final analysis report Ex. PW2/B was issued under the signature of Sh. Mahesh Kumar, Chemical Examiner. He issued the short analysis report Ex. PW2/C in section 2 of the test memo. On 08.05.2013, the 38 samples were again received in CRCL and they were marked to him by Dr. Mahesh Kumar, Chemical Examiner. Receipt Ex. PW2/D was issued to DRI towards acknowledgement of receipt of the samples. The said samples were the remnant samples which had been returned to DRI by CRCL after the first analysis. The seals of CRCL DRI vs Aftab Khan & ors. Page no. 11 of 45 Case No. 6768/2016 were intact on the samples. The remnant samples were examined and final analysis report Ex. PW2/F was issued under the signature of Dr. Mahesh Kumar. In this report the percentage of Methaqualone in all 38 remnant samples was mentioned. The remnant samples were exhibited as Ex. P1/1 38, the paper slips which were pasted on one side of the envelopes containing the samples, were exhibited as Ex. P2/138. 3.2.3 PW3 is Sh. Rajesh Sundariyal. He deposed that on 28.12.2012, he was working as Incharge, Valuable Godown, New Custom House, IGI Airport, New Delhi. On that day, Sh. Ajay Bhasin, Intelligence Officer produced sealed parcels of the case property with forwarding letter and inventory memo on the direction of the Superintendent, he received the case property vide stock entry no. 12/51213 dated 28.12.2012 Ex. PW3/B and gave the acknowledgement Ex. PW3/A. With the permission of the Deputy Commissioner (Disposal) Custom Preventive, the case property was handed over by him to PW26 Sh. Virender Razdan on 08.01.2013. He had received the case property on 28.12.2012 as Sh. Virender Razdan was on earned leave. The copy of the note sheet containing the reason for receiving the case property by him and the permission of the Deputy Commissioner was exhibited as Ex. PW3/1.
3.2.4 PW4 is Sh. Vinod Badola, Peon, DRI, HQ. He deposed that on 08.05.2013, on direction of Sh. J.S. Kandhari, Deputy Director, he DRI vs Aftab Khan & ors. Page no. 12 of 45 Case No. 6768/2016 deposited 38 samples to CRCL and the receipt Ex. PW2/D was issued by PW2 Sh. V.P. Bahuguna. On 12.3.2013, he had taken the summon for M/s. Anil Consultancy but the address could not be traced. On local inquiry, it was found that the said firm did not exist at the particular place. He submitted his report in this regard on the summon Ex. PW4/A. 3.2.5 PW5 is Sh. Raj Pal Singh, SIO. On 18.06.2013, he was posted as IO at DRI, HQ. He recorded the statement of the public witness Sh. Ram Prasad (PW18) u/s. 67 of the Act. The statement was tendered before Sh. Deepak Khatri and it is Ex. PW1/P1. He had issued the summons for Sh. Ratan Mandal and Ms. Menka Sharma Ex. PW5/A and PW5/B respectively. The summons were returned unserved and the postal envelopes were exhibited as Ex. PW5/C and Ex. PW5/D. 3.2.6 PW6 is Dr. Shahid Murtaza. On 26.12.2012, he was posted as CMO, Casualty, RML Hospital. He conducted the medical examination of the accused persons and issued medical examination reports Ex. PW6/A to Ex. PW6/D. 3.2.7 PW7 is Sh. I.S. Sahni, Intelligence Officer. He deposed that on 24.12.2012, he received the secret information Ex. PW1/T and he had put up the same before Sh. B.K. Banerji.
3.2.8 PW8 is Dr. Mahesh Kumar, Chemical Examiner, CRCL, Pusa, New Delhi. He had issued the final analysis report Ex. PW2/B. On DRI vs Aftab Khan & ors. Page no. 13 of 45 Case No. 6768/2016 08.05.2013, the remnant samples were received in CRCL vide covering letter Ex. PW4/D and the second final analysis report Ex. PW2/F was also issued under his signature.
3.2.9 PW9 is Sh. Vinod Kumar, Intelligence Officer. He conducted the search at House No. 8, Church Road, Bhogal, New Delhi on 25.12.2012 in pursuance of search authorization Ex. PW9/A. The recovered documents Ex. PW9/C1 to C4 were resumed vide panchnama Ex. PW9/B. He deposed that the search was conducted in presence of the accused Idrish Ahmad and the two panch witnesses. The accused had opened the door o the house with the keys which were in his possession.
3.2.10 PW10 is Sh. Ajay Bhasin, Intelligence Officer. He deposed that on 26.12.2012, Sh. B.K. Banerji handed over to him authority letter for depositing the case property at New Custom House. He also received 38 samples in intact condition with test memos. He prepared the deposit/ inventory memo. He obtained the seal of DRI from Sh. R. Roy on 26.12.2012 for affixing the same on the deposit memo. Entry in this regard was made in seal movement register Ex. PW1/Q. On 26.12.2012, he deposited the samples at CRCL against forwarding letter Ex. PW10/A. The case property was deposited in New Custom House on 28.12.2012.
3.2.11 PW11 is Sh. R. Roy, SIO. He deposed that on 24.12.2012, he
was working as SIO at DRI, HQ, New Delhi. PW1 Sh. Deepak Khatri
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requested him for the DRI seal as he wanted to conduct a search at a house at Rampayari Camp, Lal Kuan, Delhi. The seal was given by him to PW1. The seal was returned on 25.12.2012. Entries were made in the seal movement register Ex. PW1/Q. He was also part of the raiding team. He participated in the raid on 24.12.2012. The notices u/s. 50 of the Act Ex. PW1/B to E were served upon the accused persons in his presence. The recoveries were made in his presence from the room in which accused no. 2 to 4 were sitting. Thereafter, he left the spot in connection with some other assignment and returned to DRI office on 25.12.2012 at about 11:30 am. He accompanied PW9 Sh. Vinod Kumar for search of House No. 8 at Bhogal. After arrest of accused Aftab Khan, he informed wife of the accused by telegram Ex. PW11/A. The report u/s. 57 of the Act Ex. PW1/M was submitted to him by PW1 Sh. Deepak Khatri. He wrote letter Ex. PW11/B to NSDL for verification of the PAN card of accused no. 2 and the reply Ex. PW11/C (Colly.) was received from NSDL. He also wrote letter dated 23.05.2013 Ex. PW11/D to the Electoral Registration Officer to which reply Ex. PW11/E was received. He had also written letter to the Nodal Officer of Bharti Airtel Ltd. for providing the subscriber details of mobile no. 9650455750. Reply Ex. PW11/F was received with documents. 3.2.12 PW12 is Sh. Deepak Garg, Additional Director General, G.I., DRI, HQ. On 26.12.2012, he wrote letter Ex. PW12/A to the Joint Secretary, DRI vs Aftab Khan & ors. Page no. 15 of 45 Case No. 6768/2016 MEA, New Delhi regarding arrest of accused no. 2 to 4 as they were involved in the seizure of Methaqualone.
3.2.13 PW13 is Sh. J.S. Kandhari. He was posted as Deputy Director, Intelligence, DRI, HQ. On 08.05.2013, he issued the letter Ex. PW4/DA to the Chemical Examiner, CRCL for determining the percentage purity of Methaqualone in the remnant 38 samples and forwarded the samples to CRCL through PW4 Sh. Vinod Badola. The test report Ex. PW2/F was received by him on 18.06.2013 and he marked the same to Sh. R. Roy, IO (PW11). He also initialed the report at point A. 3.2.14 PW14 is Sh. Ramesh Chand Sharma. He is father of Ms. Jyoti. He appeared before DRI in pursuance of summon Ex. PW1/M issued by Sh. Deepak Khatri and tendered his statement Ex. PW1/M1. RC of the Santro car no. DL2CM8775 is in his name. Copy of the RC was exhibited as Ex. PW1/M2. RC, PAN Card and driving license were recovered from accused Niamatullah as already mentioned above. The RC and the DL bear the address of PW14. He identified the accused Niamatullah in the Court and also his photograph on the PAN card as well as the DL. Copy of the DL was exhibited as Ex. PW1/M2. He deposed that his daughter Ms. Jyoti left the home in the year 2007 and married the accused Niamatullah. The Santro car was purchased by Ms. Jyoti in 2011 in the name of PW14. The accused Niamatullah had made the payment for the car.
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3.2.15 PW15 is Sh. B.K. Banerji. On 24.12.2012, he was posted as
Assistant Director, G.I. Section, DRI, HQ, New Delhi. His role has already been described by the other official witnesses discussed above. He was also part of the raiding team. The execution report Ex. PW1/S was submitted to him by PW1 Sh. Deepak Khatri. He had issued the forwarding letter dated 26.12.2012 Ex. PW15/A (Marked as Mark PW10/A earlier) for deposit of case property. He had written letters Ex. PW15/B, B1 to B3, PW15/C to G to the mobile service providers. He wrote letter Ex. PW15/H to the Income Tax authorities in respect of the accused Niamatullah. He had sent letter Ex. PW15/J to DRI, Mumbai Zonal Unit for service of Sh. Amanullah, in whose name the mobile connection number 9167916340 had been issued by Vodafone. This number had been disclosed by the accused Aftab in his statement u/s. 67 of the Act as the number of Moosa. The letter received by him from Vodafone was marked as Mark PW15/A. Enclosures to the letter were marked as Mark PW15/B. The letter received by him from RTO Sheikh Sarai was marked as Mark PW15/C and the enclosures were marked as Mark PW15/D. 3.2.16 PW16 is Sh. Mahadeo Goit, Intelligence Officer, DRI, HQ. On 24.12.2012, he was posted at DRI, HQ, New Delhi. He was part of the raiding team, which conducted the search at the house of accused Aftab Khan on 24.12.2012. He had prepared the annexures PW1/F1 and F2 to the DRI vs Aftab Khan & ors. Page no. 17 of 45 Case No. 6768/2016 panchnama Ex. PW1/F dated 24.12.2012. He remained with the team throughout the search and returned to the office with the accused and the seized substance. He issued the summons Ex. PW16/A and Ex. PW16/B u/s. 67 of the Act to the accused Niamatullah and Idrish Ahmad. Contents of the summons were explained to the accused by the accused Aftab Khan. On 25.12.2012, Sh. B.K. Banerji (PW15) introduced him to the interpreter Sh. Mahender Sharma. He recorded the statement of the accused Niamatullah and Idrish u/s. 67 of the Act with the help of the interpreter. The statements are Ex. PW16/C and D. Both accused refused to sign their statements. Endorsement to this effect was made by him and the interpreter on the statements.
3.2.17 PW17 is Smt. Menka Sharma. She is the owner of Flat No. 8, Right side portion, Church Road, Jungpura, Bhogal, New Delhi. She deposed that she had let out the flat to the accused Idrish Ahamd on 19.10.2012. She produced the police verification report containing the original photograph of the accused Idrish Ahmad. Photocopy of verification report and formC were already exhibited as Ex. PW9/C1 and C2. She identified the photocopy of the rent agreement already marked as Mark PW11/A. The original tenant verification report brought by her was taken on record as Ex. CW1. On query of the Court, she stated that she had given the premises on rent to the person whose photograph was affixed on Ex. CW1.
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The photograph is of the accused Idrish Ahmad.
3.2.18 PW18 is Shri Ram Prasad. He is one of the panch witnesses
of the search of the premises of the accused Aftab Khan conducted on 24.12.2012. At the time of the raid, he had provided his address as C192A, Rampayari Camp, Lal Kuan, PSPul Prahlad Pur, Delhi. While deposing before the Court, he mentioned his house number as C140 instead of C 192A. He was asked as to how he received the summon Mark PW18/A which had the address as C192A. He stated that he was standing near his house C140. A cyclist came and handed over the summon to him. He identified the accused Aftab Khan in the Court. He deposed that he was called by some DRI officer to the house of accused Aftab Khan but did not remember the date and the time. He claimed that nothing happened in his presence. He also claimed that he was asked to sign on some papers. Some of the papers were written and some were blank. He admitted his signatures on the search warrant Ex. PW1/A, on the notices Ex. PW1/B to E u/s. 50 of the Act, the test memos Ex. PW1/R and Ex. PW2/C, panchnama Ex. PW1/F and the annexure Ex. PW1/F1 and F2, the summon Ex. PW1/P sent to him u/s. 67 of the Act and his statement Ex. PW1/P1. He also identified his signatures on the paper slips EX. P4, P31, P36, P53 and P57. He resiled from his statement u/s. 67 of the Act Ex. PW1/P1. He stated that he was not told by the officers that search had to be conducted at the house of the DRI vs Aftab Khan & ors. Page no. 19 of 45 Case No. 6768/2016 accused Aftab Khan. He claimed that he had been called at around 1:30 am and asked to sign on some documents. He was crossexamined by Ld. SPP for DRI with the entire statement u/s. 67 of the Act and he denied everything. His attention was drawn to portion X to X of Ex. PW1/P1. He was directed by the Court to write the said portion in the Court for comparison. He wrote the portion X to X and it was taken on record as Ex. PW18/CZ. He admitted that the did not make any complaint against alleged obtaining of his signatures by DRI officers on blank papers in the midnight at the residence of Aftab Khan. He had not brought any document to show that his residence was C140. He identified his signatures on the sample packets Ex. P2/1 to P2/38. 3.2.19 PW19 is Sh. Rashid Ali. He is the second panch witness of the search conducted at the residence of the accused Aftab Khan on 24.12.2012. He deposed that in the month of December in the night at about 1212:30 am, he was called by some government officers. They told him that they had conducted a raid at the house of Aftab and they wanted him to accompany them to the house of the accused Aftab. He went with them. Sh. Ram Prasad was standing inside the main gate of the house of the accused. Fourfive other persons were also present there. After making this statement, he identified the accused no. 2 to 4. He admitted his signatures on the documents but did not support the prosecution regarding the manner in which the recoveries were made and the documents were prepared. He was DRI vs Aftab Khan & ors. Page no. 20 of 45 Case No. 6768/2016 crossexamined by Ld. SPP for DRI. In his crossexamination by Ld. SPP, he admitted that the accused Aftab Khan had opened the door. The DRI officers introduced themselves by showing their identity cards and informed the accused Aftab Khan about the purpose of their visit. His examinationin chief was partly recorded on 21.04.2016 and in the said deposition, he admitted the presence of accused no. 2 to 4 in the house of accused no. 1 Aftab Khan as mentioned above. However, in his crossexamination by Ld. SPP for DRI on 22.04.2016, he changed his version and stated that on the day of incident, he had seen three afghan nationals in the vehicle standing outside the house of Aftab Khan.
3.2.20 PW20 is Sh. N.K. Singh. He is one of the panch witnesses of the search conducted at House No. 8, Church Road, Bhogal on 25.12.2012. He was also crossexamined by Ld. SPP for DRI as in his examinationin chief, he did not disclose the entire facts related to the search dated 25.12.2012. PW21 is Sh. Kamal Prakash. He is the second panch witness of search conducted at House No. 8, Church Road, Bhogal on 25.12.2012. 3.2.21 PW22 is Sh. Harjeet Panwar, Head Clerk, Sheikh Sarai Transport Authority. He was examined in respect of DL No. 0320120321558 in the name of the accused Niamatullah. He placed on record letter Ex. PW22/A. Computer printout of the driving license was placed on record as Ex. PW22/B. He identified the signature of the then MLO Sh.
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Nand Gopal on the letter Mark PW15/C. This letter was exhibited in his
statement as Ex. PW22/C and the enclosures to the letter were exhibited as Ex. PW22/D. 3.2.22 PW23 is Smt. Sheela Devi, SIO, DRI, HQ. She was part of raiding team on 24.12.2012.
3.2.23 PW24 is Sh. K.N. Kharke. He was the Assistant Electoral Registration Officer, Kalkaji from May 2012 to 31.03.2016. He confirmed that the letter Ex. PW11/D was received by his office for verification of voter ID Card no. NEC1454402 in the name of accused Niamatullah. He deposed that he verified the voter ID Card from the record. It was found that the voter ID Card had not been issued by the office of Electoral Registration Officer, Kalkaji. He identified the report in this regard which has already been exhibited as Ex. PW11/E. 3.2.24 PW25 is Sh. Changdeo Haribhau Godse, Alternate Nodal Officer, Vodafone, Mumbai. He was examined in respect of mobile no. 9167916340. He confirmed that the letter Mark PW15/A and the enclosure Mark PW15/B had been issued by his office. These documents were exhibited in his statement as Ex. PW25/A and Ex. PW25/B respectively. 3.2.25 PW26 is Sh. Virender Razdan. He was examined by the prosecution in pursuance of the liberty granted u/s. 311 Cr.P.C. vide order dated 02.04.2018 as already mentioned above. He was the Inspector, DRI vs Aftab Khan & ors. Page no. 22 of 45 Case No. 6768/2016 Disposal, Valuable Godown on 28.12.2012. He deposed that he was on earned leave up to 31.12.2012. He returned to his duty on 01.01.2013. He came to know that in his absence the case property of this case had been deposited in the other godown. With the permission of the Deputy Commissioner, the case property was transferred to his godown by PW3 Sh. Rajesh Sundariyal. He exhibited the relevant entry in the valuable godown register as Ex. PW26/A. Statement of the accused u/s. 313 Cr.P.C.
4.1 Statement of the accused Aftab Khan was recorded u/s. 313 Cr.P.C. on 11.07.2017. After examination of PW3 and PW26 in pursuance of the order dated 02.04.2018, his statement u/s. 313 Cr.P.C. was recorded again on 27.04.2018. He denied all evidence put to him. He stated that he is innocent. In the early morning of 25.12.2012, the DRI officers knocked his door and he was requested to accompany them to DRI office for some inquiry. He agreed and went to the DRI office. Three persons were already present there in a room. He was also confined in the same room with the said three persons. The DRI officers alleged that he was doing drug trafficking. His family history was obtained by use of force and his signatures were obtained on various blank, semiwritten and written papers. He also stated that he could not make the complaint to the Court at the time of his production for the first time as he had been threatened by the DRI officers DRI vs Aftab Khan & ors. Page no. 23 of 45 Case No. 6768/2016 against doing so. He exhibited his retraction application as Ex. 1/D1. He did not opt for leading evidence in his defence.
4.2 Statement of the accused Idrish Ahmad was recorded u/s. 313 Cr.P.C. on 11.07.2017. After examination of PW3 and PW26 in pursuance of the order dated 02.04.2018, his statement u/s. 313 Cr.P.C. was recorded again on 27.04.2018. He denied all evidence put to him. He stated that he has been falsely implicated in this case. On 24.12.2012, he was present at his House No. 8, Church Road, First Floor, Bhogal, Delhi. At about 6 pm, some persons knocked at his door and introduced themselves as DRI officers. They wanted him to come to DRI office for some inquiry. He was frightened. He requested the DRI officers to allow him to take along some persons known to him and they agreed. He took the DRI officers to the residence of Asadullah and Niamatullah. Both of them accompanied him and the DRI officers. In the DRI office, their mobiles phones were taken and they were confined in a room. On the next day they brought one more person and alleged that he (Idrish Ahmad) was doing drug trafficking. His family history was obtained by use of force and his signatures were obtained on various blank, semiwritten and written papers. He also stated that he could not make the complaint to the Court at the time of his production for the first time as he had been threatened by the DRI officers against doing so. From the jail, he sent his retraction application with the help of other Afghan nationals, who DRI vs Aftab Khan & ors. Page no. 24 of 45 Case No. 6768/2016 knew Hindi language. He exhibited his retraction application as Ex. 1/D4. He did not opt for leading evidence in his defence.
4.3 Statement of the accused Asadullah was recorded u/s. 313 Cr.P.C. on 11.07.2017. After examination of PW3 and PW26 in pursuance of the order dated 02.04.2018, his statement u/s. 313 Cr.P.C. was recorded again on 27.04.2018. He denied all evidence put to him. He stated that he has been falsely implicated in this case. On 24.12.2012, he was present at his House No. A26, 4 Lane, Bhogal, Delhi. At about 6 pm, some persons knocked at his door. On opening the door, he saw Md. Idrish and the DRI officers. Md. Idrish told that the DRI officers had come to make some inquiry and he had come to him as he did not know Hindi and English languages. He also did not know Hindi and English languages. Therefore, he went to the house of Niamatullah with Idrish and the DRI officers. After reaching the house of accused Niamatullah, all three of them were taken to DRI office. Despite request, no interpreter was provided. They were illegally kept in the office. On the next day they brought one more person and alleged that he (Asadullah) was doing drug trafficking. His family history was obtained by use of force and his signatures were obtained on various blank, semiwritten and written papers. He also stated that he could not make the complaint to the Court at the time of his production for the first time as he had been threatened by the DRI officers against doing so. From the jail, he sent his DRI vs Aftab Khan & ors. Page no. 25 of 45 Case No. 6768/2016 retraction application with the help of other Afghan nationals, who knew Hindi language. He exhibited his retraction application as Ex. 1/D3. He did not opt for leading evidence in his defence.
4.4 Statement of the accused Niamatullah was recorded u/s. 313 Cr.P.C. on 11.07.2017. After examination of PW3 and PW26 in pursuance of the order dated 02.04.2018, his statement u/s. 313 Cr.P.C. was recorded again on 27.04.2018. He denied all evidence put to him. He stated that he has been falsely implicated in this case. On 24.12.2012, he was present at his House No. 28, Church Lane, Bhogal, Delhi. At about 6 pm, some persons knocked at his door. On opening the door, he saw Md. Idrish, Asadullah and some other persons. Later on he came to know that the said other persons were DRI officers. He was requested to accompany as Idrish and Asadullah did not know Hindi and English languages. He accompanied Idrish and Asadullah. They were taken to DRI office in official vehicle and they were confined in a room over the night. Their mobile phones were taken. On the next day, another person was brought by the DRI officers and they alleged that he (Niamatullah) was doing drug trafficking. Despite request, interpreter was not provided. His family history was obtained by use of force and his signatures were obtained on various blank, semiwritten and written papers. He also stated that he could not make the complaint to the Court at the time of his production for the first time as he had been DRI vs Aftab Khan & ors. Page no. 26 of 45 Case No. 6768/2016 threatened by the DRI officers against doing so. From the jail, he sent his retraction application with the help of other Afghan nationals, who knew Hindi language. He exhibited his retraction application as Ex. 1/D2. He opted for leading evidence in his defence.
Defence Evidence 5.1 As mentioned above, only the accused Niamatullah opted for defence evidence. He summoned DW1 SI Deepak Pawar, Incharge Police PostJungpura, PSHazrat Nizamuddin. Accused Niamatullah had placed on record carbon copy of his statement dated 25.12.2012 made by Ms. Rehana. According to him Ms. Rehana is his wife. The carbon copy of his statement has stamp of Police PostJangpura. Ms. Rehana allegedly made the statement that she was residing at House NO. 28, Church Lane, Bhogal, new Delhi for about 1½ months as tenant and she is permanent resident of Afghanistan. Her husband does business of clothes and she visits Delhi once or twice a year. On 24.12.2012, at about 6 pm, she was present at her residence with her husband Niamatullah and the children. Asadullah knocked the door of her house. He had come with another friend called Pehalwan, who was also from Afghanistan. They took his husband along with them. On being asked all three of them said that they would return in about two hours. While they were going, her son Najib saw that all three of them were made to sit in a white colour gypsy by 78 persons who appeared to be DRI vs Aftab Khan & ors. Page no. 27 of 45 Case No. 6768/2016 police officers. The gypsy had a red beacon light. Niamatullah did not return till the time of making of complaint. His mobile phone and the mobile phone of Asadullah were switched off. She had tried to search them with the help of Ms. Zardana, wife of Asadullah but could get any clue of them. She requested that search be conducted to find out her husband and his friends. 5.2 DW1 deposed that all complaints received up to 31.12.2012, had been destroyed vide order no. 322595/HAR/SED dated 29.02.2016. Copy of the order was filed as Mark DW1/A. DW1 also placed on record a certificate Ex. DW1/B under signatures wherein it is stated that the records up to 31.12.2012 had been destroyed in pursuance of the above mentioned order and that the record of the complaint dated 25.12.2012 was not available in the PS as well as in the police post.
5.3 The accused Niamatullah marked the carbon copy of the statement of Ms. Rehana as Mark DB.
Arguments 6.1 Ld. SPP for DRI argued that the prosecution has proved the charges against all accused beyond reasonable doubt. Presence of the accused Niamatuallh, Asadullah and Idrish at the house of the accused Aftab at the time of the raid is proved beyond all reasonable doubt. PW19 Rashid Ali who is one of the panch witnesses tried to resile from his statement u/s 67 of NDPS Act but his statement also confirms the presence of the three DRI vs Aftab Khan & ors. Page no. 28 of 45 Case No. 6768/2016 accused at the house of accused Aftab though, the accused have taken a false defence that they were apprehended from their residence and falsely implicated in the present case. In his examinationinchief dated 21.04.2016, PW19 stated that all accused who were correctly identified by him in the Court, were present in the veranda of the house of the accused Aftab when he opened the door. In his crossexamination by her on 22.04.2016 he stated that he had seen the three accused (Afghan Nationals) in a government vehicle outside the house of the accused Aftab. The above mentioned statements confirm presence of the three accused at the house of the accused Aftab. Both panch witnesses i.e. PW19 Rashid Ali and PW18 Ram Prasad had voluntarily tendered their statements u/s 67 of NDPS Act in which they admitted the entire proceedings and recovery. 6.2 The notices u/s 50 of NDPS Act were validly served upon all accused. The contents of the notice were explained by Niamatuallh to the accused Asadullah and Idrish. Their replies were recorded at their request by the accused Aftab. Absence of interpreter at the time of the raid did not cause any prejudice to the accused. Even the Court had taken the help of the accused Niamatuallh in explaining the deposition of PW12 to accused Asadullah and Idrish on 27.11.2014. The allegation of the accused that they were forced to make the statements u/s 67 of NDPS Act is not believable. Nonexamination of the interpreter Mr. Mahender Sharma, through whom the DRI vs Aftab Khan & ors. Page no. 29 of 45 Case No. 6768/2016 statements of the accused Niamatuallh, Asadullah and Idrish were recorded u/s 67 of NDPS Act has no consequence. The fact that the accused denied to sign their statements, shows that contents thereof were explained to them by the interpreter.
6.3 All witnesses of raid are consistent. They have correctly explained the lay out of the house of the accused Aftab. There is no contradiction in the statements of PWs which may go to the root of the matter. In the FSL result Ex. PW2/B , the colour of all samples is mentioned as offwhite whereas in the panchnama the seized substance is of white, off white and pink colour. The difference in the colour could be due to difference in lighting. This issue was also never raised by the accused and no questions in this regard were put to PW2 V. P. Bahuguna, Asstt. Chemical examiner or to PW8 Dr. Mahesh Kumar, Chemical examiner, CRCL. The samples were promptly sent to CRCL in intact condition. The FSL result Ex. PW2/B cannot be doubted. The subsequent FSL result Ex. PW2/F which specifies the percentage of Methaqualone can also not be doubted. Adverse presumption has to be drawn against the accused persons for taking false defence. Ld. SPP also submitted that there is no merit in the issue raised by Ld counsel for accused Asadullah regarding noncompliance of the provisions u/s 42 of NDPS Act.
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6.4 Ld. Counsel for the accused persons argued that prosecution
has not able to prove beyond reasonable doubt that the three accused were arrested from the house of accused Aftab and the recoveries were made as alleged by the prosecution. As per the secret information, the three accused had gone to the house of accused Aftab for preparation of Methaqualone but no evidence of manufacturing of Methaqualone at the house of the accused Aftab was found. Even the tumbler allegedly kept in the house of the accused Aftab for preparation of Methaqualone was found to be new and unused. The public witnesses have not supported the prosecution and there is doubt over the recovery. The discrepancies in the FSL report are not minor and benefit of doubt should be given to the accused. Ld. Counsel for the accused Asadullah also raised the issue of noncompliance of Section 42 of NDPS Act. According to Ld. Counsel, the search warrant Ex. PW1/A for C143 B, Rampayari Camp did not authorise PW1 Sh. Deepak Khatri, Intelligence officer to conduct the search of the portion which was C144 B, Rampayari Camp. The moment the DRI team came to know that the rear portion had separate number i.e. C144 B, fresh search warrant should have been obtained for conducting search in the said portion or reasons for not obtaining the search warrant should have been recorded as provided u/s 42 of NDPS Act. PW15 Sh. B. K. Banerjee did not sign any document and his presence on the spot is doubtful. Even if he was present, the defect in DRI vs Aftab Khan & ors. Page no. 31 of 45 Case No. 6768/2016 compliance of provision of Section 42 of NDPS Act is not cured as he himself did not conduct the search.
Analysis 7.1 I have considered the arguments of Ld. SPP for DRI and the arguments of Ld. Counsel for accused.
7.2 There is no merit in the argument that there is no compliance of Section 42 of NDPS Act as separate search warrant for the rear portion stated to have number C144 B was not obtained. The accused Aftab told the DRI team that the rear portion was C144 B, however,no document has been placed on record in this regard. There was single entrance and exit to the entire premises which according to the accused Aftab comprised of plots having number C143 B and C144 B. DRI team went there with search warrant for C143 B as the house of the accused Aftab. The entire house where the search was conducted was his house. Therefore, the search conducted on the basis of search warrant Ex. PW1/A in which the premises to be searched was described as "premises of Sh. Aftab r/o C143 B Rampayari Camp, Lal Kuan, PS Pul Prahlad Pur, New Delhi" was not bad as argued by Ld. Counsel for accused Asadullah. It is not a case of total non compliance of the provisions u/s 42 of NDPS Act. Therefore, discussion of the authorities on the provision u/s 42 of NDPS Act which have been cited at Bar by Ld. Counsel for accused Asadullah is not required.
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7.3 In his statement u/s 313 Cr. PC, the accused Idrish Ahmad has
stated that on 24.12.2012, he was present at his house i.e. 8 Church Road, First floor, Bhogal. At about 06:00pm, the DRI officers came to his house. They stated that they wanted to make some inquiry from him. He was assured that he would be allowed to leave after the inquiry. He made a request to them that he be allowed to take along some known person with him and the DRI officers agreed. He took DRI officers to the house of Asadullah and Niamatullah and explained the reason for his visit to them. Both of them accompanied him and the DRI officers in a vehicle. They were taken to DRI office and their mobile phones were taken away. On the next day, the DRI officers brought another person. The DRI officers accused him of indulging in drug trafficking. He also stated that he drafted the retraction application Ex. 1/D1 with the help of some Afghan UTPs, who were conversant with the language.
7.4 The accused Niamatullah and Asadullah also claim that they were taken from their house and locked in the DRI office with Idrish where the accused Aftab was brought later on. Accused Aftab also claims that he was taken to DRI office and locked in a room where the other three accused had already been detained. The story put up by the accused Idrish is totally unbelievable. He claims that he did not know any language other than Pushto. It is not his case that members of DRI team, who allegedly went to DRI vs Aftab Khan & ors. Page no. 33 of 45 Case No. 6768/2016 his house knew Pushto. Then how did he communicate with them? Ld. Counsel for the accused Idrish argued that in the jail, the accused learnt little bit Hindi. Even if it is so, we have to keep in mind that the accused was answering about the day and time when he is stated to have been arrested by DRI and as per his own case, at that time he did not know any language other than Pushto. The accused Asadullah and Niamatullah have not disclosed where they were living. Their passports were not found when search was conducted at house no. 8, first floor, right side, Church road, Bhogal, New Delhi. Copy of passport and the other documents of the accused Idrish only were found. The rent agreement of the property was also in favour of the accused Idrish only. Though, PW19 Rashid Ali did not fully support the prosecution. His statement shows the presence of the accused Niamatullah, Asadullah and Idrish at the house of the accused Aftab on the day of the raid. The accused have not led any evidence to prove the complaint given to the police by the wife of the accused Niamatuallh. Taking into consideration the entire evidence, prosecution has proved beyond reasonable doubt that the accused Niamatuallh, Asadullah and Idrish were present at the house of accused Aftab when raid was conducted. 7.5 Presence of the three accused at the house of accused Aftab is not sufficient to hold the charges to be proved. Prosecution also needs to prove beyond reasonable doubt the recovery, role of the accused and nature DRI vs Aftab Khan & ors. Page no. 34 of 45 Case No. 6768/2016 of the substance recovered. In Sharad Birdhichand Sarda vs State of Mahashtra (AIR 1984 SC 1622), it has been held by Hon'ble Supreme Court that infirmity or lacuna in the case of the prosecution cannot be cured by false defence or false plea of the accused. In Babubhai vs State of Gujarat (2010) 12 SCC 254, Hon'ble Supreme Court held that investigation in a criminal offence must be free from objectionable features or the infirmities which may legitimately lead to a grievance on part of the accused. In Babu Singh vs the State of Rajasthan 1978 SCC OnLine Raj 99, it was held that the prosecution can succeed by substantially proving that very story which it alleges. It must stand on its own legs. It cannot take advantage of the weakness of defence nor can the Court on its own make out a new case for the prosecution and convict the accused. In Sujit Biswas vs State of Assam (2013) 12 SCC 406, it was held that prosecution must lead clear, cogent and unimpeachable evidence.
7.6 Secret information on the basis of which the raid was conducted is Ex. PW1/T. The time of receipt of the information by Sh. I. S. Sahani is mentioned as 1500 hours. Sh. B. K. Banerjee gave the direction from point X to X with his signature at point B. He discussed the report with Sh. I. S. Sahani. He directed "please form a team including a lady officer and let us proceed for taking appropriate action under NDPS Act 1985." He marked the matter to Sh. Khatri/IO who signed at point A. The time below the signature DRI vs Aftab Khan & ors. Page no. 35 of 45 Case No. 6768/2016 of Sh. Deepak Khatri at point A is mentioned as 1530 hours. PW1 Sh. Deepak Khatri disclosed that one of his colleagues whose name he did not remember was maintaining surveillance at the house of the accused Aftab before the DRI team reached there but he did not remember his name. Deposing as PW15, Sh. B. K. Banerjee who had proceeded with the team to conduct the raid, disclosed that he had deputed Sh. S. K. Bhalla IO to identify the premises and to maintain a discreet watch about the movement of persons in the premises. He was questioned about the time when he firstly received the information and the time when he deputed Sh. S. K. Bhalla to maintain surveillance at the premises. He stated that on 24.12.2012 he came to know about the present case at about 03:00pm and he was the first person who had received the information directly from his source. He again said that the information was received by his officer and the said officer communicated the information to him. About deputing Sh. S. K. Bhalla, he stated that he might have deputed Sh. S. K. Bhalla at around 03:10/03:15pm. The deposition of PW15 Sh. B. K. Banerjee creates doubt about the case of the prosecution that the information was received by PW7 Sh. I. S. Sahani and he had put up the same before PW15 Sh. B. K. Banerjee. In the secret information Ex. PW1/T, the time when the secret information was put up before PW15 is not mentioned. It was also not mentioned that he had sent Sh. S. K. Bhalla IO for identifying the premises and to maintain watch DRI vs Aftab Khan & ors. Page no. 36 of 45 Case No. 6768/2016 regarding movement of the persons in the premises. The answers by PW15 Sh. B. K. Banerjee who was a senior officer ( Asstt. Director) shows that the process of raid did not start in the manner as set out in the complaint. 7.7 As per the case of prosecution, 26 packets were recovered from the room in which the three accused were sitting and 12 packets were recovered from the room of the accused Aftab. The above said 26 packets were given mark A to Z. The packets mark J and K were in one bag and the other 24 packets were in another bag. As per panchnama Ex. PW1/F, the substance of 26 packets was tested with the help of Field Testing Kit and it was found positive for Methaqualone. Thereafter, samples were drawn and the packets were sealed. The description of 26 packets is mentioned in annexure A (Ex. PW1/F1) to the panchnama. The 12 packets recovered from the room of Aftab are mentioned in annexure B (Ex. PW1/F2) to the panchnama. It is mentioned at internal page 5 of the panchnama that on being asked Aftab stated that the substance recovered from his room was unfinished product. The panchnama does not show that the DRI team also tested the substance of the 12 packets mentioned in Ex. PW1/F2 with the help of Field Testing Kit.
7.8 PW18 Ram Prasad and PW19 Rashid Ali who are panch witnesses, deposed that the proceedings were not conducted in their presence. Statement of Ram Prasad u/s. 67 of NDPS Act is Ex. PW1/P1. At DRI vs Aftab Khan & ors. Page no. 37 of 45 Case No. 6768/2016 page 3 of the statement which is at page 1335 of the judicial record, it is mentioned, "on the search of the house, DRI officers found 38 polythene packets which contained powdery substance. On testing/checking by DRI officers, they were found to contain some intoxicating substance. The 38 packets along with the powdery substance were seized by DRI officers." Statement of Rashid Ali u/s. 67 of NDPS Act is Ex. PW1/O1. At page 4 of his statement, which is at page 1325 of the judicial file, it is mentioned, "During search DRI officers, polythene packets containing powder. On weighing, the weight was found to be 38.701 Kg. The packets were 38 in number. When the DRI officers, tested the powder, it was found that the packets were filled with methaqualone." As per the panchnama, the substance of the 12 packets recovered from the room occupied by Aftab were not tested. The panchnama was also signed by the panch witnesses. The statement of the panch witnesses u/s. 67 NDPS Act that the substance of all 38 packets was checked and that all packets contained intoxicating substance/methaqualone does not match with the panchnama. If the panchnama is correct, the panch witnesses could not have said in their statement u/s. 67 of NDPS Act that contents all 38 packets were checked and they could also not have stated about the nature of the contents of all 38 packets. Their statement would have been only regarding checking/ testing of the contents of 28 packets seized from the room where the three accused (Afghan nationals) were DRI vs Aftab Khan & ors. Page no. 38 of 45 Case No. 6768/2016 sitting. The discrepancy creates doubt over the claim of prosecution that all proceedings at the spot were conducted in the presence of the panch witnesses. PW15 Sh. B.K. Banerjee, Assistant Director was the senior most member of the raiding team. He ordered the raid, participated in it, supervised the proceedings and even sent an officer in advance to maintain vigil over the house of the accused Aftab but he deposed that he did not remember who called the panch witnesses. This also creates doubt about the manner in which and the time at which panch witnesses were joined in the proceeding. It cannot be said beyond reasonable doubt that entire proceedings were conducted by DRI team in presence of the panch witnesses.
7.9 As per panchnama, the contents of 26 packets seized vide annexure A (Ex. PW1/F1) to the panchnama Ex. PW1/F were tested at the spot for methaqualone and the test was positive. While sending the samples to the CRCL vide letter dated 26.12.2012 Ex. PW10/A, PW15 Sh. B.K. Banerjee wrote that the samples were suspected to be methaqualone and they be also tested for Heroin. He did not assign any reason for making the request to test the samples for Heroin also and in the complaint also no reason is given. As per the literature of UNDOC which can be accessed with URL https://www.undoc.org/documents/scientific/methaqualoneSTNAR15 Rev.1.pdf, Methaqualone is used as cutting agent for Heroin and can be DRI vs Aftab Khan & ors. Page no. 39 of 45 Case No. 6768/2016 present in seizure of Heroin up to a concentration of 30%. The prosecution has not based its case upon this literature or the scientific principle mentioned therein. This aspect assumes importance in view of the discrepancy in the CRCL report which will be explained in the following paragraphs.
7.10 The first test report of CRCL is Ex. PW2/B. It mentions that each of 38 samples were in the form of offwhite powder. On the basis of chemical and chromatographic examinations it was found that out of 38 samples, 29 samples having identification marking A1, B1, D1, F1 to V1 respectively answer positive for Methaqualone whereas other nine samples having identification marking C1, E1,W1 to Z1 and AA1 to AC1 answer positive test for both Methaqualone and Diacetylmorphine (Heroin). 7.11 The first discrepancy in the CRCL report is that colour of all 38 samples is stated to be offwhite whereas the colour of the substance in the 38 packets was white, pink and offwhite. The samples should also had been of white, offwhite and pink colour. No explanation was sought by the prosecution from PW2 in this regard. In the matter reported as (1998) 7 SCC 270, the difference in colour of the sample was held to be not material. However, the facts of the present case are not identical and therefore the observation made by Hon'ble Supreme Court in the said case cannot be applied to the present case. If we count the number of samples by marking DRI vs Aftab Khan & ors. Page no. 40 of 45 Case No. 6768/2016 of the samples as mentioned above, the total number of samples which answer positive for Methaqualone only is 20 and the number of samples which answered positive for Methaqualone as well as Heroin is 9. There is no mention of the samples having mark AD1 to AL1. In this regard also no explanation was sought from PW2. He deposed that all 38 samples including the 9 samples were found positive for Methaqualone. His oral testimony does not match with his own report Ex. PW2/B. According to the prosecution Aftab had disclosed that the substance recovered from his room was unfinished produced. No testing was done on the spot. The report Ex. PW2/B is silent regarding the samples having marking AD1 to AL1. Therefore, we cannot presume that there is a typographical error in the report Ex. PW2/B which resulted in omission of mentioning the samples having marking AD1 to AL1. The samples were sent again to CRCL for determining the percentage purity of Methaqualone. CRCL sent report dated 13.05.2013 which is Ex. PW2/F. In this report also the colour of all 38 remnant samples is mentioned as off white. According to this report all 38 samples including the samples AD1 to AL1 which were missing in the earlier report, contain Methaqualone of different percentage as detailed in the report. The report Ex. PW2/F which mentions presence of Methaqualone in the samples to AD1 to AL1 also cannot cover the defect in the earlier report. The doubt regarding the colour of samples and the CRCL reports DRI vs Aftab Khan & ors. Page no. 41 of 45 Case No. 6768/2016 casts doubt over the nature of the substance seized in this case. It is also pertinent to note that PW15 deposed that no handing over memo was prepared when the case property and the samples were handed over to him. 7.12 The secret information was received at 03:00pm. PW1 Sh. Deepak Khatri acknowledged the direction from PW15 at 03:30pm and the raiding party reached the designated place at about 07:30/07:45pm as deposed by PW1 in his examinationinchief dated 20.11.2013. According to PW1 and PW15, an officer of DRI had already been sent to the designated place to maintain vigil. There was specific information that the suspects included people of Afghan origin. DRI team had sufficient time to arrange for an interpreter to accompany them or to meet them at the designated place but this was not done. Though, Ld. Counsel for the accused have not argued that Section 50 of NDPS Act applies to the present case, they have raised the issue of fairness of the procedure adopted by DRI and the sanctity of the signatures/thumb impression of the accused on various documents prepared at the spot. Nonjoining of an interpreter despite sufficient time creates doubt about fairness of the procedure adopted by DRI to conduct the raid. 7.13 The secret information Ex. PW1/T was to the effect that Aftab was engaged in possession, transportation and dealing of narcotic drugs and psychotropic substances and that some people of Afghan origin frequently visited his residence for preparation of Methaqualone which is a psychotropic DRI vs Aftab Khan & ors. Page no. 42 of 45 Case No. 6768/2016 substance. In their alleged statements u/s 67 of NDPS Act, the accused persons disclosed the process of preparation of Methaqualone. According to the statement of accused Aftab, one Moosa used to supply raw material to him. Idrish used to bring a yellow chemical which was mixed with the raw material in fixed proportion. The mixture was heated and thereafter, converted into powder after cooling. It was for DRI to accept and believe the statements of the accused or to investigate the matter to find out the correctness of the statements. No yellow colour chemical was recovered from the three accused of Afghan origin or from accused Aftab. When the raid was conducted, no manufacturing process was being done. The accused Aftab stated that the substance recovered from his room was unfinished product. The substance recovered from his room was not tested. We have no report regarding the nature of substance in the packets having marking AD1 to AL1. No investigation has been done to see whether there was any raw material from which Methaqualone and Methaqualone plus Heroin could be prepared using the equipment recovered from the house. The tumbler (patila) was new and appeared to be unused. No test was conducted to see whether it had traces of Methaqualone, Heroin or any other prohibited substance under the NDPS Act. The mixer/grinder had some white colour powder sticking to it but it was also not tested to determine the nature of the substance. PW1 stated that the three accused were not carrying any DRI vs Aftab Khan & ors. Page no. 43 of 45 Case No. 6768/2016 luggage when they entered the house of the accused Aftab. As per the statements of the accused, the role of the three accused Niamatullah, Asadullah and Idrish was limited to manufacturing of the psychotropic substance. After the manufacturing, accused Aftab had to deliver the finished product to Moosa. In absence of investigation on the points mentioned above and doubt over the CRCL report Ex. PW2/B, mere presence of the three accused at the house of the accused Aftab is not sufficient to prove the charges against them.
7.14 PW15 Sh. B. K. Banerjee stated in his crossexamination that one of the rooms in the house of the accused Aftab was locked and the DRI team did not open the said room. The panchnama also does not suggest that the DRI team searched the entire premises of the accused Aftab. Under normal circumstances, DRI team would have searched the entire premises including the room which was locked. This fact also creates doubt over the manner in which proceedings were conducted at the spot. Conclusion 8.0 The discussion above shows that there are several infirmities in the case of the prosecution which create doubt regarding nature of the substance recovered in this case, role of the accused persons and the manner in which the proceedings were conducted. Accused are entitled to benefit of doubt.
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Order
Prosecution has failed to prove the charges against all accused beyond reasonable doubt. Accordingly, all four accused namely, Aftab Khan, Niamatullah, Asadullah and Idrish Ahmed are acquitted of the charges framed against them.
File be consigned to record room.
(announced in the Digitally (Rajesh Kumar Singh )
signed by
open Court on RAJESH Special Judge (NDPS)
RAJESH KUMAR
22nd December 2018)
KUMAR SINGH South District: Saket
SINGH Date:
2018.12.22
15:15:33
+0530
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Case No. 6768/2016