Delhi District Court
State vs Khurshid Alam Ors on 8 December, 2023
IN THE COURT OF SUDHIR KUMAR SIROHI:ASJ
(SPECIAL JUDGE) (NDPS ACT): NEW DELHI DISTRICT:
PATIALA HOUSE COURTS:NEW DELHI
State Vs : KHURSHID
ALAM AND ANR.
FIR Number : 06/14
Police Station : SPECIAL CELL
Session Case No. : 9002/16
Date of Institution : 07.07.2014
Date of Judgment reserved on : 02.12.2023
Date of Judgment : 08.12.2023
Brief details of the case
A) CNR No. : DLND-01-000846-2014
B) Offence complained : U/s 21/29 NDPS Act
C) Date of Offence : 19.01.2014
D) Name of the complainant: SI Pramod Chauhan
E) Name of the accused : (1) Khurshid Alam
s/o Sh. Aziz-ur-Rehman
r/o H. No. VPO Chanahaar,
Gthali Bagh, Distt.
Ganderbal, J&K
(2) B. Ganesh
s/o Sh. Bojan
r/o VPO Padalur, Distt.
Petambalur, Tamilnadu
(3) M. Senthil
s/o Sh. Mani
r/o H. No. 2/283, Main
Road East Portion, VPO
Padalur, Distt. Petambalur,
Tamilnadu
(4) P. Gopinath (PO)
s/o Sh. Govindraj
Pakkirisamy
Digitally signed
SUDHIR by SUDHIR
KUMAR SIROHI
SC No. 9002/16 KUMAR Date:
FIR No. 06/2014 SIROHI 2023.12.08
16:29:45 +0530
PS Special Cell
State Vs Khurshid Alam and Ors.. Page No. 1 of 48
(5) Sahajahan (PO)
s/o Sh. Shaval Hameed
(6) Fayyaz Ahmed Khan
@ Tanveer @ Shamsher
(PO)
s/o Sh. Abdul Wahud Khan
F) Plea of the accused : Pleaded not guilty
G) Final order : Acquittal
H) Date of Judgment : 08.12.2023
JUDGMENT
Brief facts mentioned in the charge-sheet
1. This judgment is passed qua accused Khurshid Alam, B. Ganesh and M. Senthil.
2. Brief facts of the case are that on 19.01.2014 on the basis of secret information regarding accused B. Ganesh, M. Senthil and one Kashmiri person raiding party was formed on instruction of ACP Mr. Manish Chandra consisting of Inps. Umesh Bharthwal, Insp. Kailash, Insp. Neeraj, SI Pramod, ASI Mukesh, SI Vikram, Ct. Jagannath, HC Gurmeet and Ct. Virender and a trap was laid thereafter at about 06.15 pm, accused B. Ganesh and M. Senthil met one person who handed over two bags to accused B. Ganesh and M. Senthil (one bag each) immediately they were intercepted by the raiding party. Section 50 NDPS Act notice was served on all the accused persons and they refused for search in presence of Gazetted officer or Magistrate. From the bag of accused B. Ganesh 3 polythene packets containing 3 kg of heroin (1 kg each) was SUDHIR Digitally by SUDHIR signed KUMAR KUMAR SIROHI SC No. 9002/16 Date: 2023.12.08 SIROHI 16:29:51 +0530 FIR No. 06/2014 PS Special Cell State Vs Khurshid Alam and Ors.. Page No. 2 of 48 recovered and two samples of 10 grams each mark A1, A2, B1, B2, C1, C2 were taken from three polythene packets. From the bag of accused M. Senthil 3 polythene packets containing 3 kg of heroin (1 kg each) was recovered and two samples of 10 grams each mark D1, D2, E1, E2, F1, F2 were drawn and the remaining contraband was kept in a separate plastic jar marked, A,B,C,D,E & F. Thereafter from the bag of Khurshid four transparent polythene containing 4 kg of heroin was recovered (1 kg each) and two samples of 10 gram mark G1, G2, H1, H2, I1, I2, J1, J2 were drawn and the remaining contraband was kept in separate plastic jar mark G, H, I & J. After that the FIR was lodged, the formalities were completed, samples were sent to FSL, FSL report came positive for heroin and after completion of investigation, chargesheet was filed.
3. On appearance of the accused persons copies of documents were supplied to them. Charges for committing offence punishable under Sections 21(c) NDPS Act against accused Khurshid Alam and 29 and 21 (c) r/w Section 29 of NDPS were framed against accused Khursid Alam, B. Ganesh and M. Senthil by Ld. Predecessor vide order dated 16.04.2015 to which accused persons pleaded not guilty and claimed trial.
4. To prove its case the prosecution has examined 26 witnesses. Prosecution witnesses correctly identified the accused persons in the court. Prosecution evidence was closed vide order dated 16.05.2023. Prosecution witnesses correctly identified accused persons and case property in court.
Digitally signed SUDHIR by SUDHIR KUMAR SIROHI SC No. 9002/16 KUMAR Date: FIR No. 06/2014 PS Special Cell SIROHI 2023.12.08 16:29:57 +0530 State Vs Khurshid Alam and Ors.. Page No. 3 of 48 Prosecution Evidence:
For brevity only evidence of important witness reiterated.
5. PW1 Insp. Umesh Barthwal deposed that on 19/1/2014 he was posted in Special Cell, NDR, Lodhi Colony as Inspector. On that day at around 4:45 p.m. SI Pramod Chauhan produced an informer before him in his office who informed that two persons namely Ganesh and Senthil are in Delhi for the last few days to collect a consignment of drugs from a Kashmiri. PW1 further revealed that on that day Ganesh and Senthil would come on the road going towards Damdama gurudwara, Nizamuddin at around 6:30 p.m. to collect consignment of drugs from a Kashmiri and if raid is conducted huge consignment of drugs can be recovered. PW1 informed ACP/NDR, Special Cell Mr. Manishi Chandra telephonically about the information who directed to conduct a raid immediately. SI Pramod produced before PW1 the information in writing in compliance of Section 42 NDPS Act. The copy of the same on record (mark A). PW1 forwarded the same to ACP/NDR. At 5:30 p.m. the team consisting of PW1, Insp. Kailash, Insp. Neeraj, SI Pramod, ASI Mukesh, SI Vikram, Ct. Jagannath, HC Gurmeet and Ct. Virender equipped with arms and ammunition, IO kit left the office of Special Cell in official gypsy bearing no. DL1CM 0881, a Pvt. swift Dzire of SI Vikram and reached Nizamuddin round about at about 6:00 p.m. The team laid a trap, at about 6:15 p.m. two persons came from Nizamuddin round about side on the road going towards Damdama Gurudwara and started taking stroll. The informer identified them as Ganesh and SUDHIR Digitally by SUDHIR signed SC No. 9002/16 KUMAR KUMAR SIROHI Date: 2023.12.08 FIR No. 06/2014 SIROHI 16:30:06 +0530 PS Special Cell State Vs Khurshid Alam and Ors.. Page No. 4 of 48 Senthil. After that informer left the spot. Ganesh was putting on black pant and grey sweater whereas Senthil was putting on grey pant and black leather jacket. After about 15 minutes, one person came from Nizamuddin round about side wearing blue jeans and green sweater and the black colour shoulder bag with two cloth bags one each in both hands. He shook hand with Ganesh and Senthil, thereafter, immediately handed over the cloth bag which was in his left hand to Ganesh and the cloth bag which was in his right hand to Senthil. As he tried to open his black colour shoulder bag the team apprehended and overpowered all the three persons. SI Pramod and HC Gurmeet apprehended Ganesh along with his bag. SI Vikram apprehended accused Senthil along with bag in his hand. ASI Mukesh apprehended accused Khurshid along with his shoulder bag. SI Pramod Chauhan introduced himself and the team members to all the accused persons and informed them about the information. SI Pramod prepared notices u/s 50 NDPS Act in English language in duplicate. The carbon copy of the notices u/s 50 NDPS Act were served upon Ganesh, Senthil and Khurshid. SI Pramod informed about contents of notices in Hindi as well as in English to each accused separately. He also informed that it is their legal right if they require their search could be taken before any Gazetted Officer or Magistrate if they desired so and for this the presence of either Gazetted Officer or Magistrate could be made available there itself. They were also asked to take the search of police party as well as vehicles before their search. They were also informed about the meaning of Gazetted officer or Magistrate to each accused. They refused to get their search conducted before SUDHIR Digitally by SUDHIR signed SC No. 9002/16 KUMAR KUMAR SIROHI FIR No. 06/2014 Date: 2023.12.08 PS Special Cell SIROHI 16:30:23 +0530 State Vs Khurshid Alam and Ors.. Page No. 5 of 48 Magistrate or Gazetted Officer and also refused to search the police party and the vehicles. They stated that they were carrying heroin. They gave the refusal on the original notice u/s 50 NDPS Act itself. After this SI Pramod requested 3-4 passersby to join the proceedings apprising them the facts but none of them joined and left the spot without disclosing their names and addresses giving genuine excuses. After this SI Pramod took the search of accused Ganesh and the red yellow cloth bag in his right hand bearing the marking of Dawat Basmati Rice. The cloth bag was opened and it was found to contain a cardboard box bearing the markings of 'T.H.K. fresh crop from Kashmir'. The cardboard box was checked and it was found to contain three separate polythene packets. On opening the first polythene packet it was found to contain a cloth parcel bearing several stamps of 555 2007 Super Shinwari along with something written on Urdu and 11860 on both sides of the cloth parcel. The cloth parcel was opened which was found having one transparent polythene containing a brown paper packet. The packet was opened and was found to contain a cream colour powder substance in it. The same was checked with the help of field testing kit and confirmed as heroin. It was weighed and found to be 1 kg. Two samples of 10 grams each were taken out from the recovered substance and kept in separate transparent plastic jars and wrapped with doctor tape. Remaining 980 grams was kept in the same polythene and put in a separate plastic container along with its packing and wrapped with a doctor tape. The container was given mark A and the samples were given mark A1 and A2. On opening the second polythene packet it was found to contain SC No. 9002/16 SUDHIR Digitally by SUDHIR signed FIR No. 06/2014 KUMAR KUMAR SIROHI Date: 2023.12.08 PS Special Cell SIROHI 16:30:29 +0530 State Vs Khurshid Alam and Ors.. Page No. 6 of 48 a cloth parcel bearing several stamps of 555 2007 Super Shinwari along with something written on Urdu and 11860 on both sides of the cloth parcel. The cloth parcel was opened which was found having one transparent polythene containing a brown paper packet. The packet was opened and was found to contain a cream colour powder substance in it. The same was checked with the help of field testing kit and confirmed as heroin. It was weighed and found to be 1 kg. Two samples of 10 grams each were taken out from the recovered substance and kept in separate transparent plastic jars and wrapped with doctor tape. Remaining 980 grams was kept in the same polythene and put in a separate plastic container along with its packing and wrapped with a doctor tape. The container was given mark B and the samples were given mark B1 and B2. On opening the third polythene packet it was found to contain a cloth parcel bearing several stamps of 555 2007 Super Shinwari along with something written on Urdu and 11860 on both sides of the cloth parcel. The cloth parcel was opened which was found having one transparent polythene containing a brown paper packet. The packet was opened and was found to contain a cream colour powder substance in it. The same was checked with the help of field testing kit and confirmed as heroin. It was weighed and found to be 1 kg. Two samples of 10 grams each were taken out from the recovered substance and kept in separate transparent plastic jars and wrapped with doctor tape. Remaining 980 grams was kept in the same polythene and put in a separate plastic container along with its packing and wrapped with a doctor tape. The container was given mark C and the samples were given Digitally signed SUDHIR by SUDHIR SC No. 9002/16 KUMAR SIROHI KUMAR Date:
FIR No. 06/2014PS Special Cell SIROHI 2023.12.08 16:30:34 +0530 State Vs Khurshid Alam and Ors.. Page No. 7 of 48 mark C1 and C2. After this SI Pramod conducted the search of Senthil and the green yellow cloth bag in his right hand. The green yellow cloth bag bearing the marking of 'heritage basmati rice'. The cloth bag was opened and it was found to contain a cardboard box bearing the markings of 'T.H.K. fresh crop from Kashmir'. The cardboard box was checked and it found to contain three separate polythene packets. On opening the first polythene packet it was found to contain a cloth parcel bearing several stamps of 555 2007 Super Shinwari along with something written on Urdu and 11860 on both sides of the cloth parcel. The cloth parcel was opened which was found having one transparent polythene containing a brown paper packet. The packet was opened and was found to contain a cream colour powder substance in it. The same was checked with the help of field testing kit and confirmed as heroin. It was weighed and found to be 1 kg. Two samples of 10 grams each were taken out from the recovered substance and kept in separate transparent plastic jars and wrapped with doctor tape. Remaining 980 grams was kept in the same polythene and put in a separate plastic container along with its packing and wrapped with a doctor tape. The container was given mark D and the samples were given mark D1 and D2. On opening the second polythene packet it was found to contain a cloth parcel bearing several stamps of 555 2007 Super Shinwari along with something written on Urdu and 11860 on both sides of the cloth parcel. The cloth parcel was opened which was found having one transparent polythene containing a brown paper packet. The packet was opened and was found to contain a cream colour powder substance in it. The Digitally signed SUDHIR by SUDHIR KUMAR SIROHI SC No. 9002/16 KUMAR Date:
FIR No. 06/2014 SIROHI 2023.12.08
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PS Special Cell
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same was checked with the help of field testing kit and confirmed as heroin. It was weighed and found to be 1 kg. Two samples of 10 grams each were taken out from the recovered substance and kept in separate transparent plastic jars and wrapped with doctor tape. Remaining 980 grams was kept in the same polythene and put in a separate plastic container along with its packing and wrapped with a doctor tape. The container was given mark E and the samples were given mark E1 and E2. On opening the third transparent polythene parcel it was found containing cream colour powder substance in it. The same was checked with the help of field testing kit and confirmed as heroin. It was weighed and found to be 1 kg. Two samples of 10 grams each were taken out from the recovered substance and kept in separate transparent plastic jars and wrapped with doctor tape. Remaining 980 grams was kept in the same polythene and put in a separate plastic container along with its packing and wrapped with a doctor tape. The container was given mark F and the samples were given mark F1 and F2. Thereafter search of Khurshid and his black colour shoulder bag was conducted. The shoulder bag was found containing wearing personal clothes i.e. pant, shirt, sweater, shaving kit. Beneath the same, 4 separate transparent polythenes were recovered. On opening the first polythene parcel it was found containing cloth parcel bearing several stamps marking of 999/8888 along with Urdu words and 2012 with moon and star impression. On opening the cloth parcel it was found having a transparent polythene packet which was opened and cream colour substance was recovered. The same was checked with the help of field testing kit and Digitally signed SUDHIR by SUDHIR SC No. 9002/16 KUMAR KUMAR SIROHI FIR No. 06/2014 SIROHI Date: 2023.12.08 16:30:49 +0530 PS Special Cell State Vs Khurshid Alam and Ors.. Page No. 9 of 48 confirmed as heroin. The same was weighed and found to be 1 kg. Two samples of 10 grams each were taken out from the recovered substance and kept in separate transparent plastic jars and wrapped with doctor tape. Remaining 980 grams was kept in the same polythene and put in a separate plastic container along with its packing and wrapped with a doctor tape. The container was given mark G and the samples were given mark G1 and G2. On opening the second polythene parcel it was found containing cloth parcel bearing several stamps marking of numerical which PW1 did not remember with Lion and apple impression. On opening the cloth parcel it was found having a transparent polythene packet having a brown paper packet which was opened and cream colour substance was recovered. The same was checked with the help of field testing kit and confirmed as heroin. The same was weighed and found to be 1 kg. Two samples of 10 grams each were taken out from the recovered substance and kept in separate transparent plastic jars and wrapped with doctor tape. Remaining 980 grams was kept in the same polythene and put in a separate plastic container along with its packing and wrapped with a doctor tape. The container was given mark H and the samples were given mark H1 and H2. On opening the third transparent polythene parcel it was found containing cream colour powder substance in it. The same was checked with the help of field testing kit and confirmed as heroin. It was weighed and found to be 1 kg. Two samples of 10 grams each were taken out from the recovered substance and kept in separate transparent plastic jars and wrapped with doctor tape. Remaining 980 grams was kept in the same polythene and SC No. 9002/16 SUDHIR Digitally by SUDHIR signed FIR No. 06/2014 KUMAR KUMAR SIROHI Date: 2023.12.08 PS Special Cell SIROHI 16:31:17 +0530 State Vs Khurshid Alam and Ors.. Page No. 10 of 48 put in a separate plastic container along with its packing and wrapped with a doctor tape. The container was given mark I and the samples were given mark I-1 and I-2. On opening the fourth transparent polythene parcel it was found containing cream colour powder substance in it. The same was checked with the help of field testing kit and confirmed as heroin. It was weighed and found to be 1 kg. Two samples of 10 grams each were taken out from the recovered substance and kept in separate transparent plastic jars and wrapped with doctor tape. Remaining 980 grams was kept in the same polythene and put in a separate plastic container along with its packing and wrapped with a doctor tape. The container was given mark J and the samples were given mark J1 and J2. All the 10 plastic containers mark A, B, C, D, E, F, G, H, I and J and 20 sample containers mark A1, A2, B1, B2, C1,C2, D1, D2, E1, E2, F1, F2, G1, G2, H1, H2, I-
1, I-2 and J1, J2 were sealed with the seal of AK. CFSL form was also filled and sealed with the seal of AK. The sealed exhibits 10 containers and 20 sample containers were taken into possession vide seizure memo ExPW1/A. Seal after use was handed over to SI Vikram Dahiya. SI Pramod prepared rukka and sent the same through HC Bacchu Singh for registration of case to PS Special Cell. He also handed over HC Bacchu Singh the 10 sealed containers and 20 sealed sample pullandas along with copy of seizure memo and form FSL to be produced before SHO, Special Cell. In the meanwhile SI Pramod had informed SI Shivraj Rawat to arrive at the spot to conduct further investigation. PW1 had also informed ACP NDR about the recovery. At around 11:00 p.m. SI Shivraj Rawat along with ASI Digitally signed SUDHIR by SUDHIR SC No. 9002/16 KUMAR SIROHI FIR No. 06/2014 KUMAR Date:
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Anil arrived at the spot. SI Pramod handed him the copy of rukka, seizure memo, sealed parcels and three accused persons. SI Shivraj made cursory interrogation with each accused persons separately. After this SI Shivraj Rawat prepared site plan at the instance of SI Pramod. During investigation at the spot SI Shivraj had arrested all the three accused persons and prepared their arrest memo and personal search memo. After that they arrived at the office of Special Cell. PW1 has correctly identified the case property. During the evidence of PW1, MHCM produced one plastic container bearing mark A, which was tied with doctor tape over which FIR number and other particulars of this case are mentioned. It was sealed with the seal of AK and DKS. The container was opened and on opening it was found containing one white colour cloth pouch along with packing material having some stamps with the impression of 555 2007 Super Shinwari along with something written on Urdu and 11860 with blue ink on both sides of the cloth parcel. The said parcel is also having certain writings in the form of signatures but PW1 stated that these writings/signatures are not of any of the members of the raiding team and these appear to be in the same ink in which the other stamps have been put on this parcel. This white colour pouch containing cream colour substance. PW1 has stated that the said powder is one which was recovered from the bag of accused Ganesh and was given mark A. The container along with white colour cloth containing the contraband collectively Ex P1. During evidence of PW1, one plastic jar mark A1 produced by the MHCM containing the particulars of FIR and particulars of CFSL, sealed with the seal SUDHIR Digitally by SUDHIR signed SC No. 9002/16 KUMAR KUMAR SIROHI FIR No. 06/2014 Date: 2023.12.08 PS Special Cell SIROHI 16:31:30 +0530 State Vs Khurshid Alam and Ors.. Page No. 12 of 48 of DB. During evidence of PW1, MHCM produced one small plastic container bearing mark A2, tied with doctor tape over which FIR number and other particulars of this case mentioned, sealed with the seal of AK and DKS. The container was opened and on opening, it was found containing cream colour powder to which PW1 identified as the sample drawn by IO. The container along with the contraband collectively Ex P2. During evidence of PW1, MHCM produced one plastic container bearing mark B, tied with doctor tape over which FIR number and other particulars of this case mentioned, sealed with the seal of AK and DKS. The container was opened and on opening it was found containing one white colour cloth pouch along with packing material having several stamps of 555 2007 Super Shinwari along with something written in Urdu and 11860 on both sides of the cloth parcel. The said parcel was also having certain writings in the form of signatures but PW1 stated that these writings/signatures were not of any of the members of the raiding team and these appear to be in the same ink in which the other stamps have been put on this parcel. This white colour pouch was containing cream colour substance. PW1 stated that the said powder is one which was recovered from the bag of accused Ganesh and was given mark B. The container along with white colour cloth containing the contraband collectively Ex P3. During evidence of PW1, one plastic jar bearing mark B1 produced by the MHCM containing the particulars of FIR and also containing the particulars of CFSL, sealed with the seal of DB. During evidence of PW1, MHCM produced one small plastic container bearing mark B2, which is tied with doctor tape Digitally signed SUDHIR by SUDHIR KUMAR SIROHI SC No. 9002/16 KUMAR Date:
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over which FIR number and other particulars of this case mentioned, which is sealed with the seal of AK and DKS. The container was opened and on opening it was found containing cream colour powder which PW1 identified as the sample drawn by IO. The container along with the contraband collectively Ex P4. During evidence of PW1, MHCM produced one plastic container bearing mark C tied with doctor tape over which FIR number and other particulars of this case mentioned, which is sealed with the seal of AK and DKS. The container was opened, on opening it was found containing one white colour cloth pouch along with packing material having several stamps of 555 2007 Super Shinwari along with something written on Urdu and 11860 on both sides of the cloth parcel. The said parcel was also having certain writings in the form of signatures but PW1 stated that these writings/signatures are not of any of the members of the raiding team and these appear to be in the same ink in which the other stamps have been put on this parcel. This white colour pouch was containing cream colour substance. PW1 has corretly identified the said powder which was recovered from the bag of accused Ganesh and was given mark C. The container along with white colour cloth containing the contraband collectively Ex P5. During evidence of PW1, one plastic jar bearing mark C1 produced by the MHCM containing the particulars of FIR and also containing the particulars of CFSL, sealed with the seal of DB. During evidence of PW1, MHCM produced one small plastic container bearing mark C2, tied with doctor tape over which FIR number and other particulars of this case mentioned, sealed with the seal of AK Digitally signed SUDHIR by SUDHIR KUMAR SIROHI SC No. 9002/16 KUMAR Date:
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and DKS. The container was opened, on opening it was found containing cream colour powder and PW1 correctly identified the same as sample drawn by IO. The container along with the contraband collectively Ex P6. During evidence of PW1, MHCM produced one plastic container bearing mark D, tied with doctor tape over which FIR number and other particulars of this case mentioned, sealed with the seal of AK and DKS. The container was opened, on opening, it was found containing one white colour cloth pouch along with packing material having several stamps of 555 2007 Super Shinwari along with something written on Urdu and 11860 on both sides of the cloth parcel. The said parcel was also having certain writings in the form of signatures but PW1 stated that these writings/signatures were not of any of the members of the raiding team and these appear to be in the same ink in which the other stamps have been put on this parcel. This white colour pouch was containing cream colour substance. PW1 correctly identified the said powder which was recovered from the bag of accused Senthil and was given mark D. The container along with white colour cloth containing the contraband collectively Ex P7. During evidence of PW1, one plastic jar bearing mark D1 produced by the MHCM containing the particulars of FIR and also containing the particulars of CFSL, sealed with the seal of DB. During the evidence of PW1, MHCM produced one small plastic container bearing mark D2, tied with doctor tape over which FIR number and other particulars of this case mentioned, sealed with the seal of AK and DKS. The container was opened, on opening it was found containing cream colour powder to which PW1 identified SUDHIR Digitally by SUDHIR signed SC No. 9002/16 KUMAR KUMAR SIROHI FIR No. 06/2014 Date: 2023.12.08 PS Special Cell SIROHI 16:31:59 +0530 State Vs Khurshid Alam and Ors.. Page No. 15 of 48 as the sample drawn by IO. The container along with the contraband collectively Ex P8. During evidence of PW1, MHCM produced one plastic container bearing mark E, tied with doctor tape over which FIR number and other particulars of this case mentioned, sealed with the seal of AK and DKS. The container was opened, on opening it was found containing one white colour cloth pouch along with packing material having several stamps of 555 2007 Super Shinwari along with something written on Urdu and 11860 on both sides of the cloth parcel. The said parcel was also having certain writings in the form of signatures but PW1 stated that these writings /signatures were not of any of the members of the raiding team and these appear to be in the same ink in which the other stamps have been put on this parcel. This white colour pouch was containing cream colour substance. PW1 correctly identified that the said powder is one which was recovered from the bag of accused Senthil and was given mark E. The container along with white colour cloth containing the contraband collectively Ex P9. During evidence of PW1, one plastic jar bearing mark E1 produced by the MHCM containing the particulars of FIR and also containing the particulars of CFSL, sealed with the seal of DB. During evidence of PW1, MHCM has produced one small plastic container bearing mark E2, tied with doctor tape over which FIR number and other particulars of this case mentioned, sealed with the seal of AK and DKS. The container was opened, on opening it was found containing cream colour powder to which PW1 has correctly identified as the sample drawn by IO. The container along with the contraband collectively Ex P10.
Digitally signed
SUDHIR by SUDHIR
KUMAR SIROHI
SC No. 9002/16 KUMAR Date:
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During evidence of PW1, MHCM produced one plastic container bearing mark F, tied with doctor tape over which FIR number and other particulars of this case mentioned, sealed with the seal of AK and DKS. The container was opened, on opening it was found containing one transparent polythene containing cream colour substance. PW1 correctly identified the same as said powder is one which was recovered from the bag of accused Senthil and was given mark F. The container along with transparent polythene having contraband collectively Ex P11. During evidence of PW1, one plastic jar bearing mark F1 produced by the MHCM containing the particulars of FIR and also containing the particulars of CFSL, sealed with the seal of DB. During evidence of PW1, MHCM produced one small plastic container bearing mark F2, tied with doctor tape over which FIR number and other particulars of this case mentioned, sealed with the seal of AK and DKS. The container was opened, on opening it was found containing cream colour powder which PW1 correctly identified as the sample drawn by IO. The container along with the contraband collectively Ex P12. During evidence of PW1, MHCM produced one plastic container bearing mark G, tied with doctor tape over which FIR number and other particulars of this case mentioned, sealed with the seal of AK and DKS. The container was opened, on opening it was found containing one white colour cloth pouch along with packing material having several stamps marking of 999/8888 along with Urdu words and 2012 with moon and star impression. This white colour pouch containing cream colour substance. PW1 correctly identified the said powder which was recovered Digitally signed SUDHIR by SUDHIR KUMAR SIROHI SC No. 9002/16 KUMAR Date:
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from the bag of accused Khurshid and was given mark G. The container along with white colour cloth containing the contraband collectively Ex P13. During evidence of PW1, one plastic jar bearing mark G1 produced by the MHCM, containing the particulars of FIR and also containing the particulars of CFSL, sealed with the seal of DB. During evidence of PW1, MHCM produced one small plastic container bearing mark G2, tied with doctor tape over which FIR number and other particulars of this case mentioned, sealed with the seal of AK and DKS. The container was opened, on opening it was found containing cream colour powder to which PW1 correctly identified the same as the sample drawn by IO. The container along with the contraband collectively Ex P14. During evidence of PW1, MHCM produced one plastic container bearing mark H, tied with doctor tape over which FIR number and other particulars of this case mentioned, sealed with the seal of AK and DKS. The container was opened, on opening it was found containing one transparent polythene packing white colour cloth pouch along with packing material several stamps marking of numerical 9922 2013 with Lion and apple impressions. This white colour pouch containing cream colour substance. PW1 has stated that the said powder is one which was recovered from the bag of accused Khurshid and was given mark H. The container along with white colour cloth containing the contraband collectively Ex P15. During evidence of PW1, one plastic jar bearing mark H1 produced by the MHCM containing the particulars of FIR and also containing the particulars of CFSL, sealed with the seal of DB. During evidence of PW1, MHCM Digitally signed SUDHIR by SUDHIR KUMAR SIROHI SC No. 9002/16 KUMAR Date:
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produced one small plastic container bearing mark H2, tied with doctor tape over which FIR number and other particulars of this case mentioned, sealed with the seal of AK and DKS. The container was opened, on opening it was found containing cream colour powder to which PW1 identified the same as the sample drawn by IO. The container along with the contraband collectively Ex P16. During evidence of PW1, MHCM produced one plastic container bearing mark I, tied with doctor tape over which FIR number and other particulars of this case mentioned, sealed with the seal of AK and DKS. The container was opened, on opening it was found containing one transparent packet containing cream colour substance. PW1 stated that the said powder is one which was recovered from the bag of accused Khurshid and was given mark I. The container along with white colour cloth containing the contraband collectively Ex P17. During evidence of PW1, one plastic jar bearing mark I-1 produced by the MHCM containing the particulars of FIR and also containing the particulars of CFSL, sealed with the seal of DB. During evidence of PW1, MHCM produced one small plastic container bearing mark I-2, tied with doctor tape over which FIR number and other particulars of this case mentioned, sealed with the seal of AK and DKS. The container was opened, on opening it was found containing cream colour powder to which PW1 correctly identified the same as the sample drawn by IO. The container along with the contraband collectively Ex P18. During evidence of PW1, MHCM produced one plastic container bearing mark J, tied with doctor tape over which FIR number and other particulars of this case mentioned, sealed with Digitally signed SUDHIR by SUDHIR SC No. 9002/16 KUMAR SIROHI FIR No. 06/2014 KUMAR Date:
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the seal of AK and DKS. The container was opened, on opening it was found containing one transparent packet containing cream colour substance. PW1 stated that the said powder is one which was recovered from the bag of accused Khurshid and was given mark J. The container along with white colour cloth containing the contraband collectively Ex P19. During evidence of PW1, one plastic jar bearing mark J1 produced by MHCM containing the particulars of FIR and also containing the particulars of CFSL, sealed with the seal of DB. During evidence of PW1, MHCM produced one small plastic container bearing mark J2, tied with doctor tape over which FIR number and other particulars of this case mentioned. It is sealed with the seal of AK and DKS. The container was opened, on opening it was found containing cream colour powder to which PW1 identified the sample as the same drawn by IO. The container along with the contraband collectively Ex P20. During evidence of PW1, MHCM produced one cardboard box on which words 'T.H.K. Fresh crop from Kashmir Walnut Kernels' printed and wrapped with doctor tape and sealed with the seal of AK. Cardboard opened and found containing another cardboard box in wrapped condition, two cloth bags on which the word 'heritage basmati rice' and 'dawat basmati rice' printed. The cardboard box containing the abovesaid articles ExP21 colly. During evidence of PW1, MHCM produced one black colour shoulder bag in unsealed condition and found containing some clothes. PW1 identified the same as the bag which was recovered from accused Khurshid Alam and PW1 stated that in this bag, accused Digitally signed SUDHIR by SUDHIR KUMAR SIROHI SC No. 9002/16 KUMAR Date:
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Khurshid Alam was carrying the four packets of contraband. The bag along with clothes ExP22 colly.
6. PW2 SI Vikram Dahiya member of raiding party deposed in line of PW1 Insp. Umesh Bharthwal.
7. PW4 HC Umardeen deposed that on 3/2/2014 he was posted as above. On the said day as per the instructions of the IO, he collected 10 sealed plastic jars along with one CFSL form vide RC no. 24/21/14 from MCHM PS Special Cell and took the same to CFSL, CBI, CGO Complex and deposited the case property there. Receipt of the same was given back to MHCM, PS Special Cell. So long as the case property remained in the possession of PW4, same was not tampered with in any manner. IO recorded statement of PW4 to this effect.
8. PW9 Inspector Pramod deposed that on 19/1/2014 he was posted at Special Cell, Lodhi Colony as SI. Before that the team including himself were working on the plan on the basis of the information to bust the drug cartel which was being run by one person namely Ali from Kuwait. The said drug cartel was being run from the countries namely Pakistan, Afghanistan and Kuwait. Earlier also they had busted similar cartel. The technical and manual surveillance were placed on for the purpose. The information was received that Ali was sending drugs to his associates in Tamil Nadu through his associates based in Kashmir. At about 4:30 p.m. one secret informer came to PW9 and gave the information that two persons namely Ganesh and Senthil were in Delhi for last few days and had come from Tamil Nadu and they would receive narcotic drugs at abut 6:30 pm Digitally signed SUDHIR by SUDHIR KUMAR SIROHI SC No. 9002/16 KUMAR Date:
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near Damdama Gurdwara Nizamuddin side from a Kashmiri person and if raid is conducted they could be apprehended. PW9 produced the informer before Insp. Umesh Barthwal/PW1 who further passed on this information to ACP Mr. Manishi Chandra who directed for conducting the raid. Thereafter PW9 reduced the information in writing in daily diary vide DD no. 8. The same was not found on record. PW9 submitted compliance of Section 42 of NDPS Act to Insp. Umesh Barthwa (mark A). A team consisting PW9, Insp. Umesh Barthwal, Inp. Kailash Bist, Insp. Neeraj, SI Vikram, ASI Mukesh, HC Bacchu, HC Sandeep, HC Gurmeet, Ct. Jagannathan, Ct. Virender along with informer was constituted. The team was briefed about the information. Thereafter, PW9 took the IO kit along with weighing machine, field testing kit and made departure vide DD no. 9 (Mark PW2/D1) left at about 5:30 p.m. in govt. vehicle DL1CM 0881 and Swift Dzire of SI Vikram Dahiya bearing no. DL1CM 5459. PW9 along with Insp. Umesh Barthwal, Insp. Kailash Bisht, SI Vikram Dahiya and informer were in Swift Dzire while remaining staff was in the govt. gypsy i.e. Insp. Neeraj, HC Bacchu, HC Gurmeet, HC Sandeep, HC Kushalpal, Ct. Jagannathan and Ct. Amit Gulia. After leaving the office while on the way alongwith the team, PW9 stopped the vehicle in which, PW9 was sitting near Dayal Singh College. PW9 asked 4-5 passersby to join the raiding team after sharing with them the secret information but none agreed and left without disclosing their names and addresses after mentioning their genuine reasons. At about 6 PM, PW9 alongwith raiding team and informer reached near round of Nizamuddin. PW9 requested 4-5 Digitally signed SUDHIR by SUDHIR SC No. 9002/16 KUMAR SIROHI FIR No. 06/2014 KUMAR Date:
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passersby to join the raiding party after sharing with them the secret information which PW9 had. After that, two persons disclosed their names as Rati Ram R/o Gali Anarkali, Daribakalan and other person namely Ikrar R/o Tankwali, Basti Nizamuddin, Delhi. However, they showed their inability to join the raiding team as they were to visit hospital urgently and they left thereafter. The gypsy was parked near round about. PW9 alongwith SI Vikram Dahiya and informer took position on the way leading to Damdama Gurudwara. The other members of the raiding team were also deputed differently. After 15 minutes, two persons were seeing coming on foot on the road leading to gurudwara and they stood there. They were identified by the informer as Ganesh who was wearing black pant, grey sweater and the other person namely Senthil who was wearing grey pant and jacket. The informer left the spot thereafter. After waiting for about 15 minutes, third person also came on foot from round about Nizammuddin side and coming towards Damdama Gurudwara. This person was carrying two cloth bags in his both hands and a black bag on his shoulder. This person shook hand with Ganesh and Senthil and handed over the cloth bag which he was holding in his left hand to Ganesh and right hand bag to Senthil. Thereafter, he started opening the third bag. PW9 gave the signal to raiding party for apprehending them. PW9 alongwith HC Gurmeet apprehended Ganesh alongwith cloth bag. PW9 correctly identified accused Ganesh. SI Vikram apprehended Senthil alongwith his bag. PW9 correctly identified Senthil. SI Mukesh apprehended the third person alongwith his black bag. PW9 identified Khurshid Alam. PW9 introduced SUDHIR Digitally by SUDHIR signed SC No. 9002/16 FIR No. 06/2014 KUMAR Date: 2023.12.08 KUMAR SIROHI PS Special Cell SIROHI 16:32:52 +0530 State Vs Khurshid Alam and Ors.. Page No. 23 of 48 himself and team members to all accused persons. PW9 also told them about the secret information which he had. PW9 also inquired the accused persons about the names and identities and their names were found to be B. Ganesh S/o Bogan R/o Village Pedalur, Perlmbur, Tamil Nadu. M. Senthil S/o Mani R/o Village Pedalur, Perlmbur, Tamil Nadu. Khurshid Alam S/o Azizur Rehman R/o Guthli Bagh, Gandarbal, J & K. PW9 prepared notices U/s 50 NDPS Act. The contents of the same were told to all the three accused persons in English and Hindi Language. They were informed about their legal rights available U/s 50 NDPS Act that their searches could be conducted in the presence of gazetted officer or magistrate and they would be called if they desired so. The accused persons were also explained the meaning of gazetted officer and magistrate. They were also informed that they can take the search of the police team members and the vehicle before they were to be searched. The carbon copy of the notice U/s 50 NDPS Act was served separately and individually to all the accused persons. PW9 had prepared notices U/s 50 NDPS Act in duplicate. All the accused persons firstly stated verbally that they did not want to be searched in the presence of either gazetted officer or a magistrate as they were with heroin and thereafter, they also gave the same in writing on their respective notices. PW9 proved the three notices U/s 50 NDPS Act. Notice pertaining to accused B. Ganesh (Ex.PW2/A). Notice pertaining to accused M. Senthil (Ex.PW2/B). Notice pertaining to accused Khurshid Alam (Ex.PW 2/C). All the three accused persons also acknowledged on their respective notices as received copies which is encircled Digitally signed SUDHIR by SUDHIR KUMAR SIROHI SC No. 9002/16 KUMAR Date:
FIR No. 06/2014PS Special Cell SIROHI 2023.12.08 16:32:58 +0530 State Vs Khurshid Alam and Ors.. Page No. 24 of 48 with red ink and is at point H on the respective notices of all the accused persons. PW9 asked from passersby at the spot to join the police proceedings after telling them the information which PW9 had but none agreed and left the spot without disclosing their names and addresses after telling their genuine problems. Thereafter, PW9 took cursory search of accused B. Ganesh and nothing incriminating was found from his personal search. Thereafter, PW9 conducted search of the cloth bag of red yellow colour over which, 'Dawat Basmati Rice' was mentioned. The bag was found containing one cardboard box bearing the writing of T.H.K. fresh crop from Kashmir. On opening the same, 3 polythene parcels were found. On opening the first polythene, it found containing one cloth parcel bearing writing in Urdu and numerics 555 2007, 11860. On further checking, it found containing a brown paper in a polythene and on checking the same, It found containing cream colour powder substance. Upon checking the same with the help of field testing kit, the opinion was got as heroin. The weigh of the recovered heroin was found to be 1 kg. Two samples of 10 gms each were taken out and kept in a transparent plastic jar. The remaining 980 gms heroin alongwith packings were separately put in plastic jar. All the three jars were wrapped with doctor tape. The sample jars were marked as A-1 & A-2 and the third jar was given mark A. On opening the second polythene parcel, it found containing one cloth parcel bearing writing in Urdu and numerics 555 2007, 11860. On further checking, it found containing a brown paper in a polythene and on checking the same, It found containing cream colour powder substance. Upon checking the same with Digitally signed by SUDHIR SUDHIR KUMAR SC No. 9002/16 FIR No. 06/2014 KUMAR SIROHI Date: 2023.12.08 PS Special Cell SIROHI 16:33:04 +0530 State Vs Khurshid Alam and Ors.. Page No. 25 of 48 the help of field testing kit, the opinion was got as heroin. The weigh of the recovered heroin was found to be 1 kg. Two samples of 10 gms each were taken out and kept in a transparent plastic jar. The remaining 980 gms heroin alongwith packings were separately put in plastic jar. All the three jars were wrapped with doctor tape. The sample jars were marked as B-1 & B-2 and the third jar was given mark B. On opening the third polythene parcel, it found containing one cloth parcel bearing writing in Urdu and numerics 555 2007, 11860. On further checking, it found containing a brown paper in a polythene and on checking the same, It found containing cream colour powder substance. Upon checking the same with the help of field testing kit, the opinion was got as heroin. The weight of the recovered heroin was found to be 1 kg. Two samples of 10 gms each were taken out and kept in a transparent plastic jar. The remaining 980 gms heroin alongwith packings were separately put in plastic jar. All the three jars were wrapped with doctor tape. The sample jars were marked as C-1 & C-2 and the third jar was given mark C. Thereafter, PW9 took cursory search of accused M. Senthil and nothing incriminating was found from his personal search. Thereafter, PW9 conducted search of the cloth bag of green yellow colour over which, 'Heritage Basmati Rice' was mentioned. The bag was found containing one cardboard box bearing the writing of T.H.K. fresh crop from Kashmir. On opening the same, 3 polythene parcels were found. On opening the first polythene, it found containing one cloth parcel bearing writing in Urdu and numerics 555 2007, 11860. On further checking, it found containing a brown paper in a polythene and SUDHIR Digitally by SUDHIR signed SC No. 9002/16 KUMAR KUMAR SIROHI Date: 2023.12.08 FIR No. 06/2014 SIROHI 16:33:10 +0530 PS Special Cell State Vs Khurshid Alam and Ors.. Page No. 26 of 48 on checking the same, It found containing cream colour powder substance. Upon checking the same with the help of field testing kit, the opinion was got as heroin. The weight of the recovered heroin was found to be 1 kg. Two samples of 10 gms each were taken out and kept in a transparent plastic jar. The remaining 980 gms heroin alongwith packings were separately put in plastic jar. All the three jars were wrapped with doctor tape. The sample jars were marked as D-1 & D-2 and the third jar was given mark D. On opening the second polythene parcel, it found containing one cloth parcel bearing writing in Urdu and numerics 555 2007, 11860. On further checking, it found containing a brown paper in a polythene and on checking the same, It found containing cream colour powder substance. Upon checking the same with the help of field testing kit, the opinion was got as heroin. The weight of the recovered heroin was found to be 1 kg. Two samples of 10 gms each were taken out and kept in a transparent plastic jar. The remaining 980 gms heroin alongwith packings were separately put in plastic jar. All the three jars were wrapped with doctor tape. The sample jars were marked as E-1 & E-2 and the third jar was given mark E. On opening the third polythene parcel, it found containing cream colour powder substance. Upon checking the same with the help of field testing kit, the opinion was got as heroin. The weigh of the recovered heroin was found to be 1 kg. Two samples of 10 gms each were taken out and kept in a transparent plastic jar. The remaining 980 gms heroin alongwith packings were separately put in plastic jar. All the three jars were wrapped with doctor tape. The sample jars were marked as F-1 & F-2 and the third jar was given mark F. SUDHIR Digitally by SUDHIR signed SC No. 9002/16 KUMAR KUMAR SIROHI FIR No. 06/2014 Date: 2023.12.08 PS Special Cell SIROHI 16:33:17 +0530 State Vs Khurshid Alam and Ors.. Page No. 27 of 48 Thereafter, PW9 took cursory search of accused Khurshid Alam and nothing incriminating was found from his personal search. Thereafter, PW9 conducted search of the cloth bag of black colour (shoulder bag). On checking the same, it found containing personal clothes i.e. pant, shirts, shaving kit and beneath the same, four polythene parcels. On opening the first polythene parcel, it found containing one cloth parcel bearing writing in Urdu and numerics 999 8888 2012 with moon and star impression. On further checking, it found containing a brown paper in a polythene and on checking the same, it found containing cream colour powder substance. Upon checking the same with the help of field testing kit, the opinion was got as heroin. The weigh of the recovered heroin was found to be 1 kg. Two samples of 10 gms each were taken out and kept in a transparent plastic jar. The remaining 980 gms heroin alongwith packings were separately put in plastic jar. All the three jars were wrapped with doctor tape. The sample jars were marked as G-1 & G-2 and the third jar was given mark G. Thereafter PW9 opened second polythene parcel recovered from the bag of accused Khurshid. There was a white cloth parcel bearing several stamps mark 2013/9922 alongwith impression of lion and Apple, A201 on both sides of parcel. On opening the aforesaid white cloth parcel, it found to contain a transparent polythene packet containing a brown paper packet. The packet was opened and it was found to contain cream colour powder substance. On checking with the help of field testing kit, it found to contain heroin. The recovered was weighed and the weight was 1kg. Two samples each of 10 gm heroin was taken out from Digitally signed SUDHIR by SUDHIR SC No. 9002/16 KUMAR SIROHI KUMAR Date:FIR No. 06/2014
PS Special Cell SIROHI 2023.12.08 16:33:23 +0530 State Vs Khurshid Alam and Ors.. Page No. 28 of 48 the recovered heroin and kept in two separate transparent plastic jars. The sample jars were wrapped by doctor tape. Remaining 980 gm heroin was kept in same polythene in which it was recovered. The aforesaid polythene was kept in other plastic container along with its packing. Plastic container (mark H) was wrapped by doctor tape. Both the samples kept in the plastic jar were also wrapped by doctor tape and same was marked as H1 & H2. Thereafter PW9 opened third polythene parcel recovered from the bag of accused Khurshid. On opening the aforesaid polythene parcel, it found to contain cream colour powder substance. On checking with the help of field testing kit, it found to contain heroin. The recovered was weighed and the weight was 1kg. Two samples each of 10 gm heroin was taken out from the recovered heroin and kept in two separate transparent plastic jars. The sample jars were wrapped by doctor tape. Remaining 980 gm heroin was kept in same polythene in which it was recovered. The aforesaid polythene was kept in other plastic container along with its packing. Plastic container (mark I) was wrapped by doctor tape. Both the samples kept in the plastic jar were also wrapped by doctor tape and same was marked as I1 & I2. Thereafter PW9 opened fourth polythene parcel recovered from the bag of accused Khurshid. On opening the aforesaid polythene parcel, it found to contain cream colour powder substance. On checking with the help of field testing kit, it found to contain heroin. The recovered was weighed and the weight was 1kg. Two samples each of 10 gm heroin was taken out from the recovered heroin and kept in two separate transparent plastic jars. The sample jars were wrapped by doctor tape. Remaining Digitally signed SUDHIR by SUDHIR SC No. 9002/16 KUMAR SIROHI KUMAR Date:FIR No. 06/2014
PS Special Cell SIROHI 2023.12.08 16:33:30 +0530 State Vs Khurshid Alam and Ors.. Page No. 29 of 48 980 gm heroin was kept in same polythene in which it was recovered. The aforesaid polythene was kept in other plastic container along with its packing. Plastic container (mark J) was wrapped by doctor tape. Both the samples kept in the plastic jar were also wrapped by doctor tape and same was marked as J1 & J2. CFSL form was filled and seal of AK was affixed on the same and seal of AK was also affixed on all the aforesaid 30 pullandas. The aforesaid pullandas were taken into possession vide seizure memo (Ex PW1/A). PW9 kept the one cardboard box and two cloth bags recovered were kept in third cardboard box. It was wrapped with the doctor tape and sealed with seal of AK and it was taken into possession (Ex PW2/D). Seal was handed over to SI Vikram Dahiya after use. PW9 prepared a rukka (Ex PW9/A). PW9 handed over the rukka, 30 sealed pullandas, carbon copy of seizure memo, CFSL form to SI Bachu with the direction to hand over the rukka to Duty officer and 30 sealed pullandas, carbon copy of seizure memo and CFSL form to concerned SHO. Meanwhile, SI Shivraj reached at the spot along with ASI Anil Sharma. PW9 handed over all the three accused namely Ganesh, Senthil and Khurshid along with the documents prepared by PW9. SI Shivraj interrogated the aforesaid accused persons. SI Shivraj prepared site plan at my instance (Ex PW9/B). PW9 left the spot and sent to office. His statement was recorded by the IO of the case. PW9 correctly identified the case property.
9. PW25 Insp Shivraj Rawat deposed that on 19.01.2014 he was working in Spl Cell, NDR as SI. On that day, he was present in his office. On that day he received a call from SI Digitally signed SUDHIR by SUDHIR KUMAR SIROHI SC No. 9002/16 KUMAR Date:
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Pramod Chauhan and he told him that he had apprehended three accused persons B Ganesh, M Senthil and Khurshid Alam with heavy quantity of narcotic drugs i.e. heroin at road towards Damdama gurudwara, Nizamuddin round about, Nizamuddin, Delhi and asked PW25 to reach at the spot. PW25 made his departure entry, PW25 along with ASI Anil Sharma went to the aforesaid spot and reached at the spot at about 11.15pm where SI Pramod along with other police officials met them. PW25 correctly identified all the three aforesaid accused persons by pointing out towards them with their names were in custody of SI Pramod Chauhan. SI Pramod Chauhan handed over PW25 the copy of FIR, copy of seizure memos and original notices served upon accused persons and a bag. He also told PW25 the facts of the case. PW25 prepared site plan (Ex PW9/B) at the instance of SI Pramod. A black bag containing some clothes and articles of accused Khurshid Alam which was handed over to PW25 by SI Pramod Chauhan were taken into possession (Ex.PW20/J). PW25 took the mobile phones and SIMs of all accused persons namely M Senthil, Khurshid Alam and B Ganesh vide seizure memos Ex.PW25/A, Ex PW25/B and Ex PW25/C respectively. PW25 thereafter deposed about arrest and personal search of accused persons. PW25 along with police officials and all accused persons left the spot at about 1am and reached at office of PW25 at about 1.10am. PW25 deposited the case property with MHC(M). All the aforesaid accused persons namely M Sethil, B Ganesh and Khurshid Alam were produced before Insp. Dinesh Kumar, the then SHO who made interrogation from accused persons and satisfied himself. PW25 made interrogation SUDHIR Digitally by SUDHIR signed SC No. 9002/16 KUMAR KUMAR SIROHI Date: 2023.12.08 FIR No. 06/2014 SIROHI 16:33:41 +0530 PS Special Cell State Vs Khurshid Alam and Ors.. Page No. 31 of 48 from accused persons. Accused B Ganesh made a disclosure statement (ExPW20/G). Thereafter, PW25 made interrogation from accused M Senthil and recorded his disclosure statement (ExPW20/H). Disclosure statement of accused Khurshid Alam (Ex PW20/I) was also recorded by PW25. HC Bacchu Singh came in office of PW25 at about 3.40am and handed over the computer copy of FIR (Ex.PW11/A) and original rukka to PW25. On 21.01.2014 PW25 prepared a report u/s 57 NDPS Act Ex PW25/D and same was produced before Insp Spl Cell who forwarded the same to ACP Concerned. On 22.01.2014 after taking permission from Senior police officials PW25 along with accused B Ganesh and other police officials left office of PW25 for going to Tamil Nadu in search of co accused persons. On 23.01.2014 they reached Chennai. PW25 further deposed about investigation of co-accused in this matter. On 03.02.2014 PW25 instructed Ct. Umarddin to take the samples from MHC(M), PS Spl Cell, Lodhi Colony and to deposit the same with CBI, CFSL. On instructions of PW25, Ct Umarddin went to PS and deposited the exhibits of the case with CBI, CFSL. He had handed over to PW25 copy of acknowledgment slip and copy of RC. PW25 recorded his statement. On 04.02.2014 PW25 received information sheet of accused Khurshid Alam and same was taken on record. On 17.02.2014 PW25 served notice u/s 91 CrPC to the nodal officers of Aircel, Airtel and J&K Bank. The notice u/s 91 CrPC served upon J&K Bank (Ex PW25/E). On 21.02.2014 PW25 had sent a letter through DCP concerned to DGP, J&K for intimation regarding arrest of accused Khurshid Alam and for providing information/documents in respect of SUDHIR Digitally by SUDHIR signed SC No. 9002/16 KUMAR KUMAR SIROHI FIR No. 06/2014 Date: 2023.12.08 SIROHI 16:33:46 +0530 PS Special Cell State Vs Khurshid Alam and Ors.. Page No. 32 of 48 accused Khurshid Alam. In response of reply of PW25, nodal officer of Aircel sent a letter (Ex.PW6/E), certificate u/s 65B Indian Evidence (Ex.PW6/D), CDR of mobile phone 8508457068 (Ex.PW6/B), CAF of mobile no. 8508457068 (Ex PW6/A), Cell ID Chart (Ex.PW6/C). PW25 had also received certificate u/s 65B Indian Evidence Act, CAF of mobile phone 8220623834 (ExPW17/A), CDR of aforesaid mobile phone (Ex PW17/B), certificate u/s 65B Indian Evidence Act (Ex PW17/C) from nodal officer Bharti Airtel Ltd. PW25 had also received reply from nodal officer, Vodafone. Nodal officer, Vodafone provided the CAF of mobile phone 9585396363 Ex PW7/A, CDR of aforesaid mobile phone (Ex PW7/B), certificate u/s 65B Indian Evidence Act (Ex PW7/C), CAF of mobile phone 9655107373 Ex PW7/D, CDR of aforesaid mobile phone (Ex PW7/E), certificate u/s 65B (Ex PW7/F), CAF of mobile phone 9654569083 (Ex PW7/G), CDR of aforesaid mobile phone (Ex PW7/H, certificate u/s 65B Indian Evidence Act (Ex PW7/I), CAF of mobile phone 9943380609 Ex PW7/J, CDR of aforesaid mobile phone (Ex PW7/K), certificate u/s 65B (Ex PW7/L). PW25 had also received CAF of mobile phone 8976008033 Ex PW5/A, CDR of aforesaid mobile phone (Ex PW5/B), certificate u/s 65 Indian Evidence Act (ExPW5/C), CAF of mobile phone 8976007996 Ex PW5/D, CDR of aforesaid mobile phone (Ex PW5/E), certificate u/s 65 Indian Evidence Act (ExPW5/F) from nodal officer, TATA Tele Services Ltd. On 25.03.2014 PW25 received reply from J&K bank regarding account opening form of A/c No. 0081040100905061 (ExPW24/A) in the name of accused Khurshid Alam with account statement (Ex.PW24/B).
Digitally signed SUDHIR by SUDHIR KUMAR SIROHI SC No. 9002/16 KUMAR Date: FIR No. 06/2014 PS Special Cell SIROHI 2023.12.08 16:33:52 +0530 State Vs Khurshid Alam and Ors.. Page No. 33 of 48
On 26.04.2014 PW25 got issued NBWs against accused Shahjahan and P Gopinath. On 28.04.2014 PW25 sent a letter Ex PW13/B to AFRRO, R K Puram, New Delhi for providing the journey details of accused P Gopinath. In response of letter of PW25, PW25 received a reply from AFRRO Ex PW13/C, Ex PW13/D and ExPW13/E. On 02.05.2014 PW25 got issued NBWs against accused Fayyaz. In response of the letter to DGP, J&K, PW25 received service details of accused Khurshid Alam (Ex PW22/A). On 13.06.2014 CFSL result was received and same was attached by PW25 in the file. On 04.07.2014 in response of notice of PW25, u/s 91 CrPC Ex PW14/A, PW25 received staying record of accused B Ganesh and M Senthil dated 18.01.2014 and 19.01.2014 Ex PW14/B along with photocopy of ID documents Ex PW14/C. PW25 took the aforesaid documents into possession vide memo ExPW14/D. PW25 completed the investigation. PW25 prepared the challan and same was filed before the court. PW25 correctly identified the case property.
Statement of the accused:
10. Statement of the accused persons were recorded under section 313 Cr.P.C. and all the incriminating circumstances appearing in evidence were put to the accused persons, to which accused persons denied all the incriminating circumstances and accused M. Senthil and B. Ganesh did not prefer to lead prefer to lead defence evidence while accused Khurshid Alam prefer to lead evidence in his defence thereafter matter was listed for defence evidence.
SUDHIR Digitally by SUDHIR signed SC No. 9002/16 KUMAR Date: 2023.12.08 KUMAR SIROHI FIR No. 06/2014 PS Special Cell SIROHI 16:33:58 +0530 State Vs Khurshid Alam and Ors.. Page No. 34 of 48 Defence Evidence.
11. Accused Khurshid examined DW1 AI Janesh Kumar in his defence evidence who brought record of memo 941/ACP dated 01.03.2014 (DW1/A colly) thereafter DE was closed.
Arguments:-
12. Ld. Defence counsel for the accused Khurshid Alam argued that the prosecution has failed to prove its case. It is further argued by the Ld. Counsel for the accused that the samples which were drawn by PW9 SI Pramod were sent to FSL and not the sample drawn before the Ld. Magistrate, therefore, there is violation of Section 52A NDPS Act and no primary evidence w.r.t. samples has been lead by the prosecution as per judgment of Yusuf @ Asif Criminal Appeal no. 3191 of 2003 decided by hon'ble Supreme Court of India on 13.10.2023. It is further argued by the Ld. Counsel for the accused that PW9 SI Pramod has lodged DD No. 8 about the information received by him in compliance of Section 42A NDPS Act and thereafter raiding party was formed and departure entry DD no. 9 was made but no DD no. 8 dated 19.01.2014 has been placed on record by the prosecution and PW1 Insp. Umesh Bharthwal in his cross examination has admitted that he was not given DD no. 8 qua information by SI Pramod, said document is Mark A and the document Mark A is not the information in compliance of Section 42 (1) and (2) NDPS Act even the authorization of ACP Mr. Manish Chandra is not on record to form raiding party nor Mr. Manish Chandra has appeared as a witness or cited as a witness by the prosecution to show authorization of raiding Digitally signed SUDHIR by SUDHIR KUMAR SIROHI SC No. 9002/16 KUMAR Date:
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party. It is further argued by Ld. Counsel for the accused that as per information mark A the secret informer came at 3 pm but as per PW1 Insp. Umesh Bharthwal and PW9 Insp. Pramod Kumar/IO, the secret informer came about 4.30 pm and the same has also been mentioned in rukka (Ex.PW9/A).
13. It is further argued by Ld. Counsel for accused that there is tampering with the sample as the sample when received in FSL were sent by memo no. 941/ACP dated 01.03.2014 with FIR No. 114 u/s 21/29 (DW1/A colly) and it is not a typographical error as PW25 Insp. Shiv Raj Rawat has deposed in cross examination that the FIR number was 114 and PW9 IO of the case/Inspector Pramod has deposed that while filling the the FSL form he has made no mistake, therefore, no corrigendum/clarification was issued by him. It is also argued by Ld. Counsel for accused that accused Khurshid was with a child (nephew) and the same fact has been withheld by the prosecution agency and even that child was produced before CWC by PW25 Inps. Shiv Raj, prosecution for the reason best known to them has not disclosed the fact in the whole chargesheet. It is also argued by Ld. Counsel for accused that PW9 used the seal of 'AK' but nowhere in the whole chargesheet who was the person with the name of AK has been mentioned nor it has been mentioned to whom seal belonged and there is no handing over memo of seal neither there is any memo depositing the seal in the malkhana. It is further argued by Ld. Counsel for accused that recovery was effected on 19.01.2014 and as per case of prosecution the samples were sent to FSL on 03.02.2014 therefore there is delay of 14 days in sending the samples but delay has not been SUDHIR Digitally by SUDHIR signed SC No. 9002/16 FIR No. 06/2014 KUMAR Date: 2023.12.08 KUMAR SIROHI PS Special Cell SIROHI 16:34:09 +0530 State Vs Khurshid Alam and Ors.. Page No. 36 of 48 explained. It is further argued by Ld. Counsel for accused that the prosecution has alleged suspicious financial transaction in the account of accused Khurshid from one Tanvir but no financial investigation has been carried out by the agency, therefore, this whole case has cooked up to implicate the accused Khurshid and prays for acquittal of accused Khurshid Alam.
14. Ld counsel for accused B Ganesh and M Senthil submitted that in addition to the submissions addressed by Ld counsel for accused Khurshid Alam, he wants to argue further. It is argued that recovery is dated 19.01.2014 i.e. during winter and at 6.30pm therefore no search warrant has been obtained by PW9 and grounds of belief for recovery between sunset and sunrise has not been mentioned by PW9 for search without warrant as per proviso of section 42 (1) NDPS Act. It is also argued that PW9 Insp Pramod Kumar was not empowered for search as per section 42 NDPS Act as no authorization has been brought on record by the prosecution nor ACP Mr Manishi Chandra who authorized raid appeared in the court to depose neither cited as a prosecution witness, therefore, the prosecution has violated mandatory provision of NDPS Act and prays for acquittal of accused persons namely M Senthil and B Ganesh.
Discussion:-
With respect to samples under Section 52A NDPS Act.
15. In Simarjit Singh Vs State of Punjab, SLP No. 1958/2023 dated 09.05.2023 Hon'ble Apex courts held as:
5. The learned counsel appearing for the appellant relied upon a decision of this Court in Digitally signed SUDHIR by SUDHIR SC No. 9002/16 KUMAR SIROHI KUMAR Date:
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the case of Union of India v. Mohanlal & Anr.
He submitted that the prosecution is vitiated as the work of drawing sample was done by PW-7 without taking recourse to sub-section 2 of Section 52A of the NDPS Act. He also pointed out that the examination-in-Chief of PW-7 SI Hardeep Singh which shows that the samples were drawn immediately after the seizure.
6.The learned counsel appearing for the respondent-State supported the impugned judgments.
7.We have perused the evidence of PW-7 Hardeep Singhin which he has stated that from the eight bags of poppy husk, two samples of 250 gms each were drawn and converted into 16 parcels. This has been done immediately after the seizure.
8.In paragraphs 15 to 17 of the decision of this Court in Mohanlal's case, it was held thus:
"15.It is manifest from Section 52-A(2) include (supra) that upon seizure of the contraband the same has to be forwarded either to the officer-
in-charge of the nearest police station or to the officer empowered under Section 53 who shall prepare an inventory as stipulated in the said provision and make an application to the Magistrate for purposes of (a) certifying the correctness of the inventory, (b) certifying photographs of such drugs or substances taken before the Magistrate as true, and (c) to draw representative samples in the presence of the Magistrate and certifying the correctness of the list of samples so drawn.
16.Sub-section (3) of Section 52-A requires that the Magistrate shall as soon as may be allow the application. This implies that no sooner the seizure is effected and the contraband forwarded to the officer-in-charge of the police station or the officer empowered, the officer concerned is in law duty-bound to approach the Digitally signed SC No. 9002/16 SUDHIR by SUDHIR KUMAR FIR No. 06/2014 KUMAR SIROHI Date:
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Magistrate for the purposes mentioned above including grant of permission to draw representative samples in his presence,which samples will then be enlisted and the correctness of the list of samples so drawn certified by the Magistrate. In other words,the process of drawing of samples has to be in the presence and under the supervision of the Magistrate and the entire exercise has to be certified by him to be correct.
17.The question of drawing of samples at the time of seizure which, more often than not,takes place in the absence of the Magistrate does not in the above scheme of things arise. This is so especially when according to Section52-A(4) of the Act, samples drawn and certified by the Magistrate in compliance with sub-sections (2) and (3) of Section 52-A above constitute primary evidence for the purpose of the trial. Suffice it to say that there is no provision in the Act that mandates taking of samples at the time of seizure. That is perhaps why none of the States claim to be taking samples at the time of seizure."
9.Hence, the act of PW-7 of drawing samples from all the packets at the time seizure is not in conformity with the law laid down by this Court in the case of Mohanlal1.This creates a serious doubt about the prosecution's case that substance recovered was a contraband.
10.Hence, the case of the prosecution is not free from suspicion and the same has not been established beyond a reasonable doubt.
Accordingly, we set aside the impugned judgments insofar as the present appellant is concerned and quash his conviction and sentence.
SUDHIR Digitally by SUDHIR signed KUMAR Date: 2023.12.08 KUMAR SIROHI SC No. 9002/16 SIROHI 16:34:35 +0530 FIR No. 06/2014 PS Special Cell State Vs Khurshid Alam and Ors.. Page No. 39 of 48
16. In the judgment of Yusuf @ Asif Vs. State, Criminal Appeal No. 3191/2023 Hon'ble Supreme Court of India has held:
"11. For the sake of convenience, relevant sub- sections of Section52A of the NDPS Act are reproduced hereinbelow:
"52A. Disposal of seized narcotic drugs and psychotropic substances.-
(1)______ (2) Where any [narcotic drugs, psychotropic substances, controlled substances or conveyances] has been seized and forwarded to the officer-in-charge of the nearest police station or to the officer empowered under section 53, the officer referred to in subsection (1) shall prepare an inventory of such [narcotic drugs,psychotropic substances, controlled substances or conveyances] containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the [narcotic drugs,psychotropic substances, controlled substances or conveyances] or the packing in which they are packed, country of origin and other particulars as the officer referred to in subsection (1) may consider relevant to the identity of the [narcotic drugs, psychotropic substances, controlled substances or conveyances] in any proceedings under this Act and make an application, to any Magistrate for the purpose of(a) certifying the correctness of the inventory so prepared; or
(b) taking, in the presence of such Magistrate,photographs of [such drugs or substances or conveyances] and certifying such photographs as true; or(c) allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate Digitally signed SUDHIR by SUDHIR KUMAR SC No. 9002/16 KUMAR SIROHI Date:
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and certifying the correctness of any list of samples so drawn.(3) Where an application is made under subsection (2), the Magistrate shall, as soon as maybe, allow the application.(4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872) or the Code of Criminal Procedure, 1973 (2 of 1974),every court trying an offence under this Act, shall treat the inventory, the photographs of [narcotic drugs, psychotropic substances, controlled substances or conveyances] and any list of samples drawn under subsection (2) and certified by the Magistrate, as primary evidence in respect of such offence."
12.A simple reading of the aforesaid provisions, as also stated earlier, reveals that when any contraband/narcotic substance is seized and forwarded to the police or to the officer so mentioned under Section 53, the officer so referred to in sub-section (1) shall prepare its inventory with details and the description of the seized substance like quality, quantity,mode of packing, numbering and identifying marks and then make an application to any Magistrate for the purposes of certifying its correctness and for allowing to draw representative samples of such substances in the presence of the Magistrate and to certify the correctness of the list of samples so drawn.
13.Notwithstanding the defence set up from the side of the respondent in the instant case, no evidence has been brought on record to the effect that the procedure prescribed under sub- sections (2), (3) and (4) of Section 52A of the NDPS Act was followed while making the seizure and drawing sample such as preparing the inventory and getting it certified by the Magistrate. No evidence has also been brought on record that the samples were drawn in the presence of the Magistrate and the list of the samples so drawn were certified by the Digitally signed SUDHIR by SUDHIR SC No. 9002/16 KUMAR SIROHI KUMAR Date:
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Magistrate. The mere fact that the samples were drawn in the presence of a gazetted officer is not sufficient compliance of the mandate of sub- section (2) of Section 52A of the NDPS Act.
14.It is an admitted position on record that the samples from the seized substance were drawn by the police in the presence of the gazetted officer and not in the presence of the Magistrate. There is no material on record to prove that the Magistrate had certified the inventory of the substance seized or of the list of samples so drawn.
15.In Mohanlal's case, the apex court while dealing with Section 52A of the NDPS Act clearly laid down that it is manifest from the said provision that upon seizure of the contraband, it has to be forwarded either to the officer-in-charge of the nearest police station or to the officer empowered under Section 53 who is obliged to prepare an inventory of the seized contraband and then to make an application to the Magistrate for the purposes of getting its correctness certified. It has been further laid down that the samples drawn in the presence of the Magistrate and the list thereof on being certified alone Union of India vs Mohanlal and Anr. (2016) 3 SCC 379 would constitute primary evidence for the purposes of the trial.
16. In the absence of any material on record to establish that the samples of the seized contraband were drawn in the presence of the Magistrate and that the inventory of the seized contraband was duly certified by the Magistrate, it is apparent that the said seized contraband and the samples drawn the refrom would not be a valid piece of primary evidence in the trial. Once there is no primary evidence available, the trial as a whole stands vitiated.
17. Accordingly, we are of the opinion that the failure of the concerned authorities to lead Digitally signed SUDHIR by SUDHIR KUMAR SC No. 9002/16 KUMAR SIROHI Date:
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primary evidence vitiates the conviction and as such in our opinion, the conviction of the appellant deserves to be set aside. The impugned judgment and order of the High Court as well as the trial court convicting the appellant and sentencing him to rigorous imprisonment of 10 years with fine of Rs.1 lakh and in default of payment of fine to undergo further imprisonment of one year is hereby set aside."
17. PW9 Insp. Pramod/seizing IO has deposed that he collected the samples of 10 grams each from every separate polythene mark A1, A2, B1, B2, C1, C2, D1, D2, E1, E2, F1, F2, G1, G2, H1, H2, I1, I2, J1 & J2. After recovery the investigation was marked to PW25 Insp. Shiv Raj Rawat who deposed that on 03.02.2014 he instructed Ct. Umardeen/PW4 to take the samples from MCHM and deposited the same with CFSL thereafter PW4 took the samples to CFSL CBI CGO Complex and deposited the same, accordingly, the samples drawn by PW9/Insp. Pramod on spot at time of recovery were sent to CFSL and not the samples drawn before the Ld. Magistrate therefore in the absence of sample drawn before Ld. Magistrate and absence of inventory of seized contraband duly certified by Ld. Magistrate as per Section 52A NDPS Act, it is apparent that the seized contraband and the sample drawn are not a primary evidence in trial (reliance has been placed upon Yusuf (supra) judgment, accordingly, in the absence of primary evidence w.r.t. samples the whole trial stands vitiated and this is a sole ground which entitles the accused persons for acquittal but other pleas of Ld. Counsels for accused persons are also discussed.
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18. PW9 Insp. Pramod has deposed that on 19.01.2014 at about 04.30 pm one secret informer came and gave secret information about accused persons, he reduced the same into writing vide DD no. 8 but DD no. 8 is not on record nor produced during trial. PW9 further deposed that he submitted compliance of section 42 to Insp. Umesh Bharthwal (mark A) bearing the signature of Insp. Umesh barthwal at point A and signature of ACP Mr. Manish Chandra at point C. PW1 Mr. Umesh Bharthwal has deposed during cross examination that he was not given DD entry no. 8 qua information by SI Pramod except mark A and he was aware that ACP has seen the information mark A but there was no noting of the ACP qua raid on it. Therefore, it is a fact on record that the DD entry no. 8 dated 19.01.2014 has not been placed on record by prosecution for the reason best known to the prosecution and even the document Mark A allegedly compliance of Section 42 NDPS Act by the prosecution does not bear the authorization of ACP Mr. Manishi Chandra for formation of raiding party. Mr. Manishi Chandra/ACP neither appeared in the Court nor cited as a witness by the prosecution, therefore, in the absence of DD no. 8 dated 19.01.2014 and testimony of Mr. Manishi Chandra it becomes doubtful that the raid was authorized by ACP Mr. Manishi Chandra. The raid was conducted on 19.01.2014 and accused persons were apprehended at about 6.30pm therefore during winters, it is sunset at 6.30pm and it is an admitted case of prosecution that no search warrant has been obtained nor PW9 Insp Pramod Kumar has anywhere mentioned the reasons to believe that a search warrant or authorization cannot be obtained SC No. 9002/16 SUDHIR Digitally by SUDHIR signed FIR No. 06/2014 KUMAR KUMAR SIROHI Date: 2023.12.08 PS Special Cell SIROHI 16:35:07 +0530 State Vs Khurshid Alam and Ors.. Page No. 44 of 48 without affording opportunity for the concealment of evidence or facility for escape of offender which is required under Section 42(1) NDPS Act proviso. Accordingly, in these circumstances, document Mark A can not be held to be sufficient compliance of Section 42 NDPS Act and that too in the light where there is discrepancy regarding receiving of secret information by police officials as in document Mark A it has been mentioned that the secret informer came at about 03.00 pm while in rukka (Ex.PW9/A) it has been mentioned that the secret informer came at about 04.30 pm even PW9 seizing IO/Insp. Pramod has also deposed that the secret informer came at 04.30 pm.
19. PW25 Insp. Shiv Raj has deposed that samples were sent to FSL through PW4 HC Umardeen i.e. samples/10 sealed jar with one CFSL Form vide RC No. 25/21/14 were sent to CFSL CGO Complex on 03.02.2014. While PW16 Dr. Dipti Bhargav Senior Scientific Officer, CFSL has deposed that vide memo no. 941/ACP NDR Special Cell dated 03.01.2014, 10 sealed small size plastic container were forwarded to Director CFSL for chemical analysis and expert opinion. This case was received in chemistry division on 03.02.2014 under the supervision of HOD chemistry, same was allotted to her on 05.02.2014 for chemical analysis and the smaples were found positive for Heroin, Morphine, 6-Monoacetylemorphine, Codeine, Aacetylcodeine, Narcotine, Papavarin, Thebaine, Caffeine, Acetaminophen, Phenobarbitone, Cocaine, Diazepam, Amphetamine and methadone. In the forwarding letter to CFSL Ex.PW25/D1, the FIR Number has been mentioned as 114 dated 19.01.2014 and even PW25 has mentioned that the forwarding letter contains the Digitally signed SUDHIR by SUDHIR SC No. 9002/16 KUMAR SIROHI KUMAR Date:
FIR No. 06/2014SIROHI 2023.12.08 PS Special Cell 16:35:13 +0530 State Vs Khurshid Alam and Ors.. Page No. 45 of 48 nature of examination required contains FIR No. 114 and clarified that the memo no. 941/ACP/NDR/Special Cell was dated 03.02.2014 and not 03.01.2014 but the same fact has not been mentioned in the chargesheet. Ironically, DW1 ASI Jagnesh brought the dispatch register of memo no.
941/ACP/NDR/Special Cell dated 03.01.2014 and as per same, the sample was dispatched on 02.02.2014 (Ex.DW1/B colly), therefore, there is discrepancy as when the sample was dispatched on 02.02.2014 then how the memo 941/ACP/NDR/Special Cell can have the date of 03.02.2014 as clarified by PW25, accordingly, the documents of the prosecution are not supporting the version of prosecution that the samples were sent to CFSL on 03.02.2014 hence, the tampering of sample can not be ruled out and that too when there is delay of 14 days from 19.01.2014 to 03.02.2014 in sending the samples to CFSL, even this delay has not been explained by the prosecution and not even a single word has been murmured by the prosecution wr.t. delay in sending the samples to CFSL in whole evidence or in the charge-sheet.
Seal used in present matter
20. PW9 Insp. Pramod has deposed that he used the seal of 'AK' and Insp. Bharthwal was incharge of the team and on that day Insp. Umesh Bharthwal kept 2 seals of 'AK' and 'SRR' with him though no record was maintained with the movement of the seal, the seal AK was of SI Alok Kumar who was not the member of the raiding team in the present case, contrary PW1 Insp. Umesh Bharthwal has deposed that he did not know as to Digitally signed SUDHIR by SUDHIR KUMAR SIROHI SC No. 9002/16 KUMAR Date:
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from where SI Pramod obtained the seal of impression 'AK' and he can not say if the seal of AK was issued to SI Pramod, accordingly, there is contradiction in the deposition of prosecution witnesses how PW9/ Insp. Pramod received the seal of AK when no person with the initial of AK was member of raiding party and this fact becomes more important as there is no handing over memo of seal or seal movement register that too when there is discrepancy in sending of samples to CFSL with delay.
21. Contradiction w.r.t. presence of child with accused Khurshid Alam at the time of arrest of accused Khurshid Alam.
22. PW25 Insp Shivraj Rawat had deposed that when accused Khurshid Alam was apprehended with accused M Senthil and B Ganesh, one child was with them but he has not mentioned about the aforesaid child in the charge sheet at the time of apprehension of accused Khurshid Alam, the aforesaid child was handed over to NGO situated in Lajpat Nagar. This fact was brought on record by the Ld counsel for accused when he produced the document mark D2 to the prosecution witnesses that accused Khurshid Alam was accompanied with child but in the whole charge-sheet nothing had been murmured about the child. In the order of CWC dated 21.01.2014, the age of child has been mentioned as 13 years and it has been mentioned that he was accompanied by his chacha at the time of his arrest. Ironically, PW9 Insp Pramod Kumar, seizing IO had deposed that accused was coming alone from round about Chambri towards Damdama Gurudwara and he has no knowledge about SUDHIR Digitally by SUDHIR signed SC No. 9002/16 KUMAR KUMAR SIROHI Date: 2023.12.08 FIR No. 06/2014 SIROHI 16:35:25 +0530 PS Special Cell State Vs Khurshid Alam and Ors.. Page No. 47 of 48 the document mark D2. It means that the version of seizing IO PW9 Insp Pramod Kumar and PW25 Insp Shivraj Rawat, Investigating Officer of the case are different on aspect of presence of child with accused Khursid and the document mark D2 confirms the presence of nephew of accused Khurshid aged 13 years with him but the said fact has not been disclosed anywhere in the whole charge-sheet by the prosecution for the reasons best known to them, therefore, this puts a doubt on credibility of investigation and deposition of provisions of prosecution witnesses in court.
Final verdict:
23. In view of the abovesaid discussion, prosecution has failed to prove its case and accused Khurshid Alam is acquitted of offence u/s 21 (c) NDPS Act and accused Khurshid Alam, B. Ganesh and M. Senthil are acquitted of the offence u/s 29, 21(c) r/w Section 29 NDPS Act. Seprate ordersheet has been passed for compliance of Section 437-A CrPC.
Announced in the open court on 08.12.2023. SUDHIR Digitally signed by SUDHIR KUMAR SIROHI KUMAR Date: 2023.12.08 SIROHI 16:35:33 +0530 (SUDHIR KUMAR SIROHI) ASJ (SPECIAL JUDGE) NDPS Act, New Delhi District, PHC, ND SC No. 9002/16 FIR No. 06/2014 PS Special Cell State Vs Khurshid Alam and Ors.. Page No. 48 of 48