Delhi District Court
State vs (1).Mohd Israil on 22 June, 2021
IN THE COURT OF SH. DEEPAK DABAS
SPECIAL JUDGE, NDPS ACT (CENTRAL):
TIS HAZARI COURTS: DELHI
SESSIONS CASE NO. 84/2015
CNR NO. DLCT01-002510-2015
STATE Versus (1).Mohd Israil
S/o Mohd Ishaq
R/oHNo.589,
C Block,J J Colony,
Bawana, Delhi
(2) Mohd Dastgir
S/o Maniruddin,
R/oHNo.E379,
J.J.Colony,
Bawana, Delhi.
FIR No. 87/2015
U/S. 20/29 NDPS Act
P.S. Crime Branch
JUDGMENT
A. CASE OF THE PROSECUTION IN BRIEF:-
1. In nutshell, the prosecution case against both the accused persons named above is that on 09.06.2015, at about 06.45 PM a secret information was received by SI Manoj Kumar(posted in SC No.84/2015 FIR No. 87/2015 State Vs Mohd Israil & Anr. Pages 1/36 Narcotics Cell, Crime Branch, Kotwali, Delhi) that two persons namely Mohd Israil and Mohd Dastgir would bring Ganja from Visakhapatnam and would go to Sadar Bazar Jhuggies to deliver the same to one person namely Mukesh R/o Sadar Bazar Jhuggies. As per Secret Information the said two persons work for Mukesh and they would go to Sadar Bazar Jhuggies via Paharganj Pul alongwith Ganja, between 08.30 PM to 09.00 PM. The Secret informer further stated that if raid is conducted than they can be caught with Ganja.
2. It is further alleged that after satisfying himself SI Manoj Kumar produced secret informer before Inspector Kuldip Singh of Narcotics Cell. Inspector Kuldip Singh also made enquiries from Secret informer and after being satisfied, telephonically informed Sh R.K. Tyagi i.e. ACP/N&CP about secret information. Sh R.K. Tyagi directed that raid be conducted immediately and necessary proceedings be conducted. Thereafter, SI Manoj Kumar reduced said secret information into writing vide DD No.29 dated 09.06.2015, Narcotics Cell, Crime Branch, Delhi and copy of same was sent to Inspector Kuldip Singh of Narcotics Cell in compliance of Section 42 of NDPS Act.
3. Thereafter, a raiding team comprising of SI Manoj Kumar, HC Jitender, HC Rajesh Kumar, Ct Jagdish and Ct Sonu Tomar(deputed as driver on Govt Vehicle No.DL-1CM4228) was constituted. A trap was laid on Pahar Ganj Pul, Nabi Karim Side, SC No.84/2015 FIR No. 87/2015 State Vs Mohd Israil & Anr. Pages 2/36 Delhi and at about 08.45 PM both accused persons named above were apprehended at the instance of secret informer.
4. Notice under Section 50 NDPS Act was given to accused persons. Both accused persons refused to be searched in presence of a Gazetted Officer/Magistrate. Accused Mohd Israil was carrying one black colour trolly type suitcase in his right hand. The said suit case was searched and it was found containing 21 kgs of Ganja (Cannabis). Two samples of 250-250 Grams each were taken out and Pullandas were prepared. Pullanda of remaining Ganja was also prepared and all Pullandas were seized vide seizure memo. FSL form was also filled up. Accused Mohd Dastgir was also carrying one chocolate coloured trolly type suit case in his right hand. The said suit case was searched and it was found containing 14 kgs of Ganja (Cannabis). Two samples of 250-250 gms each were taken out and pullandas were prepared. Pullanda of remaining Ganja was also prepared and all pullandas were seized vide seizure memo. Another FSL Form was also filled up.
5. Thereafter, a rukka was prepared and the same was sent to SHO PS Crime Branch alongwith pullandas etc for compliance of Section 55 of NDPS Act. FIR was also got registered and investigation was handed over to ASI Narender Kumar of Narcotics Cell, Crime Branch, Delhi.
SC No.84/2015 FIR No. 87/2015 State Vs Mohd Israil & Anr. Pages 3/36
6. ASI Narender Kumar reached the spot, prepared Site Plan etc and arrested both accused persons. ASI Narender conducted further investigation and after completion of same filed chargesheet against both accused persons for offences punishable under Section 20/29 NDPS Act.
B. CHARGE FRAMED AGAINST THE ACCUSED PERSONS:-
On 19.01.2016, charge for offence punishable U/s 20(c) and Section 29 r/w Section 20(b) and 20(c) of NDPS Act was framed against accused Mohd Israil. Charge for offence punishable U/s 20(b) and Section 29 r/w Section 20(b) and 20(c) of NDPS Act was framed against accused Mohd Dastgir. Thereafter, case was fixed for prosecution evidence.
C. EVIDENCE LED BY THE PROSECUTION:-
1. In order to prove its case, prosecution has examined following 13 witnesses:-
(i). PW-1 is HC Jai Pal Singh i.e. Duty Officer, PS Crime Branch;
(ii) PW-2 is ASI Satyabir;
(iii) PW-3 is SI Manoj Kumar i.e. Complainant/Recovery witness/first IO;
(iv) PW-4 is ACP Ravinder Kumar Tyagi; (v) PW-5 is HC Rajesh (recovery witness); (vi) PW-6 is HC Jitender Kumar(recovery witness);
(vii) PW-7 is ASI Narender Kumar(Second IO);
SC No.84/2015 FIR No. 87/2015 State Vs Mohd Israil & Anr. Pages 4/36
(viii) PW-8 is Ct Rajiv Kumar;
(ix) PW-9 is Ravinder Kumar Sharma i.e. the then SHO PS Crime Branch;
(x) PW-10 is Inspector Kuldeep Singh ;
(xi) PW-11 is Dr S K Paul, Senior Scientific Officer, FSL Rohini;
(xii) PW-12 is Shailender Verma i.e. Head Ticket Examiner, Agra Cantt., Railway Station;
(xiii) PW-13 is ASI Jag Narain i.e. MHC(M).
D. STATEMENT OF BOTH ACCUSED PERSONS U/S 313 of Cr.P.C.:-
After completion of P.E., Statement of both accused persons was recorded under Section 313 of Cr.P.C. wherein both accused persons denied all the incriminating evidence which has come on record against them. Both accused persons claimed that no recovery of any kind whatsoever was effected from them and the Ganja in question was planted upon them to save the actual culprits. Both accused persons further claimed that they were picked up from railway station itself and were taken to PS and they were forcibly made to sign number of documents. Both accused persons claimed that they cannot read and write Hindi or English and no notice was given to them. No notice was recovered in their personal search and they were not informed about their legal rights. They had not made any disclosure statement or supplementary disclosure statement and false entries were made in the police record to create false evidence.
SC No.84/2015 FIR No. 87/2015 State Vs Mohd Israil & Anr. Pages 5/36 E. DEFENCE EVIDENCE LED BY ACCUSED PERSONS:-
Both accused persons chose not to lead evidence in their defence.
F. FINAL ARGUMENTS:-
1. Final arguments advanced by Sh. Kanhaiya Singhal i.e. Ld. Counsel for both accused persons as well as Ld Addl. PP for State were heard. I have perused the record carefully. I have also perused the written arguments/written note as well as Addl.
Written note filed by Ld. Counsel for accused persons.
2. Ld. Counsel for accused persons has relied upon following judgments:-
(1) State of Punjab Vs Baldev Singh: (1999) 6 SCC 172; (2) State of Punjab Vs Balbir Singh: (1994) 3 SCC 299; (3) Roy V.D. Vs. State of Kerala: (2000) 8 SCC 590; (4) State vs Vicky: (2019) SCC OnLine Delhi 10331 (5) Myla Venkateswarlu Vs State of Andhara Pradesh:
(2012) 5 SCC 226;
(6) Vijaysinh Chandubha Jadeja Vs State of Gujarat:
(2011) 1 SCC 609;
(7) Rakesh @ Shankar Vs. State: (2014) 1 High Court cases (Del) 123;
(8) Akhilesh Bharti Vs. State: (2020) 266 DLT 689; (9) Dayakar Illandulla son of Maratya Illandulla Vs. State SC No.84/2015 FIR No. 87/2015 State Vs Mohd Israil & Anr. Pages 6/36 of Maharashta: 2009 SCC OnLine Bom 1491;
10. Shyamal Barman & Anr. Vs. State of West Bengal (2014) 3 Cal LT 591.
11. State of Rajasthan Vs. Parmanand & Ors. : 2014 (5) SCC 345;
12. S K Raju @ Abdul Haque @ Jagga Vs. State of West Bengal (2018) 9 SCC 708;
13. Deepak Pandey Vs. State in bail application no.
903/2019 decided on 01.11.2019 by Hon'ble High Court of Delhi.
3. On the other hand, Ld. Addl. PP for State has relied upon following judgments:-
(1) Kamal Thakur Vs. State (Delhi Admn) 56(1994) DLT 431;
(2) State of Rajasthan vs. Tara Singh Crl. A. No. 262 of 2006 decided on 29.03.2011 by Hon'ble Supreme Court of India.
G. REASONS FOR THE DECISION:-
1. The first contention of Ld. Counsel for accused persons is that in the present case mandatory provisions of NDPS Act were not complied with. Ld. Counsel argued that PW-3 i.e. SI Manoj Kumar had no prior authorization under Section 41(2) of NDPS Act, hence all the proceedings conducted in this case are illegal.
Ld. Counsel argued that PW-3 in his cross examination admitted that he was not authorized officer to conduct the investigation.
SC No.84/2015 FIR No. 87/2015 State Vs Mohd Israil & Anr. Pages 7/36 PW-4 i.e. ACP concerned also admitted that no written authorization was provided. PW-3 was neither the empowered officer nor he was an authorized officer. In this regard Ld. Counsel has relied upon Baldev Singh's Case(Supra), Balbir Singh's case (Supra) and Roy V.D.'s case(Supra).
2. In Baldev Singh's case(Supra) Hon'ble Supreme Court of India held as under:-
"If the investigating officer is not an empowered officer then it is expected of him that he must inform the empowered officer under the NDPS Act, who should thereafter proceed from that stage in accordance with the provisions of the NDPS Act."
3. In Balbir Singh's Case(Supra) Hon'ble Supreme Court of India held as under:-
"under Section 41(1) only an empowered Magistrate can issue warrant for the arrest or for the search in respect of offences punishable under Chapter IV of the Act etc. when he has reason to believe that such offences have been committed or such substances are kept or concealed in any building, conveyance or place. When such warrant for arrest or for search is issued by a Magistrate who is not empowered, then such search or arrest if carried out would be illegal. Likewise only empowered officers or duty authorized officers as enumerated in Sections 41(2) and 42(1) can act under the provisions of the NDPS Act. If such arrest or search is made under the provisions of the NDPS Act by anyone other than such officers, the same would be illegal.
Under Section 41(2) only the empowered officer can give the authorization to his subordinate officer to carry out the arrest of a person or search as mentioned therein. If there is a contravention, that would affect the prosecution case and vitiate the conviction."
SC No.84/2015 FIR No. 87/2015 State Vs Mohd Israil & Anr. Pages 8/36
4. In Roy V.D.'s Case(Supra), Hon'ble Supreme Court held as under:-
"Now, it is plain that no officer other than an empowered officer can resort to Section 41(2) or exercise powers under Section 42(1) of NDPS Act or make a complaint under clause(d) of sub- section (1) of Section 36A of the NDPS Act. It follows that any collection of material, detention or arrest of a person or search of a building or conveyance or seizure effected by an officer not being an empowered officer or an authorized officer under Section 41(2) of the NDPS Act, lacks sanction of law and is inherently illegal and as such the same cannot form the basis of a proceeding in respect of offences under Chapter IV of the NDPS Act and use of such a material by the prosecution vitiates the trial.
To the same effect is the view expressed by this Court in State of Punjab Vs. Balbir Singh (1994) 3 SCC 299. In para 13 Jayachandra Reddy, J. speaking for the Court observed thus: Therefore, if an arrest or search contemplated under Sections 41 and 42 is made under a warrant issued by any other Magistrate or is made by any officer not empowered or authorized, it would per se be illegal and would affect the prosecution case and consequently vitiate the trial."
5. Section 41(2) of NDPS Act is being reproduced herein for sake of convenience and ready reference:-
"Any such officer of gazetted rank of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including the para- military forces or the armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government if he has reason to believe from personal knowledge or information given by any person SC No.84/2015 FIR No. 87/2015 State Vs Mohd Israil & Anr. Pages 9/36 and taken in writing that any person has committed an offence punishable under this Act or that any narcotic drug or psychotropic substance or controlled substance in respect of which any offence under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or place, may authorize any officer subordinate to him but superior in rank to a peon, sepoy or a constable to arrest such a person or search a building, conveyance or place whether by day or by night or himself arrest such a person or search a building, conveyance or place."
6. In the present case PW-3 i.e. SI Manoj Kumar had received secret information. After satisfying himself about the information given by secret informer, PW-3 produced the secret informer before Inspector Kuldip Singh (PW-10) of Narcotics Cell. PW-10 i.e. Inspector Kuldip Singh also made enquiry from the Secret informer and after satisfying himself discussed the matter with the PW-4 i.e. ACP Ravinder Kumar Tyagi (of Narcotics Cell). PW-4 i.e. ACP Ravinder Kumar Tyagi directed that necessary proceedings be conducted.
7. It is not in dispute that an ACP of Delhi police is a Gazetted Officer. It is also not in dispute that PW-4 i.e. ACP Ravinder Kumar Tyagi of Narcotics Cell is an empowered officer as envisaged under Section 41(2) of NDPS Act. The Secret information received by PW-3 i.e. SI Manoj Kumar was conveyed by him to his immediate superior i.e. Inspector SC No.84/2015 FIR No. 87/2015 State Vs Mohd Israil & Anr. Pages 10/36 Kuldeep Singh (PW-10). Even secret informer was also produced by PW-3 before Inspector Kuldip Singh (PW-10). PW-10 i.e. Inspector Kuldip Singh informed PW-4 i.e. ACP Ravinder Kumar Tyagi about same and ACP Ravinder Kumar Tyagi directed that further proceedings be conducted. Testimony of PW-3, PW-4 and PW-10 is consistent in this regard. Secret information was reduced in writing vide DD No.29 dated 09.06.2015 by SI Manoj and same is Ex.PW-4/A.
8. Ld. Counsel for accused persons has relied upon one line in the cross examination of PW-3 wherein he stated as under:-
"It is correct that I was not authorized officer under NDPS Act on the date of registration of FIR in question."
9. Ld. Counsel for accused persons has also relied upon one line in the cross examination of PW-4 wherein he stated as under:-
"No written authorization letter was given by me to Inspector Kuldeep or SI Manoj for the purpose of conducting the raid but I had directed them to initiate proceedings by raid verbally."
10. Ld. Counsel for accused persons vehemently argued that in view of aforesaid admissions made by PW-3 and PW-4 in their cross examination it is clear that PW-3 was not authorized officer at the time of apprehension/arrest of accused persons and the alleged recovery from them, hence all the proceedings in the case SC No.84/2015 FIR No. 87/2015 State Vs Mohd Israil & Anr. Pages 11/36 are illegal.
11. However, I find no merits in the aforesaid submissions of Ld. Counsel for accused persons. Firstly, NDPS Act and more particularly Section 41(2) of said Act nowhere postulates that the empowered officer must give the authorization to his subordinate officer in writing only and such authorization cannot be given orally. Section 41(2) of said Act talks of authorization only and nowhere mandates that it is to be in writing only. Even no particular form of authorization has been prescribed. In the present case PW-4 i.e. ACP Ravinder Kumar Tyagi was informed about secret information received by PW-3 i.e. SI Manoj Kumar and PW-4 directed that further proceedings be conducted. The said direction in itself is an authorization to PW-3 i.e. SI Manoj Kumar as envisaged under Section 41(2) of said Act.
12. Secondly, even the alleged admission made by PW-3 i.e. SI Manoj Kumar in his cross examination i.e. he was not authorized officer under NDPS Act on the date of registration of FIR in question is also not of much significance. It is settled proposition of law that while evaluating/appreciating testimony of a witness the testimony as a whole is to be read and appreciated. Perusal of testimony of PW-3 clearly shows that in his examination in chief PW-3 has categorically reiterated the aforesaid facts and stated that ACP of Narcotics Cell Sh Ravinder Kumar Tyagi directed for necessary proceedings. PW-4 i.e. ACP Ravinder Kumar Tyagi also corroborated the said facts in his testimony recorded in SC No.84/2015 FIR No. 87/2015 State Vs Mohd Israil & Anr. Pages 12/36 court. Even PW-10 i.e. Inspector Kuldip Singh has corroborated the same. It is reiterated that PW-4 i.e. ACP Ravinder Kumar Tyagi was an empowered officer under Section 41(2) of NDPS Act and on being informed about secret information, PW-4 directed that necessary proceedings be conducted. This direction was conveyed by PW-10 i.e. Inspector Kuldip Singh to PW-3 i.e. SI Manoj Kumar and on receipt of said direction PW-3 i.e. SI Manoj Kumar conducted further proceedings. Hence, PW-3 was authorized by an Empowered Officer. The aforesaid facts have been duly proved on record by prosecution and prosecution has successfully proved that PW-3 i.e. SI Manoj Kumar was an authorized officer at the relevant time. The alleged admission of PW-3 is of no consequence in view of facts proved by prosecution on record during trial of this case.
13. The next contention of Ld. Counsel for accused persons is that Section 50 of NDPS Act has not been complied with in the present case. Compliance of Section 50 of NDPS Act is mandatory and its non compliance has rendered all the proceedings illegal. In this regard Ld. Counsel for accused persons has relied upon Balbir Singh's case(Supra). In Balbir Singh's case (Supra), Hon'ble Supreme Court of India held as under:-
"it appears that this (Section 50) is a valuable right given to the person to be searched in the presence of a Gazetted Officer or a Magistrate if he so requires, since such a search would impart much more authenticity and creditworthiness to the proceedings while equally providing an important safeguard to the accused. To afford such SC No.84/2015 FIR No. 87/2015 State Vs Mohd Israil & Anr. Pages 13/36 an opportunity to the person to be searched, he must aware of his right and that can be done only by the authorized officer informing him. The language is clear and the provision implicitly makes it obligatory on the authorized officer to inform the person to be searched of his right."
14. On issue of Section 50 of NDPS Act, Ld. Counsel for accused persons has also relied upon Myla Venkateswarlu's Case(Supra), Vijay Sinh Chandubha Jadeja's Case(Supra) and also Rakesh @ Shankar's Case(Supra).
In Myla Venkateswarlu's Case(Supra) Hon'ble Supreme Court of India held as under:-
"When an empowered officer or a duly authorized officer acting on prior information is about to search a person, it is imperative for him to inform the concerned person of his right under Sub- section(1) of Section 50 of being taken to the nearest Gazetted Officer or the nearest Magistrate for making the search".
In the aforesaid case Hon'ble Supreme Court further held that :-
"The Constitution Bench reiterated the principles laid down by this Court in Baldev Singh and added that the concept of substantial compliance with the requirement of Section 50 of the NDPS Act is neither borne out from the language of Section 50(1) nor it is in consonance with the dictum laid down in Baldev Singh. Thus, it is no longer in dispute that strict compliance with the provisions of Section 50(1) of NDPS Act is necessary. We need to see whether evidence adduced in this case establishes that there was strict compliance of Section 50(1) of the NDPS Act."
SC No.84/2015 FIR No. 87/2015 State Vs Mohd Israil & Anr. Pages 14/36
15. In Vijay Sinh Chandubha's Case(Supra) Hon'ble Supreme Court held as under:-
"19.Sub-Section (1) of Section 50 provides that when the empowered officer is about to search any suspected person, he shall, if the person to be searched so requires, take him to the nearest gazetted officer or the Magistrate for the purpose. Under sub-section (2), it is laid down that if such request is made by the suspected person, the officer who is to take the search, may detain the suspect until he can be brought before such gazetted officer or the Magistrate. It is manifest that if the suspect expresses the desire to be taken to gazetted officer or the Magistrate, the empowered officer is restrained from effecting the search of the person concerned. He can only detain the suspect for being produced before the gazetted officer or the Magistrate, as the case may be. Sub-section (3) lays down that when the person to be searched is brought before such gazetted officer or the Magistrate and such gazetted officer or the Magistrate finds that there are no reasonable grounds for search, he shall forthwith discharge the person to be searched, otherwise he shall direct the search to be made.
20. The mandate of Section 50 is precise and clear viz if the person intended to be searched expresses to the authorized officer his desire to be taken to the nearest gazetted officer or the Magistrate, he cannot be searched till the gazetted officer or the Magistrate, as the case may be, directs the authorized officer to do so."
16. In Rakesh @ Shankar's Case(Supra) Hon'ble Delhi High Court held as under:-
"To us, this argument appears to be based upon not only a misconstruction of the provisions of Section 50 of the Act but also on the mis- conception of the principles applicable to criminal jurisprudence. Once the recovery itself is found to be illegal, being in violation to the provisions of Section 50 of the Act, it cannot, on the basis of the SC No.84/2015 FIR No. 87/2015 State Vs Mohd Israil & Anr. Pages 15/36 statement of the police officers, or even independent witnesses, form the foundation for conviction of the accused under Section 21 of the Act. Once the recovery is held to be illegal, that means the accused did not actually possess the illicit article or contraband and that no such illicit article was recovered from the possession of the accused such as to enable such conviction of a contraband article."
17. Section 50 of NDPS Act is being reproduced herein for sake of convenience and ready reference:-
50.Conditions under which search of persons shall be conducted-
(1) When any officer duly authorized 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).
(3)The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.
(4) No female shall be searched by anyone excepting a female.
(5) When an officer duly authorized under Section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under Section 100 of the Code of Criminal Procedure, 1973 (2 of 1974).
SC No.84/2015 FIR No. 87/2015 State Vs Mohd Israil & Anr. Pages 16/36 (6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior.
18. Perusal of record shows that carbon copy of notice under Section 50 of NDPS Act given to accused Mohd Israil is Ex.PW-6/A and carbon copy of notice under Section 50 of said Act given to accused Mohd Dastgir is Ex.PW-6/C. If translated in English, Ex.PW-6/A would read as under:-
"You Mohd Israil S/o Mohd Ishaq R/o589, J J Colony, Block C, Bawana Delhi aged 28 years vide this notice is hereby informed that we have information that you alongwith your companion Dastgir have brought Ganja from Visakhapatnam and are taking the same to Sadar Bazar Jhuggies for delivering it to Mukesh and there is possibility of recovery of Ganja from you. Hence, your search is to be conducted by me. Before your search it is your legal right that you can get your search conducted in presence of some Gazetted Officer or Magistrate and arrangements for calling such officers at the spot can be made. It is also your legal right that before your search you can take search of police party as well as of Govt Gypsy."
19. Contents of Ex.PW-6/C are almost identical to that of Ex.PW-6/A. The reply of accused Mohd Israil to notice under Section 50 of NDPS Act i.e. Ex.PW-6/A is Ex.PW-6/B. If translated in English, Ex.PW-6/B would read as under:-
"Sir, I have received the original copy of notice given by SC No.84/2015 FIR No. 87/2015 State Vs Mohd Israil & Anr. Pages 17/36 you. You have informed and explained to me about my legal rights. You have also explained the meaning of Gazetted Officer and Magistrate to me. I have fully understood my legal rights. However, I do not want my search to be taken in presence of Gazetted Officer or Magistrate and I do not want to take search of police officers as well as Govt Gypsy. You can take my search. I can understand Hindi Language. However, I cannot read and write as I am illiterate. Therefore, you can write my refusal. I can only write my name in Hindi Language"
20. The reply of accused Mohd Dastgir to notice under Section 50 of NDPS Act i.e. Ex.PW-6/C is Ex.PW-6/D. Contents of Ex.PW-6/D are also almost identical to that of Ex.PW-6/B.
21. The scope and ambit of Section 50 of the Act was examined by The Constitution Bench of Hon'ble Supreme Court of India in Baldev Singh's Case(Supra). The Hon'ble Supreme Court held as under:-
"57. On the basis of the reasoning and discussion above, the following conclusions arise:-
(1) That when an empowered officer or a duly authorized officer acting on prior information is about to search a person, it is imperative for him to inform the person concerned of his right under sub-section (1) of Section 50 of being taken to the nearest gazetted officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing.
(2) That failure to inform the person concerned about the existence of his right to be searched before a gazetted officer or a Magistrate would cause prejudice to an accused.
(3) That a search made by an empowered officer, SC No.84/2015 FIR No. 87/2015 State Vs Mohd Israil & Anr. Pages 18/36 on prior information, without informing the person of his right that if he so requires, he shall be taken before a gazetted officer or a Magistrate for search and in case he so opts, failure to conduct his search before a gazetted officer or a Magistrate may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from his person, during a search conducted in violation of the provisions of Section 50 of the Act.
(6) That in the context in which the protection has been incorporated in Section 50 for the benefit of the person intended to be searched, we do not express any opinion whether the provisions of Section 50 are mandatory or directory, but hold that failure to inform the person concerned of his right as emanating from sub-section (1) of Section 50, may render the recovery of the contraband suspect and the conviction and sentence of an accused bad and unsustainable in law."
22. In Parmanand' case(Supra), Hon'ble Supreme Court of India held as under:-
"15. Thus, if merely a bag carried by a person is searched without there being any search of his person, Section 50 of the NDPS Act will have no application. But if the bag carried by him is searched and his person is also searched, Section 50 of the NDPS Act will have application. In this case, Respondent 1 Parmanand's bag was searched. From the bag, opium was recovered. His personal search was also carried out. Personal search of Respondent 2 Surajmal was also conducted. Therefore, in the light of the judgments of this Court mentioned in the preceding paragraphs, Section 50 of the NDPS Act will have application."
23. In S.K. Raju's Case(Supra) also, Hon'ble Supreme Court of India followed the law laid down in Parmanand's Case SC No.84/2015 FIR No. 87/2015 State Vs Mohd Israil & Anr. Pages 19/36 (Supra).
24. In the present case, the contraband in question was recovered from the trolly bag carried by accused persons. The said trolly bags were searched first and thereafter, personal search of accused persons was carried out by PW-3 i.e. SI Manoj Kumar. Perusal of record further shows that PW-3 i.e. SI Manoj Kumar had given notice under Section 50 of the NDPS Act to both accused persons i.e. Ex.PW-6/A and Ex.PW-6/C. In Ex.PW- 6/A as well as Ex.PW-6/C, it has been clearly and specifically mentioned that the accused was informed of his legal right i.e. they can get their search conducted in presence of some gazetted officer or magistrate. On receipt of said notice and after duly understanding its contents, accused replied that they have been told about their legal rights and even the meaning of gazetted officer as well as magistrate. The accused persons further replied that they have understood their legal rights but do not want their search to be conducted in presence of some gazetted officer or magistrate. The accused persons asked the policemen to take their search. The said facts have been duly proved by the aforesaid document i.e. Ex.PW-6/A, Ex.PW-6/B, Ex.PW-6/C and Ex.PW-6/D. The aforesaid version is duly corroborated by the other members of the raiding party i.e. PW-5 and PW-6.
25. The essence of right given to accused persons under Section 50 of NDPS Act is that the accused persons must be informed of their legal right i.e. they can get their search SC No.84/2015 FIR No. 87/2015 State Vs Mohd Israil & Anr. Pages 20/36 conducted in the presence of a Gazetted Officer or Magistrate if they so required. It is only when the accused persons submits that they want their search to be conducted in the presence of a Gazetted Officer or Magistrate then they should be taken to such officer or Magistrate. In the present case, the accused persons were informed of their said legal right but they refused to get their search conducted in the presence of a Gazetted Officer or Magistrate. Since the accused persons had refused to get their search conducted in the presence of a Gazetted Officer or Magistrate the question of taking them to such officers does not arise.
26. In view of aforesaid facts and circumstances, I am of the considered view that provisions of Section 50 of NDPS Act have been duly complied with in this case and there is no lacuna/irregularity/illegality in compliance of the same. Hence, this contention of Ld. Counsel for accused persons is also without merits and the same is hereby rejected.
27. The next contention of Ld. Counsel for accused persons is that no independent witness was asked to join the investigation and non joining of independent witness has rendered the recovery as well as entire proceedings doubtful and benefit of doubt shall go to accused persons. Ld. Counsel further argued that Section 100 of Cr.P.C. has not been complied with in this case. In this context, ld. Counsel for accused persons has relied upon a case titled as State Vs Vicky: (2019) SCC Online Delhi 10331.
SC No.84/2015 FIR No. 87/2015 State Vs Mohd Israil & Anr. Pages 21/36
28. In Vicky's Case(Supra), Hon'ble High Court of Delhi held as under:-
"9.Notwithstanding these inconsistencies, it is also apparent that there no serious effort was made by any member of the raiding party to include any public person. This is evident from the fact that the raiding party could provide no information even as to the names of the persons to whom such request was made. One of the spots, where the raiding party is stated to have asked the persons passing by, was a red light crossing, which was at a considerable distance from the spot to where the raiding party was proceeding. The respondent was apprehended ten to twelve steps from a bus stop. It is also admitted that there were other persons at the bus stop, however, none of the persons at the bus stop were asked to join the proceedings."
"10. It is stated that some of the persons passing by had collected when the respondent was being searched. According to the prosecution, they were asked to join the proceedings but had declined; however, none of the witnesses could provide any clue as to the identity of even one such person. Apparently, the raiding party did not even note down the name of any of the persons who had collected at the spot and who according to them had declined."
29. In the present case, perusal of testimony of PW-3, PW-5 and PW-6 i.e. recovery witnesses/members of raiding party clearly shows that public persons were requested to join investigation of this case on several occasions. PW-3 in his examination in chief stated that they had stopped at Bus Stand of JPN Hospital and 4-5 persons standing at the bus stand were requested to join the raiding party but none of them agreed and left the spot without disclosing their name and address. PW-3 further stated that they had stopped at Ajmeri Gate and had asked 4-5 passersby to join the raiding party but none of them agreed SC No.84/2015 FIR No. 87/2015 State Vs Mohd Israil & Anr. Pages 22/36 and left the spot without giving their name and address and disclosing their personal difficulties. PW-5 and PW-6 have corroborated the version of PW-3 in this regard.
30. Hon'ble Supreme Court of India in a case titled as Ajmer Singh Vs. State of Haryana: (2010) 3 SCC 746 held as under:-
"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."
31. Hon'ble Supreme Court of India in a case titled as Rizwan Khan Vs. State of Chattisgarh i.e. Crl Appeal No.580/2020 decided on 10.09.2020 observed as under:-
"8.1. We have scanned and reappreciated the entire evidence on record. We have also considered the findings recorded by the Ld. Special Court, confirmed by the High Court. 8.2. Having gone through the entire evidence on record and the findings recorded by the Courts below, we are of the opinion that in the present case the prosecution has been successful in proving the case against the accused by examining the witnesses PW-3, PW-4, PW-5, PW-7 and PW-
8. It is true that all the aforesaid witnesses are police officials and two independent witnesses who were Panchnama witnesses had turned hostile. However, all the aforesaid police witnesses are found to be reliable and trustworthy. All of them have been thoroughly cross examined by the defence. There is no allegation of any SC No.84/2015 FIR No. 87/2015 State Vs Mohd Israil & Anr. Pages 23/36 enmity between the police witnesses and the accused. No such defence has been taken in the statement under Section 313 Cr.P.C. There is no law that the evidence of police official, unless supported by independent evidence, is to be discarded and/or unworthy of acceptance."
32. In Rizwan Khan's Case (Supra), Hon'ble Supreme Court further held as under:-
"It is settled law that the testimony of the official witnesses cannot be rejected on the ground of non corroboration by independent witness. As observed and held by this Court in catena of decisions, examination of independent witnesses is not an indispensable requirement and such non examination is not necessarily fatal to the prosecution case."
33. Hon'ble Supreme Court of India in a case titled as State (NCT of Delhi) Vs. Sunil: (2011) 1 SCC 652, held as under:-
"It is an archaic notion that actions of the police officer should be approached with initial distrust. It is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the Court cannot start with the presumption that the police records are untrustworthy.
As a proposition of law, the presumption should be the other way round. That official acts of the police have been regularly performed is a wise principle of presumption and recognized even by the legislature."
34. In the present case, secret information was received by PW-3 i.e. SI Manoj Kumar at 06.45 PM. Thereafter, said secret information was conveyed to Inspector Kuldeep Singh(PW-10) and even secret informer was produced before him. PW-10 i.e. Inspector Kuldeep Singh also made enquries from secret SC No.84/2015 FIR No. 87/2015 State Vs Mohd Israil & Anr. Pages 24/36 informer and after satisfying himself, informed PW-4 i.e. ACP R K Tyagi about the same. PW-4 i.e. ACP R.K. Tyagi directed that further proceeding be conducted. Raiding party was constituted and it left office of Narcotics Cell at 07.30 PM. The raiding party reached the spot at 08.10 PM. During 07.30 PM- 08.10 PM, raiding party had stopped at two places and had requested the public persons/passersby to join the said raiding party/investigation but none agreed and left without disclosing their name and address. At this stage, it is important to note that at that time i.e. after 07.30 PM, sunset had taken place and darkness must have set in. At such point of time, people are usually in a hurry to reach their home and after whole day's hard work nobody wants to get himself involved in such investigation etc. In the present case, PW-3 had made efforts to join public witnesses, however, none of them agreed. In the given facts and circumstances and more particularly the time i.e. about 08.00 PM, the efforts made by PW-3 to join public witnesses are reasonable. I am of the considered view that whole prosecution case cannot be disbelieved merely because public witnesses have not joined investigation of this case. This contention of Ld. Counsel for accused persons is also without merits.
35. The next contention of Ld. Counsel for accused persons is that Section 52A of NDPS Act has not been complied with and its non-compliance has made prosecution case doubtful. In this regard, Ld. Counsel for accused persons has relied upon Dayakar Illandulla's Case (Supra) and also Shyamal Barman's SC No.84/2015 FIR No. 87/2015 State Vs Mohd Israil & Anr. Pages 25/36 Case(Supra).
36. In Dayakar Illandulla's Case(Supra), it has been held as under:-
"In the present case, it is not in dispute that the property was not produced before the Court and it was not inventoried, as required under Section 52-A of the NDPS Act. It is well-settled position of law that it is necessary for the prosecution to prepare an inventory of narcotic drugs and psychotropic substances containing the relevant details; produce the seized material before the Court and make application to the concerned Magistrate for certifying the correctness of inventory or to draw photographs or for allowing to draw representative samples of such drugs and substances in presence of such Magistrate. In the present case, none of these things was done.
9. Learned Additional Public Prosecutor, on the other, placed reliance on the judgment of this Court in Sau Parwatabai Vs. The State of Maharashtra (Criminal Appeal No.36 of 2008, decided on 24th September 2008) to contend that matter may be referred back to the trial Court to enable the prosecution cure defect and comply with mandatory requirement contained in Section 52-A of the NDPS Act. Prayer made by learned Additional Public Prosecutor cannot be accepted. Remand in Sau Parwatabai's Case was ordered owing to the peculiar facts and circumstances which prevailed therein. Besides this, in view of ratio laid down by the Supreme Court in Jitendra V State of MP(Supra) which is binding on this Court on all fours, judgment in Sau Parwatabai's case is distinguishable and it cannot be applied in this case. Mr Daga was right when he contended in reply that prosecution cannot be allowed to fill in lacunae after having violated the statutory requirement and what Section 52-A of the NDPS Act mandates.
10. It cannot be disputed that non-compliance with the statutory provision held mandatory by the Apex Court goes to the substratum of the prosecution case and entitles the accused to claim acquittal in such case."
SC No.84/2015 FIR No. 87/2015 State Vs Mohd Israil & Anr. Pages 26/36
37. In Shyamal Barman's Case(Supra), it has been observed as under:-
"19. As we have already stated the defects in the investigation are substantial and go to the root of the identity of the alleged contraband seized from the appellants. It is now well-settled that the procedure delineated under the NDPS Act for search and seizure must be scrupulously followed in order to obviate the substitution of any article seized, especially when the punishment under the Act is so severe. It is true as held in the case of C.Muniappan (Supra) that the outcome of a trial cannot be solely dependent on the probity of the investigation. However, when there are basic and fundamental flaws in the investigation of the case it is difficult to ignore the same as that would result in the impairment of justice. As stated earlier, the entire investigation in this case has been conducted without having any regard for the mandatory provisions of the NDPS Act. The contraband was seized in the absence of a Magistrate. There is no material on record which proves that the appellants were informed of their right under the Act to be searched in the presence of a Magistrate or that a seizure under the Act can be made only after mandatorily following certain requisites stipulated therein. After the seizure was made by the BSF personnel the steel box, the suitcase and the bedroll were not locked while being transported to the BSF Headquarters nor were they weighed at the spot where they were seized. The samples were drawn from each of the containers by the investigating Officer after the contraband was kept in the malkhana for some time in an unlocked condition. Thus anybody could have had access to the containers and the contraband therein. These lapses in the investigation certainly affect its authenticity. The case of the prosecution is based only on the testimonies of the BSF employees were involved with the raid and the apprehension of appellants. Though the non-examination of the members of the public at the place where the seizure was made would not be fatal to the prosecution's case, had the prosecution examined some independent witnesses from that area it would certainly lent SC No.84/2015 FIR No. 87/2015 State Vs Mohd Israil & Anr. Pages 27/36 credence to their case. The credibility of the prosecution witnesses is also in doubt. There are several discrepancies in the evidence. The investigation officer has not corroborated the version of the other witnesses. All these factors lead us to believe that the appellants have been falsely implicated in this case."
38. Section 52-A of NDPS Act deals with disposal of seized Narcotic Drugs and psychotropic substances.
39. Hon'ble Calcutta High Court in a case titled as Anil Kumar @ Anil Kumar Nawol & Anr. Vs The State of West Bengal decided on 15.01.2016 observed as under:-
"32. With regard to the submission made by the Learned Advocate appearing on behalf of the appellants that the investigating officer did not follow the procedure laid down in Section 52 A of the Narcotic Drugs and Psychotropic Substance Act. On perusal of Section 52A of the said Act, it is very clear that it relates to the disposal of seized Narcotic Drugs and Psychotropic substances. So this provision will come into play and the procedure enunciated therein will be required to be followed, if the contraband article is required to be disposed of before the conclusion of the trial. If the said contraband article is required to be preserved or is not required to be disposed before the conclusion of the trial, then the procedure laid down in Section 52A of the Code is not required to be followed. Therefore, it cannot be said that the prosecution or IO has committed a serious lapse by not following the procedure laid down in Section 52A of the Act. Indisputably, seized article in question had not been disposed of at the stage of investigation in the present case. Therefore, there was no question of following the said procedure.
33. Moreover, the applicability of Section 52A of the NDPS Act has been elaborately discussed by us in a judgment dated September 22, 2015 delivered in the matter of Kalimuddin Mia Vs The SC No.84/2015 FIR No. 87/2015 State Vs Mohd Israil & Anr. Pages 28/36 State of West Bengal (in re: CRA 548 of 2007). In the above judgment, we arrived at the above conclusion taking into consideration the proposition of law settled by the Hon'ble Supreme Court in this regard in the matter of the decision of State of Punjab Vs Makhan Chand, reported in (2004) 3 SCC 453 and the relevant portion of the above decision is quoted below:-
10.This contention to has no substance for two reasons. Firstly, Section 52A, as the marginal note indicates, deals with "disposal of seized Narcotic Drugs and Psychotropic Substances". Under sub-
section (1), the Central Government by a notification in official gazette, is empowered to specify certain Narcotic Drugs or Psychotropic Substance, having regard to the hazardous nature, vulnerability of theft, substitution, constraints of proper storage space and such other relevant consideration, so that even if they are material objects seized in a criminal case, they could be disposed of after following the procedure prescribed in sub-section (2) and (3). If the procedure prescribed in sub-sections (2) and (3) of Section 52A is complied with an upon an application, the Magistrate issue the certificate contemplated by sub-section (2), then sub-section (4) provides that notwithstanding anything to the contrary contained in the Indian Evidence Act, 1872 or the Code of Criminal Procedure, 1973, such inventory, photographs of Narcotic Drugs or substances and any list of samples drawn under sub-section (2) of Section 52A as certified by the Magistrate, would be treated as primary evidence in respect of the offence."
40. In the present case also, the contraband in question was produced in Court during trial. The contraband was not disposed of before commencement of trial. Prosecution witnesses were subjected to lengthy cross examination by Ld. Defence Counsel. During lengthy cross examination, Ld. Defence Counsel failed to elicit anything from the mouth of PWs to show that the case property has been tempered with. Ld. Defence Counsel has failed SC No.84/2015 FIR No. 87/2015 State Vs Mohd Israil & Anr. Pages 29/36 to show as to what prejudice has been caused to accused persons due to non disposal of case property at initial stages of trial. The contention of Ld. Defence Counsel that Section 52A of NDPS Act is mandatory and its non-compliance has rendered the entire prosecution case doubtful is without merits, in view of aforesaid judgments.
41. The next contention of Ld. Counsel for accused persons is that the testimony of PWs and more particularly of recovery witnesses is full of contradictions and such contradictions have made their testimony unreliable.
42. However, the aforesaid contention of Ld. Counsel for accused persons is also without merits. Firstly, no specific/major contradictions have been pointed out by Ld. Defence Counsel in the testimony of material witnesses/recovery witnesses. Secondly, minor variations in the testimony of witnesses is bound to occur more particularly in view of the fact that the witnesses were examined in Court after the lapse of considerable time from the date of seizure of contraband in question. Such minor variations cannot be termed as contradictions and such minor variations ipso facto does not mean that the entire prosecution version is false and fabricated one.
43. The next contention of Ld. Counsel for accused persons is that the investigation was carried out by a sub-ordinate officer than the search/seizure and recovery officer and due to this SC No.84/2015 FIR No. 87/2015 State Vs Mohd Israil & Anr. Pages 30/36 reason the entire investigation is tainted one.
44. However, the aforesaid contention of Ld. Counsel for accused persons is also without merits as Ld. Counsel for accused persons has failed to point out as to what prejudice has been caused to the accused persons due to the fact that the investigation in this case was later on carried out by an officer sub-ordinate to the officer who had apprehended the accused persons and seized the contraband in question. It appears that this ground has been taken by Ld. Counsel for accused persons merely for the sake of taking it. Ld. Counsel for accused persons has failed to demonstrate/point out as to how the investigation of the present case has been influenced by the superior officer i.e. the Officer who had apprehended the accused persons and seized the contraband in question.
45. Ld. Counsel for accused persons further argued that accused persons were apprehended/arrested and alleged recovery was made from them after sunset and before sunrise. In this regard, Ld. Counsel for accused persons has relied upon Section 42 of NDPS Act and also filed Hindu Calender of relevant date to show that the recovery was effected after sunset. Ld. Counsel argued that as per Section 42 of NDPS Act, IO/PW-3 was not legally competent to effect recovery after sunset and before sunrise.
SC No.84/2015 FIR No. 87/2015 State Vs Mohd Israil & Anr. Pages 31/36
46. However, this contention of Ld. Counsel for accused persons is also without merits. A careful perusal of relevant provisions of law i.e. Section 41 and 42 of NDPS Act and more particularly Section 41 (2) of said Act clearly shows that Section 41(2) deals with powers of Authorized Officers whereas Section 42 deals with powers of empowered officers. As per Section 41 (2) of said Act such Authorized officer can arrest, search a building, conveyance or place whether by day or by night. Thus, there is no limitation on the powers of Authorized Officer regarding time i.e. between sunrise and sunset. According to Section 41(3) of said Act, Authorized Officer shall have all the powers of an officer acting under Section 42. Perusal of Section 42 of said Act shows that it deals with powers of empowered officers. Section 41 of said Act deals with issuance of warrants and authorization whereas Section 42 deals with situations in which no warrants were issued and no authorization has been given. According to Section 42 of said Act, such powers can be exercised between sunrise and sunset. However, if such powers are to be exercised between sunset and sunrise then warrants/authorization shall be obtained. Proviso (2) to Section 42(1) carves out an exception to the said general rule. Section 42 of said Act has no applicability to the facts and circumstances of the present case.
47. The next contention of Ld. Counsel for accused persons is that IO of the case failed to conduct any investigation on some other material aspects of the present case i.e. travel of accused SC No.84/2015 FIR No. 87/2015 State Vs Mohd Israil & Anr. Pages 32/36 persons and also with regard to the alleged kingpin i.e. Mukesh.
48. However, this contention of Ld. Counsel for accused persons is also without merits as according to final report/chargesheet filed by IO under Section 173 of Cr.P.C., a notice under Section 67 of NDPS Act was given to alleged kingpin i.e. Mukesh. At page 11 of chargesheet, it is further mentioned that Mukesh alongwith his wife Rekha and sister-in- law Angura attended office of Narcotic Cell and they were produce before Inspector Kuldeep Singh. Statement of Mukesh was recorded wherein he stated that accused Mohd Israil and Dastgir are not known to him. Statement of Angura was also recorded wherein she stated that she resides in J.J. Colony Bawana and the accused persons also reside in said colony and they supply Ganja. In said report, it is further mentioned that no evidence could come on record against Mukesh, Rekha and Angura and after discussing with senior officers, name of Mukesh has been mentioned in column no.-12 of present chargesheet. The other aspects i.e. travel of accused persons etc were also investigated by the IO and even Sh Shailender Verma i.e. Senior Ticket Examiner, Hazrat Nizamuddin Railway Station, New Delhi has been cited as a witness in the list of witnesses. It is also pertinent to mention that Sh Shailender Verma appeared in witness box and was examined as PW-12. PW-12 even filed the reservation chart of 08.06.2015 and the attested copy of same is Ex.PW-12/A. SC No.84/2015 FIR No. 87/2015 State Vs Mohd Israil & Anr. Pages 33/36
49. In the present case, prosecution has produced and examined as many as 13 witnesses in support of its case. Out of said 13 witnesses, PW-3, PW-5 and PW-6 are recovery witnesses and the other remaining witnesses are pertaining to other material aspects of this case. I have carefully gone through the testimony of the recovery witnesses as well as the other witnesses. The testimony of recovery witnesses is clear, specific and inspires confidence. There is no reason to disbelieve the same. The said recovery witnesses have duly proved the important aspects of this case i.e. receipt of secret information, constitution of raiding party, apprehension of accused persons, recovery of contraband from possession of accused persons, service of notice under Section 50 of NDPS Act upon accused persons etc. The other witnesses have proved the other mandatory requirement of NDPS Act. PW-1 deposed regarding registration of FIR in question i.e. Ex.PW-1/A. Endorsement made by PW-1 on Rukka is Ex.PW- 1/B. Certificate under Section 65-B of Indian Evidence Act with regard to FIR is Ex.PW-1/C. PW-2 deposed regarding deposit of parcels, FSL Form, Seizure Memo in FSL Rohini on 12.06.2015. PW-4 i.e. ACP R.K. Tyagi deposed regarding authorization given by him and also regarding other aspects of this case. PW-7 i.e. ASI Narender Kumar conducted investigation of this case and after completion of the same, he filed the chargesheet in Court. PW-8 i.e. Ct Rajiv Kumar was posted as Reader to ACP Narcotic Cell and he deposed regarding report under Section 42 NDPS Act, special report under Section 57 NDPS Act etc. PW-9 i.e. Inspector Ravinder Kumar Sharma was posted as SHO Crime SC No.84/2015 FIR No. 87/2015 State Vs Mohd Israil & Anr. Pages 34/36 Branch on relevant date. He deposed regarding the deposit of parcels, suitcases, FSL Form and seizure memos in the malkhana after affixing his seal on the same. PW-10 Inspector Kuldeep Singh deposed that on relevant date SI Manoj Kumar alongwith secret informer came to his office and informed him about the secret information. PW-10 conveyed the said secret information to PW-4 i.e. Sh R.K. Tyagi, ACP Narcotics. PW-10 also deposed regarding directions received from PW-4 by him and also the constitution of raiding party and other aspects of this case. PW-11 Dr. S.K. Paul i.e. Senior Scientific Officer, Chemistry FSL Rohini proved his report i.e. Ex.PW-7/E and stated that the parcels were found to be Ganja (Cannabis). PW-12 i.e. Sh. Shailender Verma deposed regarding reservation chart i.e. Ex.PW-12/A. PW-13 is ASI Jag Narayan. PW-13 was posted as MHC(M) in PS Crime Branch Malviya Nagar on 10.06.2015. He deposed regarding deposit of Pullandas, FSL Forms, Seizure memos etc. PW-13 produced the relevant register no.-19 in Court and in his cross examination, PW-13 denied the suggestions given to him by Ld. Defence Counsel to the effect that false entries were made by him at the instance of IO and SHO.
50. By examining the aforesaid 13 witnesses in support of its case, prosecution has proved its case against both accused persons beyond reasonable doubt. The prosecution has also proved that all mandatory provision of NDPS Act have been duly complied with in this case and there is no illegality/irregularity in compliance of the same.
SC No.84/2015 FIR No. 87/2015 State Vs Mohd Israil & Anr. Pages 35/36 In the present case, charge for offence punishable U/s 20(c) and Section 29 r/w Section 20(b) and 20(c) of NDPS Act was framed against accused Mohd Israil. Charge for offence punishable U/s 20(b) and Section 29 r/w Section 20(b) and 20(c) of NDPS Act was framed against accused Mohd Dastgir. Section 20 (b) provides punishment for production, manufacturing, possession etc of Cannabis Plant and Cannabis. Section 20(b)(ii)
(c) deals with contravention involving commercial quantity. Section 20(b)(ii)(B) deals with contravention involving quantity lesser than commercial quantity but greater than small quantity. Section 29 of said Act provides punishment for abatement and criminal conspiracy.
H. CONCLUSION:-
In view of aforesaid facts, circumstances and discussion made hereinabove, accused Mohd Israil is hereby convicted for offences punishable U/s 20(c) and Section 29 r/w Section 20(b) and 20(c) of NDPS Act. Accused Mohd Dastgir is also convicted for offences punishable U/s 20(b) and Section 29 r/w Section 20(b) and 20(c) of NDPS Act. Digitally signed by DEEPAK (Judgment pronounced through V/C DEEPAK DABAS Date:
on Cisco Webex on 22nd June 2021) DABAS 2021.06.25 12:26:33 +0530 (DEEPAK DABAS) Additional Sessions Judge Special Judge(NDPS), Central Tis Hazari Court, Delhi SC No.84/2015 FIR No. 87/2015 State Vs Mohd Israil & Anr. Pages 36/36