Delhi District Court
State vs Rahees And Ors. on 14 November, 2017
IN THE COURT OF SH. AJAY PANDEY
ADDITIONAL SESSIONS JUDGE 04
PATIALA HOUSE COURTS: NEW DELHI.
CNR No. DLND010000352012
SC No. 8447/16
FIR No. 07/12
PS - Special Cell
U/s 21 (c) r/w section 29 of NDPS Act.
State
Vs.
1. Rahees
S/o Sh. Jamil
R/o H.No. 504, Bhalswa Dairy,
Delhi
2. Rafique
S/o Sh. Muzammil
R/o Kali Mandir Wali Gali,
Loni Distt. Ghaziabad, UP
State VS Rahees and ors.
FIR no. 07/2012
PS - Special Cell Page no. 1/58
3. Mohd. Hussain @ Lalu @ Langra
S/o Mohd. Yasin
R/o H.No. O13, First Floor,
Aaloo Mandi, Kidwai Nagar PS Juhi,
Kanpur, UP
4. Amit
s/o Sh Pramod Mandal
r/o A4441, PhII, Inder Enclave,
Kirari, Nangloi, Delhi
Date of Institution : 04.06.2012
Date of Arguments : 02.11.2017
Date of Judgment : 14.11.2017
JUDGMENT:
1. In brief case of the prosecution as per chargesheet is:
(a) In the year 2011 FIR no. 47/2011 was registered in PS Special Cell, Rohini and in the said case one Mohd.
Hussain @ Lalu @ Langra was wanted and could not be arrested. During the investigation of the said FIR some mobile numbers which were used by Lalu @ Langra and his associates were kept on interception and during the interception it was revealed that Lalu @ Langra and his State VS Rahees and ors.
FIR no. 07/2012 PS - Special Cell Page no. 2/58gang were operating and indulged in the business of drugs from Inder Enclave, Kirari, Nangloi and therefore ASI Raj Singh had deployed his sources in the said area to keep a watch on them.
(b) On 07.03.2012 at about 6:00 a.m. ASI Raj Singh telephonically received a secret information that Amit, Rahees and Kallo used to supply heroine in the area and were suspectedly doing heroine packing in H.No. A 444/I, Inder Enclave, Kirari, Nangloi. From the said house Amit would be going in the morning to deliver large consignment of heroine. The informer also told him that he would meet ASI Raj Singh near a pond and park where Chhat pooja celebrations are usually done and which is situated near the house in question.
(c) ASI Raj Singh recorded the said secret information on a plain paper and reduced the same into writing vide DD no. 33 and he also conveyed the said information to Insp. Attar Singh. Thereafter Insp. Attar Singh discussed the information with Sh. Subhash Tandon, ACP on telephone who directed immediate legal action. As per directions of senior officials, ASI Raj Singh constituted a raiding party comprising of himself, ASI Rakesh Kumar, State VS Rahees and ors.
FIR no. 07/2012 PS - Special Cell Page no. 3/58ASI Bijender Singh, ASI BB Gurang, ASI Bhushan Kumar, HC Rajbeer Singh, HC Radha Krishnana, HC Rajbir Singh and left the office of Special Cell in two govt. vehicles bearing no. DL1CJ 3566 and DL1CM 1346 driven by HC Rajbeer Singh and HC BB Gurang respectively. ASI Raj Singh also requested DO/Spl. Cell to send a woman police at the spot. At about 7.15 am raiding party reached Inder Enclave area where ASI Raj Singh requested 67 passersby and 4 residents of neighbouring houses to join the raiding team but none of them agreed to join the investigation. Thereafter, the members of the raiding team were briefed by ASI Raj Singh about secret information and further strategy to apprehend the suspected persons. The team members were deployed near the said house. ASI Raj Singh along with ASI Rakesh Kumar, HC Rajbir and the secret informer took position near Mandir (temple) towards western side of said house and remaining staff took position towards southeastern side of the said house in scattered position. ASI BB Gurang was positioned in park to keep watch upon said house. At about 10.00 am lady constable Manju also reached at the spot.
State VS Rahees and ors.
FIR no. 07/2012 PS - Special Cell Page no. 4/58(d) At about 10:30 a.m. one person having light green colour polythene packet in his right hand came out from the said house. The secret informer identified the said person as Amit. ASI Raj Singh along with staff tried to apprehend him but said Amit started running towards his house but he was overpowered near big door of the said house. In the meantime other staff also arrived and ASI Raj Singh handed over Amit along with recovered polythene from him to ASI B.B. Gurang and ASI Bhushan Kumar. Thereafter ASI Raj Singh along with ASI Rakesh, HC Rajbeer and lady constable Manju and few members of staff entered the said house and found one person namely Raheesh preparing heroine paper pudias in a room at first floor. Large quantity of prepared pudias containing heroine in a separate polythene and chemical and packing material was found in the said room. After leaving ASI Bijender Singh and HC Rajbeer along with Rahees in the said room, ASI Raj Singh along with ASI Rakesh, HC Rajbeer Singh and HC Radha Krishnan came out of the said house, where they left accused Amit.
(e) Accused Amit was then informed about the secret State VS Rahees and ors.
FIR no. 07/2012 PS - Special Cell Page no. 5/58information received by the raiding team and was then issued a notice u/s 50 of NDPS Act and was made to understand that he has a legal right to be searched before a Magistrate or a Gazetted Officer. The accused refused to exercise the said right and wrote his refusal in his own handwriting on the notice received by him. Thereafter, ASI Raj Singh took the formal search of accused Amit and then took the green polythene packet from his hand. On opening the polythene, it was found containing a transparent polythene and the said polythene in turn was found containing camel colour powder which on testing with the field testing kit came positive for heroine. The said recovered substance was then weighed and its weight came out to be 500 grams. Two samples of 5 grams each were taken out from the recovered heroin and were kept in two transparent polythene pouches and thereafter converted into cloth pullanda and were given mark A1 and A2. The polythene containing the remaining heroin was also converted into cloth pullanda and was given mark A. All the pullandas were sealed with the seal of RK. Form FSL was filled up and the impression of the same seal was then affixed on the FSL form.
State VS Rahees and ors.
FIR no. 07/2012 PS - Special Cell Page no. 6/58(f) Thereafter ASI Raj Singh along with other staff reached room at first floor of the said house where Raheesh had already been apprehended. Accused Raheesh was then disclosed about the secret information received by the raiding team and was then issued a notice u/s 50 of NDPS Act and was made to understand that he has a legal right to be searched before a Magistrate or a Gazetted Officer. The accused Raheesh refused to exercise the said right and his refusal was got recorded by SI Parveen Kumar in the handwriting of ASI Rakesh on the notice itself.
(g) ASI Raj Singh then took the search of the seven polythenes. Each of the said polythene was found containing 15 transparent polythenes and each transparent polythene was found containing 100 heroine pudias. All the pudias i.e. 10500 in number in aforesaid 7 packets were collected and thereafter 625 pudias which were lying near Rahees were also collected. Heroine of total 11125 pudias was collected in the above recovered transparent polythene. Thereafter the transparent polythene from which accused Raheesh was seen taking powder for making pudias was taken into possession and State VS Rahees and ors.
FIR no. 07/2012 PS - Special Cell Page no. 7/58it was found to contain camel colour powder. On testng the powder it gave positive result for heroine. Thereafter the collected powder was weighed and its weight came out to be 750 grams.
(h) Two samples of 5 grams each were taken out from the recovered heroin and were kept in two transparent polythene pouches and thereafter converted into cloth pullanda and were given mark B1 and B2. The remaining 740 gms heroine along with recovered polythene packets was converted into a separate parcel and was given mark B. The seven green colour polythene bags, 105 transparent packets recovered from the said polythene bags were converted into cloth pullanda and given mark C. Thereafter the 11125 paper pudias were put in a green polythene and then converted into cloth pullanda and was given mark D.
(i) Thereafter another polythene containing pink colour powder which was also kept near place of sitting of accused Raheesh was taken and weighed and its weight came out to be 1 kg. He disclosed that the said pink colour powder is Phenobarbital and is used for mixing the same with heroine. Two samples of 5 grams each were State VS Rahees and ors.
FIR no. 07/2012 PS - Special Cell Page no. 8/58taken out from the recovered powder and were kept in two transparent polythene pouches and thereafter converted into cloth pullanda and were given mark E1 and E2. The remaining 990 gms Phenobarbital was kept in the same polythene and converted into cloth pullanda and given mark E. One another red and green colour plastic bag having small pieces of papers which were recovered from the room of Rahees was given mark F.
(j) Thereafter a transparent polythene packet having many green colour polythene packets which were recovered from the said room of Rahees, was converted into a separate cloth pullanda and was given mark G. All the pullandas were sealed with the seal of RK. FSL form was filled up. Seizure memo was prepared. Rukka was prepared and was sent to PS Special Cell through HC Rajbeer Singh. Case property and FSL form along with carbon copy of seizure memo was also sent to PSSpecial Cell through HC Rajbeer Singh to hand over the same to SHO for counter sealing and depositing the same in Malkhana. FIR was lodged and further investigation was conducted by SI Parveen Kumar. SI Praveen Kumar came to the spot and prepared the site plan, arrested the State VS Rahees and ors.
FIR no. 07/2012 PS - Special Cell Page no. 9/58accused persons and their disclosure statements were recorded.
(k) Thereafter in pursuance to disclosure statements of both the accused persons Amit and Rahees, SI Praveen Kumar along with ASI BB Gurang, HC Suresh, HC Radha Krishanan, HC Rajbir Singh and both the accused persons left the spot for going to Nangloi metro station in government vehicle to apprehend accused Rafique, who was source of supply of heroine. After reaching the metro station Nangloi, IO requested 34 passersby to join the raiding team but none of them agreed to join the investigation. Members of the raiding team were deployed in a scattered position. At about 9:30 p.m. on the pointing of accused Amit and Raheesh, Rafique was apprehended near Nangloi Metro Station. At that time accused Rafique was carrying red and light yellow colour bag in his right hand. IO then introduced himself and the members of the raiding team to the accused Rafique and informed him about the disclosure statement of accused Amit and Raheesh and then issued a notice u/s 50 of NDPS Act. Accused Rafique was made to understand that he has a legal right to be searched before a State VS Rahees and ors.
FIR no. 07/2012PS - Special Cell Page no. 10/58 Magistrate or a Gazetted Officer. The accused refused to exercise the said right and his refusal was recorded by IO as accused Rafique had shown his inability to write.
(l) IO then took the red and yellow colour packet from the hand of accused Rafique. On opening the same, it was found containing one transparent polythene having camel colour substance in it, which on testing with the field testing kit gave positive for heroine. The said recovered substance was then weighed and its weight came out to be one kg. Two samples of 5 grams each were taken out from the recovered substance and were kept in two small poly packs and thereafter converted into cloth pullanda and were given mark H1 and H2. The transparent polythene containing the remaining heroine along with recovered polythene packets was converted into cloth pullanda and was given mark H. All the pullandas were sealed with the seal of PK. Seizure memo was prepared. FSL form was filled up. Seal after use was handed over to HC Suresh. Accused Rafique was arrested and interrogated. His disclosure statement was recorded.
(m) On 08.03.2012 at about 1.00 am, IO along with other staff and three accused persons and case property State VS Rahees and ors.
FIR no. 07/2012PS - Special Cell Page no. 11/58 reached the PS Spl. Cell, Lodhi Colony. Case property was deposited in the malkhana. SHO also verified the facts from all three accused persons. All three accused persons were produced before court and their 02 days PC remand was obtained.
(n) In pursuance of disclosure of accused Rafique, he was taken to his house (belonging to his mother in law) bearing no. 141A, Khasra no. 314, Meenakshi Enclave, Loni near Kali Mandir. On reaching there IO asked 56 neighbours to join the investigation but none agreed. Accused Rafique led the police party to a room at first floor and in the presence of his mother in law Ms. Shabana, the room was searched and three bags - one bag of light blue and yellow colour, second bag of red and cream colour in which 'Deep Golden Tea' was inscribed and third a small bag of red and blue colour, were recovered.
(o) Both the big bags were found containing 13 big light green colour polythene and transparent polythene packets inside green polythenes. Each packet was containing 100 paper pudias numbering total 19500 paper pudias. Each pudia was containing some substance State VS Rahees and ors.
FIR no. 07/2012PS - Special Cell Page no. 12/58 which was collected in a transparent polythene and was tested with the field testing kit and it gave positive for heroine. The said recovered substance was then weighed and its weight came out to be 525 grams along with polythene. Two samples of 5 grams each were taken out from the recovered heroin and were kept in two small poly packs and thereafter converted into cloth pullanda and given mark I1 and I2. The polythene containing the remaining heroin was also converted into a parcel and was given mark I. FSL form was filled up. Thereafter, the third small bag was opened and it was found containing one red colour polythene packet having silver colour flower and leaves printed upon polythene containing matiyala (earth) colour powder, accused Rafique informed that the aforementioned substance is phenobarbital. The said recovered substance was then weighed and its weight came out to be 1 kg. On testing, the substance gave negative test for heroine. Two samples of 5 grams each were taken out from the recovered substance and were kept in two small polythene pouches and thereafter converted into cloth pullanda and were given mark J1 and J2. The polythene State VS Rahees and ors.
FIR no. 07/2012PS - Special Cell Page no. 13/58 containing the remaining phenobarbital was also converted into a parcel and was given mark J. FSL form was filled up. Thereafter all the pullandas were sealed with the seal of PK and the same seal was also affixed on FSL form. Seizure memo was prepared. Seal after use was handed over to HC Suresh. The room was also searched and the documents recovered were also seized.
(p) The case property was then produced before Inspector R.S. Sehrawat, SHO who affixed his seal of RSS on all the pullandas and deposited the same with MHCM. Further investigation was handed over to SI Jitender Tiwari. He along with SI Bijender Singh and HC Ramesh went to Kanpur in search of Mohd. Hussain @ Lalu @ Langra as his name surfaced in the disclosure statement of accused Rafique as the supplier. On 18.04.2012 accused Mohd. Hussain @ Lalu @ Langra was apprehended from Kidwai Nagar crossing, Kanpur.
(q) SI Jitender Tiwari then introduced himself and the members of the raiding team to accused Mohd. Hussain and informed him about the disclosure statement of accused Rafique and then issued a notice u/s 50 of NDPS Act. Accused Mohd. Hussain @ Lalu @ Langra was made State VS Rahees and ors.
FIR no. 07/2012PS - Special Cell Page no. 14/58 to understand that he has a legal right to be searched before a Magistrate or a Gazetted Officer. The accused refused to exercise the said right and wrote his refusal. Accused Mohd. Hussain was arrested and his search was conducted but nothing incriminating was recovered from his personal search. In his personal search two pocket diaries containing several mobile numbers of associates and other articles were recovered. Accused was interrogated and his disclosure statement was recorded. The numbers contained in the diaries were analyzed through CDRs.
(r) Reports u/s 57 NDPS Act pertaining to the seizure and arrest of accused persons were submitted to the senior officials. Photographs of Mohd. Hussain @ Lalu @ Langra and Rafique were shown to some local residents of Meenakshi Enclave, Loni and two of the local residents namely Rajesh and Jamil Ahmed identified them in the said photographs and stated that they had seen Mohd. Hussain visiting the house of accused Rafique i.e. 141A, Khasra No. 314, Meenakshi Enclave, Loni, Ghaziabad frequently.
(s) Thereafter the sample pullandas were sent to FSL, State VS Rahees and ors.
FIR no. 07/2012PS - Special Cell Page no. 15/58 Rohini. After receiving the reports from FSL with respect to the contraband, the present chargesheet was filed.
2. On the basis of material placed on record, charges were framed by the Ld. Predecessor of this court vide order dated 20/7/2013 against accused Mohd. Hussain for the offences punishable u/s 21 (c) of NDPS Act r/w section 29 of the NDPS Act and against accused Amit, Raheesh and Rafique for the offences punishable u/s 29, 21 (c) r/w section 29 of the NDPS Act. All accused persons pleaded not guilty to the said charges and claimed trial.
3. The prosecution in order to prove its case has examined 26 witnesses in all.
4. PW9 ASI Raj Singh, PW22 SI Rakesh and PW26 HC Rajbir Singh are members of the raiding team which had apprehended accused Amit and Raheesh. All have deposed on similar lines and have reiterated more or less the assertions made in the charge sheet. As per their depositions, the secret information received by PW9 was reduced into writing vide DD no. 33 and has been exhibited as ExPW4/A. The plain paper in which PW9 had reduced the secret information has been exhibited as ExPW4/B. The notices issued to the accused Amit and State VS Rahees and ors.
FIR no. 07/2012PS - Special Cell Page no. 16/58 Raheesh u/s 50 of the NDPS Act have been exhibited as Ex.PW9/A and ExPW9/B with the refusal written by them at point X to X on their respective notices. The seizure memo has been exhibited as Ex.PW9/C.
5. PW25 SI Praveen Kumar is the second investigating officer of the present case who has deposed that on reaching the spot along with PW12 HC Rajesh he had met ASI Raj Singh, who produced before him the accused persons and documents prepared by him. As per this witness he had thereafter prepared the site plan Ex.PW25/A and had arrested accused Amit and Raheesh vide arrest memos Ex.PW22/A and ExPW22/B. According to this witness he had recorded disclosure statement of accused persons vide memos Ex.PW22/E and ExPW22/F and had conducted their personal search vide Ex.PW22/C and ExPW22/D.
6. PW25 deposed that pursuant to disclosure statement of accused Amit and Rahees, a raiding team was constituted by him consisting of PW12 HC Suresh and others and accused Rafique was apprehended on the pointing of accused Amit and Raheesh. The notice issued to accused Rafique u/s 50 of the NDPS Act has been State VS Rahees and ors.
FIR no. 07/2012PS - Special Cell Page no. 17/58 exhibited as Ex.PW12/A with the refusal written by accused at point P to P1. The seizure memo of drugs has been exhibited as Ex.PW12/B. As per this witness he had thereafter prepared the site plan Ex.PW25/C and had arrested accused Rafique vide arrest memo Ex.PW12/C. According to this witness he had recorded disclosure statement of accused vide memo Ex.PW25/B and had conducted his personal search vide Ex.PW12/D. Pursuant to disclosure statement of accused Rafique raiding party reached his house bearing no. 314, Meenakshi Enclave, Loni near Kali Mandir and recovery was effected there. Seizure memo has been exhibited as ExPW12/E. Site plan of the spot has been exhibited as ExPW25/D. This witness has also inter alia proved the report prepared by him u/s 57 NDPS Act as Ex.PW4/D and ExPW4/E.
7. Pursuant to disclosure statement of accused Rafique a raiding team was constituted by PW13 SI Jitender Tiwari. He deposed that he and PW7 HC Ramesh along with other team members went to Kanpur in search of Mohd. Hussain and on 18/4/2012 on receipt of secret information and upon identification of secret informer accused Mohd. Hussain was apprehended from Kidwai State VS Rahees and ors.
FIR no. 07/2012PS - Special Cell Page no. 18/58 Nagar crossing, Kanpur. The notice issued to accused Mohd. Hussain u/s 50 of the NDPS Act has been exhibited as Ex.PW13/A and the refusal written by accused has been exhibited as ExPW7/A. As per this witness he had arrested accused Mohd. Hussain vide arrest memo Ex.PW7/C and had recorded disclosure statement of accused vide memo Ex.PW7/D. This witness has also inter alia proved the report prepared by him u/s 57 NDPS Act as ExPW4/F.
8. PW1 Sh. Israr Babu, Alternate Nodal officer from Vodafone has proved on record the call details pertaining to mobile numbers 8447500416 (recovered from accused Amit) for the period 20/02/2012 to 7/3/2012 and the same have been exhibited as Ex.PW1/C. He has also placed on record the customer application form, photocopy of election identity card. Same are in the name of one Sunil Kumar Mandal and have been exhibited as ExPW1/A and ExPW1/B.
9. PW2 Ms. Fatima Bibi, was called to prove occupation of house No. A444I with accused Amit and Rahees. She inter alia deposed that she is running a shop of selling utensils, trunks etc. at J.J. Colony, Bawana and her State VS Rahees and ors.
FIR no. 07/2012PS - Special Cell Page no. 19/58 husband runs a three wheeler for transportation of goods and from their savings they had purchased a house bearing no. 444, Block A in Nangloi along with her brother in law. According to this witness they had not let out the said house which only had a ground floor and boundary in the year of its purchase or at any time thereafter. This witness was declared hostile and cross examined by Ld. Addl. PP but nothing incriminating has come out in her cross examination.
10. PW3 Ms. Shabana, was called to prove occupation of and recovery from H. No. 141A, Meenakshi Enclave with accused Rafiq. She has inter alia deposed that the H.No. 141 A, Khasra No. 314, Meenakshi Enclave, Loni Ghaziabad belongs to her and Ashok Vihar and Meenakshi Enclave refer to the same colony. She had purchased the premises of the said house from one Selek Ram. Rafique is her son in law and he had never resided in the aforementioned premises and stays with her daughter and his family in his native village in West Bengal. He comes to her residence once in 12 years for a few days to visit. According to this witness after the arrest of accused Rafique police came to her house and enquired about the ownership State VS Rahees and ors.
FIR no. 07/2012PS - Special Cell Page no. 20/58 of the said house and took the original documents of the property. The documents has been exhibited as ExPW3/A Colly. This witness was declared hostile and was cross examined by Ld. Addl. PP but nothing incriminating has come out in her cross examination.
11. PW4 Sh. Subhash Tandon, ACP has inter alia deposed that on 07.03.2012 at about 6.30 am Inspector Attar Singh informed him telephonically that ASI Raj Singh has received an information that Amit, Rahees and Kallo R/o H. No. A4441, Inder Enclave, Phase II, Kiradi Village, Nangloi were indulged in packing and supply of heroine and Amit would leave the house in the morning to supply the heroine. Thereafter, PW4 instructed Inspector Attar Singh to act as per law. Original DD no. 33 dated 07.03.2012 and the information recorded on a piece of paper was produced before him. Two reports u/s 57 NDPS Act was also produced before him and he made endorsement on the said reports. He also made endorsements on the report prepared by SI Praveen Kumar and SI Jitender Tiwari, in compliance of section 57 NDPS Act.
12. PW5 Dr. Kanak Lata Verma, Senior Scientific Officer (Chemistry) FSL, Rohini, examined the samples and has State VS Rahees and ors.
FIR no. 07/2012PS - Special Cell Page no. 21/58 proved the chemical analysis report prepared by her in this regard as Ex.PW5/A.
13. PW6 SI Gyan Chand, was posted as SO to ACP/NR at Special Cell/NR at the relevant time. He testified that DD no. 33 dated 07.03.2012 regarding secret information made by ASI Raj Singh and a paper having the information mentioned in DD no. 33 Ex.PW6/A was received in the office of ACP/NR which was endorsed vide diary no. 562 Ex.PW6/B and 562A Ex.PW6/C dated 07.03.2012. The same were put up before ACP/NR, who signed the same. He further proved the reports u/s 57 NDPS Act regarding arrest of accused Rahees and Rafique received in the office of ACP vide diary no. 568 and 569 as Ex.PW6/D and Ex.PW6/E respectively. He further proved report u/s 57 NDPS Act Ex.PW6/G regarding seizure of heroine and packing material received in the office of ACP vide diary no. 570 Ex.PW6/H. He also proved the report u/s 57 NDPS Act qua arrest of accused Md. Hussain Ex.PW6/I received in the office of ACP vide diary no. 942 as Ex.PW6/J.
14. PW8 HC Sanjeev, testified that on 13.03.2012 he was posted in PSSpecial Cell and used to assist Malkahana Incharge ASI M. Baxla. In his absence he used to receive State VS Rahees and ors.
FIR no. 07/2012PS - Special Cell Page no. 22/58 the articles to be deposited in the malkhana. He also used to hand over samples for being sent to FSL on the instructions and in presence of ASI M. Baxla. On 13.03.2012, he handed over six sealed pullandas and three FSL forms of of this case to ASI Prabodh Kumar to be deposited in FSL. He proved the road certificate as Ex.PW7/A.
15. PW10 Rajesh Kumar and PW11 Jamil Ahmed, were both residents of Loni Ghaziabad. They both identified accused Md. Hussain, in the court as a person who visited that locality.
16. PW14 Zamal Gaji, testified that he was working as labourer and was native of Bengal. In the year 2012 he had purchased a mobile phone no. 8130358192 in his name and after using it for a few days he had given the SIM card to one Rahees, R/o C2 Block, JJ Colony as Rahees was known to him.
17. PW15 Sh. R.K. Singh, is the Nodal Officer, Airtel who proved Customer Application Form (CAF) pertaining to mobile no. 8130358192 as Ex.PW15/A, photocopy of voter identity card submitting along with customer application form as Ex.PW15/B and call detail record of the above said State VS Rahees and ors.
FIR no. 07/2012PS - Special Cell Page no. 23/58 number w.e.f. 20.02.2014 to 07.03.2012 running into 4 pages as Ex.PW15/C. He further proved the CAF pertaining to mobile no. 8826613538 in the name of Anil Kumar Mandal as Ex.PW15/D, photocopy of voter identity card submitted along with CAF as Ex.PW15/E and call detail record of said number w.e.f. 20.02.2014 to 07.03.2012 running into 4 pages as Ex.PW15/F. He further proved the CAF pertaining to mobile no. 9971627643 in the name of Arun as Ex.PW15/G, photocopy of voter identity card submitted along with CAF as Ex.PW15/H and call detail record of said number w.e.f. 20.02.2014 to 07.03.2012 running into 4 pages as Ex.PW15/I. He further proved the CAF pertaining to mobile no. 8400561160 in the name of Ram Prasad as Ex.PW15/J, photocopy of voter identity card submitted along with CAF as Ex.PW15/K and call detail record of said number w.e.f. 20.02.2014 to 07.03.2012 and 28.03.2012 to 18.04.2012 as Ex.PW15/L. He also proved the cell ID chart of Delhi circle and UP East Circle as Ex.PW15/M and 15/N respectively and certificate u/s 65B Indian Evidence Act as Ex.PW15/O.
18. PW16 Vijender Singh, UDC, Sub Registrar, Rohini brought the certified copy of a Will with respect to property State VS Rahees and ors.
FIR no. 07/2012PS - Special Cell Page no. 24/58 bearing no. A444, Old .No. 57, Village Kirari, Suleman Nagar, known as A Block Inder Enclave. The said Will was registered vide registration no. 2528 in additional book number III, vol. 188 on pages 5456. He proved the certified copy of the said Will as Ex.PW16/A.
19. PW17 Sh. D.K. Mishra, UDC, Home Department, GNCT of Delhi, has proved the orders passed by Sh. Arvind Ray, Principal Secretary (Home) dated 13.02.2012 and 27.03.2012 granting permission for interception of certain mobile numbers as Ex.PW17/A and Ex.PW17/B.
20. PW18 Inspector Nagesh Kumar Vadhera, is the fingerprint expert, who had analyzed the fingerprints of accused Md. Hussain @ Lalu with the record available with them and found that Md. Hussain @ Lalu was the same person who was convicted in FIR no. 2/2005, PS Narcotics Branch.
21. PW19 ASI Prabodh Kumar, had taken the six exhibits from MHC(M) PSSpecial Cell along with three FSL forms to FSL Rohini.
22. PW20 Inspector R.S. Sehrawat, was posted as SHO on 07.03.2012 with PSSpecial Cell. He deposited the case property in the Malkhana.
State VS Rahees and ors.
FIR no. 07/2012PS - Special Cell Page no. 25/58
23. PW21 ASI Mathias Baxla, was working as MHC(M) with PSSpecial Cell during the relevant time. He deposed that the entire case property was deposited by PW20 Inspector R.S. Sehrawat with him in the Malkhana.
24. PW23 Sunil Mandal, testified that accused Amit was his nephew. He testified that phone number 8447500416 was issued in his name. His son had purchased the said phone number for him 45 months before the apprehension of accused Amit in the present case.
25. PW24 HC Yogesh Kumar, has deposed that as per record of Narcotics Cell, accused Md. Hussain @ Lalu @ Langra, was involved in two cases of NDPS Act at Narcotics Branch in case FIR no. 2/05 PSNarcotics Branch. In the said case accused was already convicted with imprisonment already undergone by him and a fine of Rs.1000/ was also imposed by the court of Sh. S.C. Malik, the then learned Special Judge, Karkardooma court vide order dated 12.07.2006. He was also convicted in case FIR no. 22/07 PSNarcotics Branch with imprisonment already undergone by him and fine of Rs.15,000/ was also imposed by the above said court on 26.07.2008. He proved the relevant page of the register brought by him as Ex.PW24/A and State VS Rahees and ors.
FIR no. 07/2012PS - Special Cell Page no. 26/58
Ex.PW24/B.
26. The entire aforementioned evidence was put to all the accused persons at the time of recording of their statement u/s 313 Cr.PC which was denied by them.
27. Accused Amit stated that he has been falsely implicated in the present case. He was native of Bihar and his family consists of his parents, two younger brothers and three younger sisters. His father was living in Delhi, with one of his brother. His father was Rajmistri and used to run a small kirana shop in Delhi. His mother with his sisters reside in village Samastipur Dharampur Banni, Bihar, while he was residing with his Mamaji in village Khapur, Bihar. He used to help his mamaji in agricultural activities. He used to sometimes occasionally visit his father in Delhi. He further stated that one month before his apprehension in this case he had come to Delhi because his father had to attend the marriage of his cousin sister in the village and he had called him to look after the shop in his absence. His father and his brother reside in a juggi at JJ Colony, Qutub Road, New Delhi and his father runs a grocery shop in the said area. On the date of his apprehension he and his mother were present in their jhuggi while his younger State VS Rahees and ors.
FIR no. 07/2012PS - Special Cell Page no. 27/58 brother and his sister who had come along with his mother from village had gone to his uncle's house. At 5.00 am 56 persons barged into their jhuggi and introduced themselves as police officials. They were in plain clothes and told his mother that he had to be taken away since he had been named in some 'ladai jhagda case' by somebody. He and his mother pleaded with the officials that he had not been indulged in fighting or quarrel with any person in the locality, the said persons took him away and brought him to some office which was later on revealed to him as the office of Special Cell, Rohini. At the said office police officials told him that he should sign on some blank documents and should write a few lines as per their instructions and thereafter they will let him go. He signed 78 blank documents. He further stated that he had written on notice Ex.PW9/A on the instructions of police officials. He categorically stated that no contraband was recovered from him and he even do not know accused Raheesh, Rafiq and Md. Hussain. He had seen Rahees and Rafiq for the first time when all three of them were taken for medical examination by police officials.
28. Accused Rahees stated that he was innocent and was State VS Rahees and ors.
FIR no. 07/2012PS - Special Cell Page no. 28/58 falsely implicated in this case. He never resided in H. No. 4441, Inder Enclave, Phase II, Kirari, Nangloi. Before his apprehension in this case he use to work as a waiter in marriage parties and used to reside along with his parents, two brothers, his wife and his two children in C2504, Bhalswa dairy, near Jahangir Puri, Delhi. On 06.03.2012 at about 8.00 pm, 67 persons in civil clothes carrying dandas in their hands had come to his house and forcibly picked him up from his house. Those persons told him that they were police officials from Rohini and they have to conduct some inquiry from him. They took him in a white vehicle to an office where he was locked up in a room. He was asked to sign some blank documents. He refused to sign the same. Police officials gave him 23 slaps on his face. He became very scared and signed on all the documents on which police officials told him to sign. He further stated that no contraband was recovered from him. He was implicated in this case at the instance of a police official with whom he had a quarrel about 1 ½ months before his apprehension in this case. He had a fight with him in a marriage party and he threatened him that "tujhe baad main dekh lenge tu janta nahi hum kaun hain".
State VS Rahees and ors.
FIR no. 07/2012PS - Special Cell Page no. 29/58
29. Accused Rafiq stated he was innocent and was falsely implicated in this case. He was native of West Bengal, where he was living along with his family. In the year 2005 he had come to Delhi and had opened a small factory of manufacturing ladies purse near the Filmistan area. However, 1 - 1 ½ years before his apprehension he had a fight with one Zahid due to some payment dispute. Said Zahid had even brought the police to his factory. He had therefore closed his factory and had gone back to his village. 34 days before his apprehension he had come back to Delhi. On the date of apprehension he was to meet his acquaintance at a tea shop near Filmistan area. At about 8.309.00 am while he was standing near the said tea shop one vehicle came and stopped near him. 45 persons got down from the said vehicle and forcibly made him sit in the said vehicle and took him away to some building. He was then locked up in a room of the said building and was told by police officials to sign some blank papers. He refused to sign the same. Police officials gave him 23 slaps on his face. He became scared and signed all the documents on which the police told him to sign. No contraband was recovered from him or at his instance.
State VS Rahees and ors.
FIR no. 07/2012PS - Special Cell Page no. 30/58
30. Accused Md. Hussain @ Lalu @ Langra stated that he was innocent and was falsely implicated in the present case. He do not know any of the accused persons in the present case and was never indulged in the business of acquiring or selling drugs with the accused persons in this case. He had never spoken to accused persons in this case either telephonically or otherwise. He was forcibly picked up from his residence i.e. Baradevi, Aloo Mandi, Kidwai Nagar, Kanpur and thereafter was brought to Delhi, where he was beaten up mercilessly by police officials. He was forced to write on some documents. No mobile phone was recovered from his possession nor did he used any of the phone numbers shown to have been intercepted in the present case.
31. Accused Amit and Rahees, chose to lead evidence in defence.
32. DW1 Smt. Shyampari Devi, is the mother of accused Amit. She deposed that one month before the apprehension of accused Amit, he had come to Delhi to look after her husband's shop as her husband had to attend the marriage of the daughter of his elder brother. She had also come to Delhi 56 days before the apprehension of his son Amit. On State VS Rahees and ors.
FIR no. 07/2012PS - Special Cell Page no. 31/58 the date of apprehension of accused Amit, she along with him was present in the jhuggi, when 56 persons barged into their jhuggi and introduced themselves as police officials. They were in plain clothes and told her that Amit had to be taken away because he had been named in some "ladai jhagda case" by somebody. They pleaded with police officials that Amit had not been indulged in fighting or quarrel with any person in the locality but still those persons took him away. She went to local PS at Sadar but they scolded her and sent her away and told her that her son was not with them. They however told her that her son was in some office in Rohini. She went there but there also she was turned away and was not allowed to meet her son. She further stated that her son has been falsely implicated in this case as few days before his apprehension he had a fight with her bhanja Sanjay. Her husband even scolded Sanjay many times as he used to deal in drugs and tried to sell the same from outside their shop.
33. DW2 Ms. Zarina, is the mother of accused Rahees.
She deposed that she used to work as house maid but after her right hand got injured she has been staying at home only. Her son Rahees used to work as a waiter in marriage State VS Rahees and ors.
FIR no. 07/2012PS - Special Cell Page no. 32/58 parties and used to reside with family consisting of herself, her husband, his two brothers, their wife and two children in C2504, Bhalswa Dairy, near Jahangirpuri, Delhi. She further stated that on 06.03.2012 at about 8.00 pm, 4 persons came in civil clothes to her house and took her son in their vehicle. She tried to stop them but they told her that they were police officials. Next morning she along with her husband went to PS Rohini but they were not allowed to meet Rahees and were scolded and sent back. Later on they were told by the police that their son would be produced in Tis Hazari Courts. She proved the complaint made by her against the police officials as Ex.DW2/A.
34. The court heard arguments addressed by learned S.K. Kain learned Addl. PP for State and learned Advocate Sh. R.K. Giri and Sh. Ratneshwar Pandey for accused Amit and Rahees, Sh. S.K. Santoshi learned Advocate for accused Rafiq, Sh. S.S. Dass learned Advocate for accused Md. Hussain @ Lalu @ Langra and has also gone through the record carefully.
35. Separate charges were framed against all accused persons.
36. Firstly, court shall deal with independent recovery State VS Rahees and ors.
FIR no. 07/2012PS - Special Cell Page no. 33/58 from each accused and thereafter the conspiracy angle between them shall be analyzed.
Recovery from accused Amit and Rahees :
37. First set of alleged recovery in this case relates from the possession of accused Amit i.e. 500 gm of heroine when he came out from H. No. A4441, Inder Enclave, Phase II, Kirai, Nangloi and inside the said house accused Raheesh was busy in packing 750 gms of heroine.
38. Learned counsels for accused Amit and Rahees i.e. Sh. R.K. Kiri and Ratneshwar Pandey, have raised following points for determination:
a) Compliance of section 42 NDPS Act is doubtful.
b) Seizure of heroine as alleged is doubtful.
c) Noncompliance of section 55 NDPS Act, safe custody and transportation of case property and samples.
d) Prosecution failed to prove link of accused Amit and Rahees with H. No. A4441, Inder Enclave, Phase II, Kirari, Nangloi.
e) Arrest of accused persons in the manner as suggested by the prosecution is doubtful.
COMPLIANCE OF SECTION 42 NDPS ACT : State VS Rahees and ors.
FIR no. 07/2012PS - Special Cell Page no. 34/58
39. As per chargesheet and testimony of witnesses the present case was opened while intercepting 16 mobile numbers to trace kingpin and source of supply i.e. accused Md. Hussain @ Lalu @ Langra, in case FIR no. 47/2011 u/s 21/29/61/85 NDPS Act, PSSpecial Cell, Lodhi Colony.
40. Hence, accused Md. Hussain @ Lalu @ Langra, charge sheeted in the present case, was allegedly the kingpin and source of supply in the case FIR no. 47/2011. During the course of arguments learned Sh. S.K. Santoshi, counsel for accused has filed certified copy of some proceedings and evidence in FIR no. 47/2011. Perusal of the chargesheet in the said case reflects that accused Md. Hussain @ Lalu @ Langra, was never chargesheeted in the said FIR nor he was declared proclaimed offender. Interestingly, IO Parveen Kumar who has been examined in this case as PW25, was also the IO of the said FIR no. 47/2011 and was examined as PW15 in the said case. During his crossexamination recorded on 08.10.2013, he categorically admitted that he was aware of the arrest of accused Md. Hussain @ Lalu @ Langra in the year 2012 itself and came to know about the whereabout of accused Md. Hussain @ Lalu @ Langra but did not see him in connection with that case. When accused State VS Rahees and ors.
FIR no. 07/2012PS - Special Cell Page no. 35/58 Md. Hussain @ Lalu @ Langra was never visited in connection with any inquiry or investigation in case FIR no. 47/2011, he was never confronted with any of the accused in the said FIR, no inquiry qua his involvement in the said FIR no. 47/11 was done, the case of the prosecution that he was kingpin and source of supply in the said FIR and prosecution was intercepting 16 mobile numbers to trace him, falls flat.
41. Apart from this the investigation in the present FIR begins on the receipt of DD no. 33 Ex.PW6/A which was allegedly recorded at 6.00 am on 07.03.2012 on receipt of secret information through telephone that Amit, Rahees and Kallo, used to supply heroine and were doing heroine packing in H. No. A4441, Inder Enclave, PhaseII, Kirari, Nangloi. Recording of this information is under serious shadow of doubt.
42. After DD no. 33 at 6.00 am dated 07.03.2012, DD no.
34 at 6.45 am was recorded according to which the raiding team had left PSSpecial Cell. Thereafter, DD no. 3 was recorded at 9.05 am on 07.03.2012 through which woman constable Manju was called at the spot. Thereafter DD no. 18 was recorded at 3.30 pm through which IO PW5 State VS Rahees and ors.
FIR no. 07/2012PS - Special Cell Page no. 36/58 Parveen Kumar, departed from Special Cell.
43. PW12 HC Suresh in his crossexamination dated 11.12.2013 at page no. 9 categorically admitted that there is only one DD register maintained in the special cell and the entries in the same are maintained in increasing order. Recording of DD no. 33 at 6.00 am and then recording of DD no. 3 at 9.05 am and DD no. 18 at 3.30 pm, reflects that either the entries in the DD register were manipulated or the register was not properly maintained. Otherwise, there could not have been any reason for haphazardly recording the DD entries. Hence, the authenticity of DD no. 33 cannot be verified. The said DD is the document through which the compliance of section 42 NDPS Act was made and the alleged secret information was recorded in writing and was put up before the senior officers. Furthermore original DD register was not produced in the court. Hence, the compliance of section 42 NDPS Act is under shadow of doubt.
44. Hon'ble Supreme Court in the case of State of Punjab Vs Balbir Singh (1994) 3 SCC 299, held : The object of NDPS Act is to make stringent provisions for control and regulation of operations relating to those State VS Rahees and ors.
FIR no. 07/2012PS - Special Cell Page no. 37/58 drugs and substances. At the same time, to avoid harm to the innocent persons and to avoid abuse of the provisions by the officers, certain safeguards are provided which in the context have to be observed strictly. Therefore these provisions make it obligatory that such of those officers mentioned therein, on receiving an information, should reduce the same to writing and also record reasons for the belief while carrying out arrest or search as provided under the proviso to section 42 (1). To that extent they are mandatory.
Consequently, the failure to comply with these requirements thus affects the prosecution case and therefore vitiates the trial.(emphasis supplied) SEIZURE OF HEROINE:
45. As per the prosecution case the drugs recovered from accused Amit and Rahees were sealed with the seal of RK. PW9 ASI Raj Singh was the investigating and seizing officer of the recovery allegedly made from accused Amit and Rahees. The seal was not belonging to ASI Raj Singh. He has categorically stated that the seal was borrowed from one HC Ramesh Kumar. The departure entry of the raiding team was allegedly made through DD no. 34 dated 07.03.2012. As per this entry as well as, as per the charge State VS Rahees and ors.
FIR no. 07/2012PS - Special Cell Page no. 38/58 sheet and testimony of prosecution witnesses, HC Ramesh Kumar was not the member of the raiding team. It is therefore doubtful as to how PW9 IO ASI Raj Singh was keeping the seal of HC Ramesh Kumar. How could he borrow the same from said HC Ramesh Kumar, when he was not the member of raiding team and why IO PW9 did not use his own seal or the seal of any other raiding team member. The said HC Ramesh Kumar has not been made a witness in the present case.
46. The alleged seizure further creates doubt in view of the nonproduction of the log book of the official vehicles i.e. DL 1 CJ 3566 and DL 1 CM 1346. The drivers of these vehicles have not been examined nor the log book was produced or proved on record. In the facts and circumstances, even the visit of members of raiding team is doubtful.
47. In the case of Ram Prakash Vs State 2014 (146) DRJ 629, Hon'ble Delhi High Court while appreciating the evidence, opined that the production of log book joined in the investigation will go long way to prove or disprove a criminal case and observed as under: "24. It is also in the above context with State VS Rahees and ors.
FIR no. 07/2012PS - Special Cell Page no. 39/58 the failure to produce the log book for the movement of the vehicle of the raiding party and the failure to examine the driver Rajesh assumes significance. There should have been no difficulty at all in producing such evidence if needed the raiding party moved to the spot from their office in a government vehicle driven by Constable Rajesh Kumar."
48. Learned defence counsel appears to have correctly submitted that there are no serious efforts which are reflected in the chargesheet to show that IO made efforts for making public or independent witness to join the proceedings of alleged recovery. In the case of Ram Prakash (supra), Hon'ble High Court held "It has almost become a routine practice for the police to state that passersby were asked to join and they declined and went away without disclosing their names. The Court should be wary of readily accepting such explanations. In a case where a raid takes place in broad daylight in a busy area, a more convincing explanation has to be offered by despite remaining at the spot for about eight hours the police did not find a single public witness to join the proceedings."
49. In the present case IO has made cyclostyled narration State VS Rahees and ors.
FIR no. 07/2012PS - Special Cell Page no. 40/58 that persons of public did not join the investigation and left the spot without telling their names and particulars. No action qua those persons was taken by IO. IO could have noted their names or particulars. It is important to mention here that there are 4 sets of recovery in the present case but in none of the recovery any independent witness joined, which makes the case of prosecution further doubtful.
COMPLIANCE OF SECTION 55 NDPS ACT AND SAFE CUSTODY AND TRANSPORTATION OF CASE PROPERTY AND SAMPLES:
50. As per section 55 of NDPS Act, officer in charge of the police station is supposed to take charge of the case property, seal the same with his own seal and has to keep the same in safe custody.
51. As per the chargesheet in the present case, case property and FSL form, after seizure of contraband from accused Amit and Rahees was sent to PSSpecial Cell which was counter sealed by Inspector Rajender Singh Sehrawat, SHO PSSpecial Cell, with his seal of RSS and he deposited the same in the malkhana but the corresponding entries in register no. 19 of the malkhana do not reflect that any seal State VS Rahees and ors.
FIR no. 07/2012PS - Special Cell Page no. 41/58 of RSS was affixed on the samples or case property while their deposition in malkhana. PW21 MHC(M) M. Baxla also categorically admitted the same. Hence, the fact that SHO R.S. Sherawat, counter sealed the case property or samples with the seal of RSS and consequent compliance of section 55 NDPS Act, becomes doubtful.
52. Furthermore as per relevant entry in the malkhana register, there is no recording of deposit of FSL form at the time of deposition of samples. Hence, the filling up of FSL form and subsequent deposition in the malkhana by the IO, is hightly doubtful.
53. Furthermore it is testified by PW5 Dr.Kanak Lata Verma, that Ex.PW5/B i.e. FSL form which was allegedly filled up by police qua recovery from accused Amit and Rahees does not bear any seal for comparison with the seals affixed on samples. The said form has been examined by learned Predecessor as well as by this court. Neither the form bears any seal nor it is revealed that the seal could have fallen by passage of time. The FSL form does not even bear any sign or mark to verify that the seal was ever affixed on the form. Hence, the Scientific Examiner could not have verified the seal available on the samples with State VS Rahees and ors.
FIR no. 07/2012PS - Special Cell Page no. 42/58 any specimen seal, affixed upon the FSL form. Hence, the integrity and authenticity of samples during preservation, transportation and examination could not have been guaranteed.
54. In the case of Radha Kishan Vs State, 2000 Cri LJ 4090, 2000 (56) DRJ 619, Hon'ble High Court of Delhi has held "In the instant case this was not done. Contemporaneously with seizure and sealing of such articles, impression of seal used on sealed articles is put on a form, commonly called, the CFSL form. This is so done because at the time of analysis of sealed packets in laboratory, the analyst concerned is able to tally seal impressions on sealed packets with those appearing on the CFSL form in order to rule out any possibility of tampering of seals on sealed packets after seizure anywhere or in transit till receipt in laboratory. The importance of the CFSL form thus cannot be overemphasized because this document provides a valuable safeguard to an accused to ensure that no tampering has been done during intervening period.
PROSECUTION FAILED TO PROVE LINK OF State VS Rahees and ors.
FIR no. 07/2012PS - Special Cell Page no. 43/58 ACCUSED AMIT AND RAHEES WITH H. NO. A4441, INDER ENCLAVE, PHASE II, KIRARI, NANGLOI:
55. PW2 Smt. Fatima Bibi, was examined by the prosecution to prove the possession of H. No. A444 at Nangloi with both the accused persons. This witness turned hostile and stated that she had not let out the said house to anybody since its purchase. She further stated that about 1.52 years back some police officers came to her and asked whether she had given the house on rent to accused Amit and Rahees but she informed those police officials that the said premises was always kept locked and keys thereof remained with her only and at no point of time she had rented the said premises to Amit Kumar and Rahees. She further stated that those police officials told her that if she did not accept that she had given the said premises on rent it would lateron become difficult for her. She further stated that since the date of its purchase till her examination on 28.10.2013, the said house only had a ground floor and the boundary. As per the prosecution case the raiding team recovered the contraband from the first floor of H. No. A444 at Nangloi. If as per the testimony of PW2 said house was not even having first floor constructed, there State VS Rahees and ors.
FIR no. 07/2012PS - Special Cell Page no. 44/58 could not have been any recovery from the said house. There is no photographs or the videography of said house at Nangloi, or of the proceedings of recovery.
56. In the case of Ram Prakash Vs State (supra), Hon'ble High Court of Delhi emphasized the need of photography/videography or scientific investigation as follows :
22. The site plan presented to the Court by the prosecution was most rudimentary. The place of apprehension was supposed to be the parking lot of the Old Delhi Railway Station in the afternoon at 3.30 pm and yet, there are no photographs, and importantly no scaled plan which would show the relative positions of the Appellant, the bags, the raiding party and where the paperwork is supposed to have taken place with some precision. What has been presented to the Court is an imprecise kind of site plan which even does not remotely resemble the railway parking lot of the Old Delhi Railway Station.
Learned APP offered a weak explanation states that the raiding party is not given any specific training in preparing site plans and make best of the available State VS Rahees and ors.
FIR no. 07/2012PS - Special Cell Page no. 45/58 resources. The Court can only observe that with so many technological advances where satellite imagery to the smallest degree of precision of any location in the world is available, the Delhi police can no longer be excused for not improving its methods of gathering and presenting evidence. Considering that the raid was going to take place in a busy place like the Old Delhi Railway Station parking lot, and in broad daylight, it should have bee possible for the police to arrange for a videograph of the place or perhaps of the raid itself, if not photographs.
23. Also clearly there are CCTV cameras all over the place outside the Old Delhi Railway Station including its parking lot. There was no effort made to collect the CCTV footage of the relevant time.
Not only would it have showed how the Appellant reached the spot with the three bags but also it could have been placed on record to show the raid placed on record to shown the raid as it took place.
57. In the facts and circumstances, the entire recovery from H. No. A4441, Inder Enclave, PhaseII, Kirari, Nangloi, falls flat.
State VS Rahees and ors.
FIR no. 07/2012PS - Special Cell Page no. 46/58 ARREST OF ACCUSED PERSONS IN THE MANNER AS SUGGESTED BY THE PROSECUTION IS DOUBTFUL:
58. Learned counsel for accused persons has pointed out that on the notice u/s 50 NDPS Act, allegedly served upon accused Rahees, the date is mentioned as 07.03.2011, though as per prosecution recovery from accused Rahees was made on 07.03.2012 but the notice u/s 50 NDPS Act bear a date of one year prior to the alleged date of incident and there is no explanation by the prosecution qua mentioning of this date. Apart from this the information qua arrest of accused Amit, Rahees and Rafiq was given to one Mr. Mukesh of H. No. A4441, Inder Enclave, Phase II, Kirari, Nangloi. There is no mention in the arrest memo or otherwise as to who is this Mukesh and what is his relation with either of the accused. It is pertinent to mention here that all accused persons were not arrested from the same place. It is alleged that accused Amit and Rahees were arrested from A4441, Inder Enclave, Kirari, Nangloi, whereas accused Rafiq was arrested from beneath Nangloi Metro Station, as per testimony of PW2 Smt. Fatima Bibi, House. No. A4441, Inder Enclave, Kirari, State VS Rahees and ors.
FIR no. 07/2012PS - Special Cell Page no. 47/58 Nangloi was belonging to her. There is nothing to suggest that any Mukesh was having any connection with the said house. Hence there is a doubt whether the procedure required to be complied during arrest was followed. Hence, the arrest of accused persons in the manner as suggested by the prosecution is also doubtful.
RECOVERY FROM ACCUSED RAFIQ: CONDUCT OF PW25 IO SI PARVEEN KUMAR, DOUBTFUL:
59. As already discussed while dealing with the recovery from accused Amit and Rahees, PW25 second IO of this case and seizing officer with regard to recovery allegedly effected from accused Rafiq at Metro Station Nangloi, was also the IO in FIR no. 47/11. As already discussed above, he did not make any effort to join accused Md. Hussain @ Lalu @ Langra, in the investigation of FIR no. 47/11 till October 2013, though he was arrested in the present case on 18.04.2012, within the knowledge of the IO. This fact raises serious doubt upon the fairness of investigation.
ARREST AND RECOVERY FROM ACCUSED RAFIQ State VS Rahees and ors.
FIR no. 07/2012PS - Special Cell Page no. 48/58 IN THE MANNER AS ALLEGED IS BELIED BY THE PROSECUTION DOCUMENT EX.PW12/C:
60. As per prosecution case accused Rafiq was arrested on 07.03.2012 at 11.00 pm from beneath Nangloi Metro Station. Thereafter he made disclosure statement. Pursuant to his disclosure statement, recovery of contraband was effected from H. No. 141A, Khasra No. 314, Meenakshi Enclave, Loni belonging to Smt. Shabana, mother in law of accused Rafiq on 08.03.2011.
61. Till the visit of IO to H. No. 141A, Khasra no. 314, Meenakshi Enclave, Loni on 08.03.2012, Smt. Shabana was never in picture. She first time met with the IO or any police official, at the time of their visit to H. No. 141A, Khasra no. 314, Meenakshi Enclave, Loni. She was not at all present at the spot of recovery from accused Rafiq on 07.03.2012 but Ex.PW12/C i.e. Arrest Memo of Rafiq dated 07.03.2012 bears the right thumb impression (RTI) of said Ms. Shabana. Thumb impression of Ms. Shabana at the document which was not prepared in her presence makes arrest of accused Rafiq doubtful. Even this cannot be said that RTI of Ms. Shabana was taken on the document in acknowledgment of the information of arrest of accused State VS Rahees and ors.
FIR no. 07/2012PS - Special Cell Page no. 49/58 Rafiq, because as per arrest memo one Mr. Mukesh of A 4441, Inder Enclave, Kirari, Nangloi, was already informed about the arrest of accused on 07.03.2012 itself. The fact of existence of RTI of Shabana on arrest memo coupled with her deposition in court as PW3, in which she stated that police officials forcibly took her thumb impression on some blank documents, makes the arrest of accused Rafiq doubtful.
SHODDY INVESTIGATION AND NON COLLECTION/WITHHOLDING OF BEST POSSIBLE EVIDENCE :
62. It is admitted by the police officials examined as prosecution witnesses that CCTV cameras are installed at Nangloi Metro Station, from where accused Rafiq was allegedly arrested but no effort was made by the IO for collection of the footage of CCTV cameras.
63. In the case of Tomaso Bruno and Another Vs State of Uttar Pradesh, (2015) 7 SCC 178, Hon'ble Apex Court held that CCTV footage and call records are best electronic reliable evidence which could have clinched the issue. It was further held "The High Court held that even though the State VS Rahees and ors.
FIR no. 07/2012PS - Special Cell Page no. 50/58 appellants alleged that the footage of CCTV is being concealed by the prosecution for the reasons best known to the prosecution, the accused did not invoke Section 233 Cr.PC and they did not make any application for production of CCTV camera footage. The High Court further observed that the accused were not able to discredit the testimony of PW1, PW12 and PW13 qua there being no relevant material in the CCTV camera footage. Notwithstanding the fact that the burden lies upon the accused to establish the defence plea of alibi in the facts and circumstances of the case, in our view, the prosecution in possession of the best evidence, CCTV footage ought to have produced the same. In our considered view, it is a fit case to draw an adverse inference against the prosecution under Section 114 Illustration (g) of the Evidence Act that the prosecution withheld the same as it would be unfavourable to them had it been produced."
SECOND SEIZURE FROM H. NO. 141A, KHASRA NO. 314, MEENAKSHI ENCLAVE, LONI AT THE INSTANCE OF ACCUSED RAFIQ DOUBTFUL :
64. As per prosecution accused Rafiq made disclosure statement after his arrest on 07.03.2012, and as per his State VS Rahees and ors.
FIR no. 07/2012PS - Special Cell Page no. 51/58 disclosures statement, premises bearing H. No. 141A, Khasra no. 314, Meenakshi Enclave, Loni, was searched on 08.03.2012, where PW3 Smt. Shabana was found.
65. Learned Sh. S.K. Santoshi, has rightly submitted that the alleged disclosure statement of accused Rafiq would fall within the category of information about narcotics drugs, received by the police officers and the procedure u/s 42 NDPS Act is required to be followed. In the case in hand it is no where mentioned that the said disclosure statement was put up before the senior officer for compliance of section 42 NDPS Act. Reliance in this regard is made in the case of State of Punjab Vs Balbir Singh (supra).
66. Moreover there is no key of premises of H. No. 141A, Khasra no. 314, Meenakshi Enclave, Loni, recovered from the personal search or possession of accused Rafiq. Premises were not in exclusive possession of accused Rafiq. There is nothing on record to suggest that no person except accused Rafiq could have entered or kept the articles or goods in the said premises. As per prosecution case the said premises were found open and in custody of PW3 Smt. Shabana. The said witness Shabana in her testimony stated that Rafiq had never resided in the said premises and he State VS Rahees and ors.
FIR no. 07/2012PS - Special Cell Page no. 52/58 used to live in his native village in West Bengal. She further stated that police came to her house and inquired about the ownership of the house, police then asked for the documents of the house and the ownership documents were handed over to the police by her husband. She denied all the suggestions of learned Addl. PP for State that on 08.03.2012, Rafiq came along with police and the search of the room on top floor was taken. She denied to have given any statement as mentioned in Ex.PW3/A (statement of witness recorded u/s 161 Cr.PC). Apart from this at the cost of repetition it is stated that there are no serious efforts by the IO PW25 to join any of the public witness with the said seizure from H. No. 141A, Khasra no. 314, Meenakshi Enclave, Loni. The seizure memo is not even witnessed or countersigned by PW3, who was allegedly present in the said house. Hence, second seizure at the instance of accused Rafiq from H. No. 141A, Khasra no. 314, Meenakshi Enclave, Loni is also doubtful.
CASE OF ACCUSED MD. HUSSAIN @ LALU @ LANGRA :
67. It is admitted case of the prosecution in the charge State VS Rahees and ors.
FIR no. 07/2012PS - Special Cell Page no. 53/58 sheet as well as in the testimony of witnesses that no recovery was effected from or at the instance of accused Md. Hussain @ Lalu @ Langra. He has been charged with the commission of criminal conspiracy along with his coaccused persons for offence punishable u/s 21 (c) NDPS Act r/w section 29 of NDPS Act.
68. There is no evidence against this accused except the disclosure statement of coaccused persons. Once the prosecution has failed to prove the recovery of drugs from accused Amit, Rahees and Rafiq, the charge of conspiracy against accused Md. Hussain @ Lalu @ Langra cannot sustain.
69. Apart from this as already discussed accused Md.
Hussain @ Lalu @ Langra, has been shown as kingpin and source of supply of narcotics drugs to other accused persons in FIR no. 47/11 but no interrogation/investigation qua his relation was made in the said FIR despite his arrest in present FIR.
70. Moreover there is even no telephonic connection of this accused with other accused persons.
71. In addition to this there is serious doubt about his apprehension or arrest made by police officials in the State VS Rahees and ors.
FIR no. 07/2012PS - Special Cell Page no. 54/58 manner as suggested. As per testimony of prosecution witnesses he was arrested from Kanpur. Evidence in this respect is contradictory and improbable. There was no photograph of the accused with the police officials. As per crossexamination of PW25 SI Parveen, photograph of this accused was taken in police custody i.e. after arrest. No sketch of this accused was prepared. PW13 in his cross examination admitted that no source to identify accused Md. Hussain @ Lalu @ Langra, was taken to Kanpur. Members of team who visited to arrest accused Md. Hussain @ Lalu @ Langra, did not know him. PW13 SI Jitender Tiwari, who was the IO for apprehension of accused Md. Hussain @ Lalu @ Langra, has even admitted that complete physical description of accused was not disclosed to him. However, it is pertinent to mention here that the said description of accused was not even mentioned in the disclosure statement of other accused persons. Police team was not even having any address of this accused. The location chart of any mobile phone used by this accused to zero down his location is also not produced on record. Hence, it is highly improbable that the police zeroed down upon accused Md. Hussain @ Lalu @ Langra, in the big city State VS Rahees and ors.
FIR no. 07/2012PS - Special Cell Page no. 55/58 of Kanpur on the basis of scanty information allegedly available with them.
72. As per PW7, police team had gone to arrest accused Md. Hussain @ Lalu @ Langra, through Rajdhani train. Initially this witness stated that the departure time of the said train was 9.00 am. Then he made improvement and stated that the time of departure was in afternoon. Thereafter, he further made improvement and stated that time of Rajdhani was somewhere around 4.00 pm. It is rightly submitted by counsel Sh. S.S. Dass, that there could not have been so much variation of the time of departure of the train. In contrast to the testimony of this witness PW 13 SI Jitender Tiwari, with regard to apprehension of accused Md. Hussain @ Lalu @ Langra stated that he did not remember the name of the train and that train departed in early morning on 16.04.2012. He further stated that the police team returned back to Delhi by train but he did not remember the name of train. It is rightly submitted by counsel Sh. S.S. Dass that had it been Rajdhani train, it could not have been difficult for the members of apprehension team to remember the name of the said train. In contrary to the stand of PW13 that the police team State VS Rahees and ors.
FIR no. 07/2012PS - Special Cell Page no. 56/58 returned through train, PW7 in his crossexamination stated that police team returned through taxi. No tickets or bills are filed on record. Hence, the visit of police team to Kanpur and the arrest of accused Md. Hussain @ Lalu @ Langra, as alleged is not proved beyond reasonable doubt and accused Md. Hussain @ Lalu @ Langra is entitled for benefit of doubt.
73. In view of the aforesaid discussion, this court is of the opinion that the prosecution has failed to prove its case beyond reasonable doubt against either of the accused. All accused persons are entitled for benefit of doubt and hence acquittal. Held accordingly.
74. Accused persons are thus acquitted of the charges levelled against them. They be released forthwith, if their custody is not required in any other case.
75. All accused persons have already furnished their respective bonds u/s 437A Cr.PC which are accepted and shall remain effective for a period of 6 months.
76. The articles seized vide seizure memos and personal search memos of respective accused persons be released to them against proper acknowledgment.
77. Case property, if any, be confiscated to State and the State VS Rahees and ors.
FIR no. 07/2012PS - Special Cell Page no. 57/58 same may be disposed off as per rules and procedures after the lapse of period of filing of appeal.
78. File be consigned to record room.
Announced in the open court on the 14th day of November, 2017 ( Ajay Pandey ) Addl. Sessions Judge 04, New Delhi District, Patiala House Courts, New Delhi State VS Rahees and ors.
FIR no. 07/2012PS - Special Cell Page no. 58/58
State Vs. Rahees and Ors.
SC no. 8447/16
FIR no. 07/12
PS: Spl. Cell
14.11.2017
Present: Sh. S. K. Kain, learned Addl. PP for the State.
All accused produced from JC.
Sh. R.K. Giri, learned Advocate for accused Amit and Rahees.
Vide my separate judgment of even date, accused persons are acquitted of the charges levelled against them. They be released forthwith, if their custody is not required in any other case. All accused persons have already furnished their respective bonds u/s 437A Cr.PC which are accepted and shall remain effective for a period of 6 months. The articles seized vide seizure memos and personal search memos of respective accused persons be released to them against proper acknowledgment.
Case property, if any, be confiscated to State and the same may be disposed off as per rules and procedures after the lapse of period of filing of appeal.
File be consigned to record room.
( Ajay Pandey ) State VS Rahees and ors.
FIR no. 07/2012PS - Special Cell Page no. 59/58
Addl. Sessions Judge 04,
New Delhi District, Patiala House
Courts, New Delhi/14.11.2017
State VS Rahees and ors.
FIR no. 07/2012
PS - Special Cell Page no. 60/58