Delhi District Court
State vs Mohd Mehfooj Alam on 12 March, 2024
IN THE COURT OF MS. BHAVNA KALIA:
SPL. JUDGE (NDPS)-01: DWARKA COURTS: NEW DELHI
SC No. 71-2020
FIR No. 299-2019
U/s. 20 (b) (ii) (C)/29 NDPS Act
PS: Mohan Garden
State vs. Mohd Mehfooj Alam
Date of Institution of case:-03.02.2020
Date of arguments:-21.02.2024
Date on which Judgment pronounced:-12.03.2024
JUDGMENT
CNR No. :DLSW01-001353-2020
Date of commission of the offence :25.07.2019
Name of the complainant :SI Roshan Lal
Name and address of accused :1. Mohd. Mehfooj Alam
S/o Sh. Mohd. Mustafa
R/o Flat No. 301,
KTM Appartment,
Pragati Nagar, Virar (East),
Mumbai (Maharashtra)
Offence complained of :20 (b) (ii) (C)/29 NDPS Act
Plea of accused :Pleaded not guilty
Date of order :12.03.2024
Final order :Acquitted
At the outset, it is clarified that accused Pramod was discharged vide order dt. 12.04.2022 and accused Austin was declared PO vide order dt. 17.12.2019.
THE CASE OF THE PROSECUTION:
1. It is the case of the prosecution that on 26.07.2019, the investigation of the present case was marked to IO/SI Dharmender vide DD No. 2 AATS Dwarka, after which he proceeded to the spot near Moksh Stock, Vipin Garden, Najaftarh to Uttam Nagar Road, Delhi where he met SI Roshan Lal, ASI Sanjay Kumar and Ct. Vinod SC No. 71-2020 State Vs. Mohd Mehfooj Alam Page 1 of 44 who were present there with the accused Mohd. Mehfooz Alam. SI Roshan Lal apprised IO about the facts of the case and handed over the entire proceedings of the case alongwith accused to the IO. The IO checked the documents handed over by SI Roshan Lal and took custody of the same and in the meantime, HC Vijay came back to the spot from the PS after registration of the case alongwith copy of FIR and original rukka which he handed over to the IO. As per the contents of the FIR and original rukka, it is stated by the prosecution, that ASI Sanjay Kumar, while he was present on duty at AATS Dwarka, was given secret information by secret informer at his office that one person by the name of Mohd. Mehfooj Alam who stated himself to be resident of Mumbai and supplied Charas, would come at around 08-00 pm to 09.00 pm with heavy amount of Charas to the road which goes from Najafgarh to Uttam Nagar at bus stand near Moksh Stock. He was informed that accused would supply Charas in huge quantity to another person. He was further informed that if they would reach on time at the spot, they could apprehend these persons red handed. ASI Sanjay Kumar satisfied himself regarding the information provided by the secret informer and about 07.15 pm produced the secret informer before Insp. AATS Dwarka Sh. Ram Kishan at his office. Insp. Ram Kishan satisfied himself regarding information provided by the secret informer and informed ACP Operations Dwarka, Sh. Rajender Singh, on phone regarding the said information. Sh. Rajender Singh directed them to constitute a raiding party for purpose of conducting raid and other proceedings. Insp.
Ram Kishan directed SI Roshan Lal accordingly. SI Roshan Lal reduced the said information into writing vide DD No. 17 at about 07.30 pm and produced the copy of the same before Insp. Ram Kishan in compliance of Section 42 NDPS Act. At the direction of Insp. Ram SC No. 71-2020 State Vs. Mohd Mehfooj Alam Page 2 of 44 Kishan, SI Roshan Lal prepared a raiding team constituting of himself, ASI Sanjay Kumar, HC Vijay Singh and Ct. Vinod Kumar. The raiding party then took an IO kit bag, field testing kit and electronic weighing machine and proceeded towards the spot in two cars alongwith Insp. Ram Kishan and secret informer. In Insp. Ram Kishan's car, he himself with ASI Sanjay Kumar and secret informer went to the spot. In SI Roshan Lal's car, he himself with HC Vijay and Ct. Vinod Kumar went to the spot carrying DD No. 18. They left the office at about 07.40 pm and on the way to the spot SI Roshan Lal stopped the car near metro pillar no. 822 and 801 to ask 5-6 persons passing by at both the places to join the proceedings but no one was ready and went away without disclosing their names and addresses stating personal difficulties. Due to paucity of time, legal notice could not be served upon any of these persons. SI Roshan Lal without wasting further time, reached the spot at Bus Stand before Moksh Stock where Insp. Ram Kishan was present and he briefed the raiding party. SI Roshan Lal alongwith secret informer went near the bus stand. Insp. Ram Kishan and ASI Sanjay Kumar stood at the left of the bus stand at a distance of about 10-15 ft., and HC Vijay with Ct. Vinod stood at the right of the bus stand at a distance of about 10-15 ft. Everybody took their respective positions. At about 08.20 pm, one young person, on whose right foot there was tied a white coloured cloth and who was wearing a black coloured tshirt and blue jeans and who was carrying one green black coloured bag in his right hand, got off a bus and stood there. On seeing him, the secret informer pointed to the said person and told SI Roshan Lal that this was the person who had come to supply Charas. Thereafter, the secret informer left towards Dwarka Mor. The said person stood there waiting for someone but after 10 mins of waiting, he started to proceed back. On SC No. 71-2020 State Vs. Mohd Mehfooj Alam Page 3 of 44 seeing this, SI Roshan Lal, with the help of the raiding party, apprehended the said person at about 08.30 pm. This person disclosed his name as Mohd. Mehfooz Alam S/o late Mohd. Mustafa R/o Mumbai, aged about 34 years (hereinafter the accused). The accused told them that he was hurt on his right foot. On seeing the commotion, 8-10 curious people collected at the spot but when they were asked to join the investigation, they all left without disclosing their names and addresses stating personal difficulties. Thereafter, SI Roshan Lal introduced himself and his team to the accused and told him about the secret information that accused was carrying Charas and if he was searched, there was a possibility that Charas would be recovered from him. Accused was apprised of his legal rights and informed that he had a Right to be searched before a Gazetted Officer or Magistrate and that such Officer or Magistrate could be called at the spot and that before the police party searched him, he could conduct a search of the police party. SI Roshan Lal explained the meaning of Gazetted Officer and Magistrate to the accused and gave him notice u/s 50 NDPS Act by preparing carbon copy. Original notice was served upon the accused. Insp. Ram Kishan informed ACP Operations on phone about the incident who then came to the spot. In the presence of ACP Operations, SI Roshan Lal took the bag, which was being carried by the accused in his right hand, in his custody and opened its zip to check the same. SI Roshan Lal found a black coloured polythene inside a bag which was tied at both ends in a knot. On opening of one knot of the said black polythene, the same was checked and inside it, three bundles were found wrapped in brown tape. On opening the three bundles, the same were checked and each bundle was found to contain 10-10 transparent plastic pouches which on counting, totaled 30 in number. In every transparent plastic pouch, SC No. 71-2020 State Vs. Mohd Mehfooj Alam Page 4 of 44 it was found to contain a substance which was black in colour, malleable and foul smelling. SI Roshan Lal took a pinch of the substance from all 30 transparent plastic pouches and tested it in the field testing kit and found the substance to be Charas. All the 30 transparent plastic pouches were weighed on the electronic weighing scale and the total weight was found to be 3 Kg 100 Grams. From every pouch, small quantity of sample was taken out and two samples were prepared in two transparent round plastic boxes of 50-50 grams each and they were covered with yellow lids. Both these plastic boxes were put in separate white coloured cloths and two pulandas were prepared marked as Mark S1 and S2. All 30 transparent plastic pouches which contained the remaining Charas and the three bundles which were wrapped in brown tape were put in the same black coloured polythene which was again tied on both the sides in a knot. The said black coloured polythene was put in the green black coloured bag which was further put in a white plastic katta/gunny bag and which was tied with white coloured cloth and pulanda was prepared which was marked as Mark A. All the three pulandas were sealed with the seal of 'RLY. SI Roshan Lal filled the FSL form on which the seal of 'RLY' was put as sample. After use, the seal was handed over to Ct. Vinod. Thereafter, SI Roshan Lal took the accused and recovered pulandas, in his custody. ACP Operations Sh. Rajender Singh put his signatures on the recovery memo of Charas. Since, accused was caught with illegal Charas and found to have committed offence u/s 20 NDPS Act, rukka was prepared and handed over to HC Vijay alongwith the three pulandas, FSL form, the carbon copy of recovery memo and he was told to hand over the same to SHO Mohan Garden in compliance of Section 55 NDPS Act for registration of FIR by Duty Officer. After the case was registered, Insp. AATS/DWD SC No. 71-2020 State Vs. Mohd Mehfooj Alam Page 5 of 44 directed the investigation to be marked to ASI Dharmender. SI Roshan Lal remained at the spot with the accused and the raiding party. SI Roshan Lal put the FIR Number 299/2019 on all the documents related to the case. Site plan was prepared at the instance of SI Roshan Lal and the spot where the accused was apprehended with the Charas was marked as Mark A. Statement of SI Roshan Lal was recorded by the IO u/s 161 Cr.P.C. The IO was told about the Charas recovered from the accused and the IO recorded the statement of the accused. Accused was arrested. Documents were completed. All due compliances were done as per law. Accused was personally searched and original copy of notice u/s 50 NDPS Act in folded condition and Rs. 1640/- in cash was seized from him and his personal search memo was prepared. The articles recovered in personal search were deposited in the malkhana at the Police Station (hereinafter PS). Statement of witnesses from PS Mohan Garden namely SHO Insp. Baljeet Singh and MHC(M) CP HC Narender were recorded u/s 161 Cr.P.C. The copy of intimation u/s 55 NDPS Act recorded through DD No.5A dt. 26.07.2019 was taken from SHO PS Mohan Garden and put by the IO in his file. Medical of accused was got done in DDU Hospital, Hari Nagar. During investigation, statement of HC Vijay Singh and Ct. Vinod Kumar was recorded u/s 161 Cr.P.C. Statement of Insp. Ram Kishan was also recorded u/s 161 Cr.P.C. Report u/s 57 NDPS Act was prepared which was forwarded to ACP Operations/DWD through Insp. AATS/DWD. On 26.07.2019, accused was produced before Spl. Judge NDPS and thereafter, further investigation was undertaken. During Police Custody of accused, on the basis of his disclosure statement, search was made for co-accused Austin Cardoz (who had made demand for the contraband) in Mumbai but he could not be traced. Further, on the basis of disclosure SC No. 71-2020 State Vs. Mohd Mehfooj Alam Page 6 of 44 statement of accused, the supplier namely Pramod Kumar @ PK at Kullu and Mandi (HP) was searched for and he was apprehended on 04.08.2019. Accused PK was given notice u/s 50 NDPS Act but no contraband was recovered from him. He was apprised about the case and his disclosure statement was recorded. He was arrested and documentation was completed. On his personal search, folded notice u/s 50 NDPS Act and Rs.70,000/- were recovered which was deposited in malkhana. On 05.08.2019, both accused were sent to judicial custody. On 29.07.2019, the samples of Charas were sent to FSL, Rohini vide RC No. 110/21/19 and acknowledgment was received for the same. Report was received from FSL which was filed stating that the exhibits S1 and S2 were found to be Charas. Application was filed for releasing of notices u/s 50 NDPS Act deposited in the malkhana which was allowed and the said notices were filed with the file. Proceedings against accused Austin Cardoz was initiated u/s 82 Cr.P.C. and he was declared as Proclaimed Offender on 17.12.2019. Since, there was enough evidence against Mohd. Mefooz Alam and accused Pramod Kumar, the charge-sheet was filed and it was further stated that in case, accused Austin Cardoz was apprehended in future, supplementary charge-sheet would be filed against him.
COGNIZANCE AND SUPPLYING OF DOCUMETS:
2. On 03.02.2020, cognizance of the offence punishable u/s 20/29 of NDPS Act was taken. On 13.02.2020, documents were supplied to accused Pramod and on 28.02.2022, documents were supplied to accused Mohd. Mehfooj Alam.SC No. 71-2020 State Vs. Mohd Mehfooj Alam Page 7 of 44
CHARGE:
3. On 12.04.2022, accused Pramod Kumar was discharged from the present case and Charge was framed qua accused Mohd.
Mehfooj Alam for offence under Section 29 of NDPS Act r/w/s 20 (b)
(ii) (C) of the NDPS Act to which he pleaded not guilty and claimed trial.
PROSECUTION WITNESSES:
4. The prosecution examined 14 witnesses in support of its case.
5. PW-1 HC Mahesh is a formal witness who had registered the FIR Ex.PW-1/A.
6. PW-2 SI Roshan Lal is the complainant and he had deposed that on 25.07.2019, he was posted at AATS Dwarka as sub-
Inspector and on that day, one secret informer met with ASI Sanjay and informed him that one person namely Mohd Mejfooj Alam who used to be involved in business of Charas, would come at Najafgarh to Uttam Nagar Road near Moksh stock between 8:00 pm to 9:00pm and if raid be conducted he would be apprehended. He has further deposed that thereafter, secret informer was produced before Inspector Ram Kishan by ASI Sanjay and thereafter, Inspector Ram Kishan further shared the secret information with ACP Rajender Singh, Operation Cell, Dwarka and after inquiry from secret informer, Inspector Ram Kishan ordered for conducting raid. He has further deposed that thereafter, he reduced secret information into writing SC No. 71-2020 State Vs. Mohd Mehfooj Alam Page 8 of 44 vide DD No. 17, which is Ex.PW2/A, dated 25.07.2019 for proceedings u/s 42 of NDPS Act. He has further deposed that thereafter, on the direction of Inspector Ram Kishan AATS, a raiding party was constituted by him consisting of Inspector Ram Kishan, ASI Sanjay, HC Vijay and Ct. Vinod and himself. He said that secret informer also accompanied the raiding party. He has further deposed that he briefed the raiding team about the secret information and he took IO kit bag, field test kit, electronic weighing machine with him. He has further deposed that they started from the office of AATS at about 7.40 p.m. in two private cars alongwith secret informer after making departure Entry vide DD no. 18, which is Ex.PW2/B. He has stated that in his car, HC Vijay and Ct. Vinod were with him and in the other car, Inspector Ram Kishan along with ASI Sanjay and secret informer were sitting. He stated that they reached at the spot i.e. near Moksh Stock, Vipin Garden, Uttam Nagar, Delhi and on the way, 5-6 public persons were requested to join the raiding party but none of the public persons were inclined to join the raiding party. He has further deposed that at 8:00pm, they reached at the spot and after reaching the spot, Inspector Ram Kishan briefed the members of the raiding party and he requested passersby to join the investigation but all refused for the same. He has further deposed that the members of the raiding party took position at different points near the spot and at about 8:20 p.m, one person wearing black T-shirt and blue jeans carrying a black, green colour bag de-boarded from the bus at the spot and after de- boarding from the bus, accused remained present at the spot for 10 minutes waiting for someone. He stated that after seeing the accused, secret informer pointed out towards the accused and thereafter, accused was apprehended by him along with ASI Sanjay with the help of raiding team. He has further deposed that on inquiry, name of SC No. 71-2020 State Vs. Mohd Mehfooj Alam Page 9 of 44 accused was revealed that Mohd Mehfooj Alam. He has further deposed that Inspector Ram Kishan informed the ACP, Operation regarding apprehension of accused through telephone and thereafter, he informed the accused about the secret information and that his search was to be taken and he further apprised him about his legal right that his search can be taken in the presence of any Magistrate or Gazetted officer and if he desires they can be called at the spot. He has deposed that accused was also apprised that before his search, he could take search of police party and police vehicles. He has further deposed that he prepared notice under Section 50 NDPS Act in duplicate with the help of a carbon and the notice under Section 50 NDPS Act was given to the accused in original and after going through the contents of the same, accused gave his reply in his handwriting on the carbon copy of the notice stating therein that he did not want himself to be searched in front of Gazetted Officer or Magistrate and that he also did not want to take search of police party and police vehicles. He has deposed that accused stated that charas was lying in his bag. He has further deposed that in the meantime, ACP Rajender Singh also reached at the spot and further search was carried out in the presence of ACP. He said that the carbon copy of the notice under Section 50 NDPS Act was Ex.PW2/A, and the reply of the accused was Ex.PW2/B and original copy of notice was Ex.PW2/1. He has further deposed that thereafter, the search of the black, green bag of the accused which accused was carrying was taken by him and on search of said bag, one black colour polythene containing three bundle wrapped with brown tape were found inside the bag. He has further deposed that the bundles were opened and each bundle had 10 transparent polly pouches which were counted and found to be 30 polly pouches and all the 30 polly pouches were SC No. 71-2020 State Vs. Mohd Mehfooj Alam Page 10 of 44 containing black sticky, malleable, foul smelly substance. He said that thereafter, all 30 polly pouches were tested with the field test kit and found to be containing charas. He stated that thereafter, all 30 polly pouches were weighed with the electronic weighing machine and found to be 3 Kg 100 grams. He has further deposed that thereafter, samples were taken out from each of 30 polly pouches in small quantity and two samples of 50 grams each were prepared in two plastic boxes which were wrapped with white cloth and two pulandas were prepared and marked as mark S1 and S2. He further stated that thereafter, all the 30 polly pouches of charas along with empty bundles were put inside the same black colour polythene and kept in the same green colour bag. He stated that the green black bag was put inside a white plastic katta and prepared pulanda which was marked as Mark A and all three sealed pulanda were sealed with the seal of RLY. He further stated that Form FSL was filled up and seal RLY was affixed and thereafter, he seized all three pulandas vide memo Ex.PW2/C and after use seal was handed over to Ct. Vinod. He has further deposed that thereafter, he prepared rukka u/s 20 of NDPS Act which is Ex.PW2/D and handed it over to HC Vijay along with all the pulandas, FSL Form and carbon copy of seizure memo and sent him to PS Mohan Garden for registration of FIR and proceedings u/s 55 of NDPS Act. He has further deposed that after registration of FIR, HC Vijay returned back at the spot along with copy of FIR and original rukka and in the meantime, SI Dharmender also reached at the spot. He stated that HC Vijay handed over copy of FIR and original rukka to SI Dharmender and he produced the accused before SI Dharmender along with the documents and SI Dharmender prepared site plan at his instance, which is Ex.PW2/E. He stated that after IO recorded his statement, he left the spot. He has further deposed that on 26.07.2019, SC No. 71-2020 State Vs. Mohd Mehfooj Alam Page 11 of 44 he sent intimation under Section 57 of NDPS Act to the ACP, Operation through Inspector AATS, which is Ex.PW2/F. He identified the case property produced before the Court by the MHC(M) on production of which following observation was made by the Court:
At this stage, MHC(M) has brought case property ie one white plastic katta which is marked A having the particulars of the present case and duly counter signed by SHO Baljeet Singh and sealed with seal of 'RLY' and 'BS'. The said plastic katta is opened and one black and green colour bag taken out containing one black colour polythene which is containing 30 polly pouches of charas and three brown colour empty packets and shown to the witness and witness correctly identified the same. Case property ie 30 polly pouch of charas is Ex.P-1 (colly). Black and green colour bag is Ex.P-2 and three empty packets are Ex.P-3 (colly).
At this stage, MHC(M) has also brought two envelopes having the particulars of the present case and the first envelope is marked as Mark S1, same is sealed with the seal of 'FSL'. Envelope is opened and white cloth (loose) and one transparent box / jar (loose) contain- ing charas is taken out from the white pulanda and shown to the wit- ness and witness correctly identified the same. Same is Ex.P-4.
At this stage, MHC(M) has also brought two envelopes having the particulars of the present case and the first envelope is marked as Mark S2, same is sealed with the seal of 'FSL'. Envelope is opened and white cloth (loose) and one transparent box / jar (loose) containing charas is taken out from the white pulanda and shown to the witness and witness correctly identified the same. Same is Ex.P-5.
7. During his cross-examination, PW-2 has stated that the distance between the office AATS and the spot was about 3-4 kms. He stated that they received secret information at about 7:00pm. He further stated that after seeing the accused, secret informer gave information by waiving his right hand on his head. He further stated that the make of both the cars were wagon R and i10 on which they had reached at the spot. He further stated that they had left their office at about 7:00pm and reached at the spot at about 8:00pm. He further deposed that it was not pre-planned as to who will sit in which car. He admitted that the spot was surrounded with residential area and there was a park in front of the spot. He further stated that many SC No. 71-2020 State Vs. Mohd Mehfooj Alam Page 12 of 44 people were called to join the investigation but none of them joined the investigation and left the spot and that no notice was served to the public persons or neighbours. He further stated that he also requested public persons at Moksh Stock i.e. spot to join the investigation but all refused. He admitted that labours were present at the Moksh stock.
He said that all the proceedings were done at the spot while sitting on the footpath and it took around 5 to 5½ hours to complete all the proceedings. He said that he left the spot at about 1:00am. He said that he was standing at the spot as mentioned in site plan Mark X along with rest of the team which was standing near the spot. He said that HC Vijay left the spot for registration of FIR in his car at around 12:30am. He did not remember at what time HC Vijay returned back at the spot. He said that he left the spot at about 1:10am in his own car. He said that they were all in civil dresses. He said that there was no shop nearby Moksh Stock or around the spot. He admitted that they took the samples from all 30 polly pouches and kept in two small boxes. He admitted that they had mixed the samples taken from 30 polly pouches and thereafter, kept in two small boxes. He said that he did not make any inquiry from bus driver or any passenger in which accused was traveling and thereafter de-boarded from the bus. He said that at first accused was apprehended by him and he took the search of accused at the instance of ACP. He said that ACP came at the spot at around 9:20pm in Govt vehicle and left the spot at around 11:10pm. He said that the recovery was effected in the presence of ACP and that one operator and driver were accompanying the ACP. He said that ACP also requested some public persons to join the investigating but all of them refused to join the investigating. He said that when ACP came at the spot, he, Inspector Ram Kishan, ASI Sanjay, HC Vijay and Ct. Vinod were present and except them, no SC No. 71-2020 State Vs. Mohd Mehfooj Alam Page 13 of 44 other officer was present there. He said that he was having the electronic weighing machine on which he weighed the contraband. He said that they all were having mobile phones containing cameras but no videography was conducted at the spot. He said that he did not know what was recovered from the personal search of accused as the same was conducted by second IO. He said that arrest memo and personal search memo were not prepared in his presence. He said that he left the spot in his car and he was alone at that time. He denied the suggestion that nothing happened in the manner as deposed by him in his examination in chief. He denied the suggestion that no contraband was ever recovered from the accused. He denied the suggestion that they had never visited the spot. He denied the suggestion that all the documents were prepared by him while sitting in the office. He denied the suggestion that no notice u/s 50 of NDPS Act was served to the accused. He denied the suggestion that no secret information was ever received by him qua the accused. He denied the suggestion that nothing happened at the alleged spot or that due to this reason no public witness joined the proceedings despite of their availability. He denied the suggestion that accused was lifted from the Sarai Kale Khan bus stand or that he was carrying his mobile phone which was not seized by police official intentionally. He denied the suggestion that he was deposing falsely.
8. PW-4 ASI Vijay Singh, PW-5 HC Vinod and PW-10 Insp. Ram Kishan deposed on similar lines as PW-2 in their examination in chief. PW-8 also deposed on similar lines as PW-2.
9. During his cross-examination, PW-4 stated that the distance between the office AATS and the spot is about ½ to 2 kms.
SC No. 71-2020 State Vs. Mohd Mehfooj Alam Page 14 of 44He said that ASI Sanjay received secret information at about 7:30pm. He said that he did not remember about the description as well as make of the vehicle, which were used in the raid. He said that they reached at the spot at about 8:00pm. He admitted that the spot was surrounded with residential area and there was no park in front of the spot. He said that 8/10 people were called to join the investigation but none of them joined the investigation and left the spot. He further stated that no notice was served to public persons or neighbours. He further stated that IO did not request any public person from the Stock i.e. spot, to join the investigation. He said that there was no crowd in the Moksh Stock. He said that all the proceedings were done while sitting in the car of IO/SI Roshan Lal. He said that it took around 5 to 6 hours to complete all the proceedings. He said that he went to the police station along with rukka at around 12:30am in one car but he did not remember the number of the same and also did not remember which car he took. He said that after registration of FIR, he returned to the spot at around 2:00am. He said that SI Dharmender was also present there when he returned to the spot. He said that SI Roshan Lal left the spot at around 2:15am. He said that SI Dharmender prepared site plan, arrest memo of accused Mohd. Mejfooj Alam, personal search of accused Mohd. Mejfooj Alam in the presence of SI Roshan Lal. He said that only these documents were prepared in the presence of SI Roshan Lal. He said that accused was arrested at around 2:45am. He admitted that they took the samples from all 30 polly pouches and kept in two small boxes. He also admitted that they had mixed the samples taken from 30 polly pouches and thereafter, kept in two small boxes. He said that no bus ticket was recovered from the possession of the accused. He said that first of all, accused was apprehended by them and IO/SI Roshan Lal took the search of SC No. 71-2020 State Vs. Mohd Mehfooj Alam Page 15 of 44 accused. He said that at that time, ACP was not present. He did not remember the exact time when ACP came at the spot, but said that, he was in Govt vehicle. He said that the recovery was effected in the presence of ACP. He said that one operator and driver were accompanying the ACP. He said that ACP did not request any public person to join the investigation. He further said that when ACP came at the spot, he, Inspector Ram Kishan, SI Roshan Lal, ASI Sanjay, HC Vijay and Ct. Vinod were present and except them, no other officer was present there. He said that IO/SI Roshan Lal was having the weighing machine and it was an electronic machine. He said that IO/SI Roshan Lal weighed the contraband. He could not tell the height of the weighing machine. He said that they all were having mobile phones containing cameras but no video graphy was conducted at the spot. He said that they finally left the spot at around 3:00am / 3:30am and went to DDU hospital with entire team in two vehicles and one vehicle was of SI Dharmender. He said that after medical examination of accused in DDU hospital, they went to the police station Mohan Garden. He did not remember whether they visited the office of ACP on the said date or not. He denied the suggestion that nothing happened in the manner as deposed by him in his chief- examination. He denied the suggestion that no contraband was ever recovered from the accused. He denied the suggestion that they had never visited the spot. He denied the suggestion that all the documents were prepared by him while sitting in the office. He denied the suggestion that no notice u/s 50 of NDPS Act was served to the accused. He denied the suggestion that no secret information was ever received by him qua the accused. He denied the suggestion that nothing happened at the alleged spot or that due to this reason no public witness joined the proceedings despite their availability. He SC No. 71-2020 State Vs. Mohd Mehfooj Alam Page 16 of 44 denied the suggestion that accused was lifted from the Sarai Kale Khan bus stand or that he was carrying his mobile phone which was not seized by police official intentionally. He denied the suggestion that he was deposing falsely.
10. PW-5 has stated in his cross-examination that the distance between the office AATS and the spot is about 3 to 4 kms. He said that ASI Sanjay received secret information at about 7:00pm. He said that he did not remember about the description as well as make of the vehicle, which were used in the raid. He said that they reached at the spot at about 8:00pm. He said that the spot was surrounded by shops and there was no residential area near the spot. He said that there was no park near the spot. He said that 8/10 public persons were called to join the investigation but none of them joined the investigation and left the spot. He said that no notice was served to public persons or neighbours. He said that he did not remember whether IO requested any person from the nearby Moksh Stock. He said that there were 5/6 shops near the spot and all the shops were open. He said that IO requested shopkeepers to join the proceedings but they refused the same. He said that no legal notice was given to them. He said that all the proceedings were done while sitting near bus stand nearby Moksh Stock. He said that it took around 8 to 9 hours to complete all the proceedings. He said that HC Vijay went to the police station along with rukka at around 12:30am on one motorcycle. He said that he did not remember the number of the said motorcycle. He said that after registration of FIR, he returned to the spot at around 1:30am / 2:00am. He said that SI Dharmender came at the spot after HC Vijay. He said that SI Dharmender came to the spot on his car. He said that SI Dharmender prepared site plan, arrest memo of accused Mohd.
SC No. 71-2020 State Vs. Mohd Mehfooj Alam Page 17 of 44Mejfooj Alam, personal search of accused Mohd. Mejfooj Alam and disclosure statement in the presence of SI Roshan Lal. He said that SI Roshan Lal also signed all the above-said documents as witness. He said that accused was arrested at around 2:45am. He said that SI Roshan Lal left the spot after 2:45am. He said that he did not remember whether any bus ticket was recovered from the possession of the accused. He said that first of all, accused was apprehended by them. He said that ACP was present at the time of search of the accused. He said that ACP came at the spot at around 8:45pm in govt. gypsy. He said that he did not remember whether ACP requested any public person to join the investigation. He said that ACP was in uniform. He said that they were not in uniform. He said that ACP left the spot at about 9:30pm / 10:00pm. He said that he was having the weighing machine and it was an electronic machine. He said that IO/SI Roshan Lal weighed the contraband. He said that he could not tell the height of the weighing machine. He said that all were not having any mobile phones. He said that he did not remember the exact time when they finally left the spot and went to the ACP office along with SI Dharmender, accused, HC Vijay including himself. He said that he did not remember the time when they reached at the ACP office. He said that ACP inquired from them. He said that thereafter, SI Dharmender recorded the statement of ACP. He said that then, he along with HC Vijay, SI Dharmender and accused went to the DDU hospital for medical examination. He said that thereafter, he did not remember what happened and his statement was recorded by the IO in AATS office. He denied the suggestion that nothing happened in the manner as deposed by him in his chief-examination. He denied the suggestion that no contraband was ever recovered from the accused. He denied the suggestion that they had never visited the spot. He SC No. 71-2020 State Vs. Mohd Mehfooj Alam Page 18 of 44 denied the suggestion that all the documents were prepared by him while sitting in the office. He denied the suggestion that no notice u/s 50 of NDPS Act was served to the accused. He denied the suggestion that no secret information was ever received by him qua the accused. He denied the suggestion that nothing happened at the alleged spot or that due to this reason no public witness joined the proceedings despite of their availability. He denied the suggestion that accused was lifted from the Sarai Kale Khan bus stand or that he was carrying his mobile phone which was not seized by police official intentionally. He denied the suggestion that he was deposing falsely.
11. During his cross-examination, PW-10 stated that the distance between AATS office and the spot is about 1 km to 1.5 km. He said that they reached at the spot in two private vehicles. He said that they had not produced into writing the details of the vehicle on which they went to the spot. He said that at about 07.50 pm, they left their office and reached at the spot at about 08.00 pm. He said that he was sitting in I-10 car. He said that there was no residential area adjacent to the spot. He admitted that there was park a adjacent to the spot. He said that no notice was served to public persons when they refused to join the investigation. He said that they did not call the owner/employee of the building material Stock to join the investigation. He said that all the proceedings were done at the bus stop. He said that he had left the spot at about 09.30 pm. He said that in his presence, notice u/s 50 NDPS Act and seizure memo were prepared and besides this, no other document was prepared. He said that Rukka was not prepared in his presence. He said that they all were in civil dress. He said that the accused was de-boarding the bus. He said that they did not note down the details of the said bus. He SC No. 71-2020 State Vs. Mohd Mehfooj Alam Page 19 of 44 said that he did not remember the colour of the bus. He said that he was having smart phone but he did not videograph the proceeding. He said that there was traffic on the road. He said that the accused was having green-black colour bag. He said that SI Roshan Lal took the cursory search of the accused. He said that the accused was explained all the legal rights before taking his search. He said that SI Roshan Lal was having field testing kit. He said that SI Roshan Lal was also having the electronic weighing machine. He said that the description of the weighing machine was not mentioned in the charge-sheet. He said that he could not tell the exact measurement of the electronic weighing machine however, said that it was small. He said that he did not remember whether any bus ticket was recovered from the accused. He said that they did not examine the driver/conductor of the said bus. He said that ACP came at the spot at around 9:00pm in Govt vehicle and he did not remember when ACP left the spot. He said that one operator and driver were accompanying the ACP. He said that he did not remember whether ACP requested some public persons to join the investigation. He said that he left the spot by I-10 car. He denied the suggestion that nothing happened in the manner as deposed by him in his chief-examination. He denied the suggestion that no contraband was ever recovered from the accused. He denied the suggestion that they had never visited the spot. He denied the suggestion that all the documents were prepared by him while sitting in the office. He denied the suggestion that no notice u/s 50 of NDPS Act was served to the accused. He denied the suggestion that no secret information was ever received by him qua the accused. He denied the suggestion that nothing happened at the alleged spot or that due to this reason no public witness joined the proceedings despite of their availability. He denied the suggestion that accused was lifted from the Sarai Kale SC No. 71-2020 State Vs. Mohd Mehfooj Alam Page 20 of 44 Khan bus stand or that accused was carrying his mobile phone which was not seized by police official intentionally. He denied the suggestion that he was deposing falsely.
12. PW-3 HC Asha Deep was a formal witness who had brought the relevant record i.e. Register no. 19 and 21 to prove the relevant entry at serial no. 268 with regard to deposit of case property which is Ex.PW-3/A and she stated that as per record, case property was sent to FSL, Rohini on 29.07.2019 vide RC No. 110/21/19 and entry regarding the same is Ex.PW-3/B. She denied the suggestion that entries were falsely made at the instance of IO.
13. PW-6 HC Narender was the concerned MHC(M) at the time when the case property was deposited in the malkhana on 26.07.2019. He stated that on 26.07.2019, he was called by SHO / Inspector Baljeet Singh in his office with register No. 19 and he reached there and Inspector Baljeet Singh deposited three sealed pullandas ie Mark S1, Mark S2 and Mark A, FSL form and copy of seizure memo with him and he made entry in register no. 19. He further stated that the aforesaid pullandas were having seals of RLY and BS and the FSL form was also having the same seals. He said that the relevant entry in register No. 19 was at serial No. 268 and the copy of the same was Ex.PW-3/A (OSR). He said that on the same day, SI Dharmender deposited personal search articles of accused in malkhana and in this regard, he made entry in register no. 19 at serial no. 269, which is Ex.PW6/A (OSR). He stated that on 29.07.2019, two sealed pullandas Mark S1 and S2 pertaining to this case along with FSL form were sent to FSL Rohini through Ct. Manoj Kumar vide RC No.110/21/19 and copy of the same is Ex.PW-3/B (OSR). He said that SC No. 71-2020 State Vs. Mohd Mehfooj Alam Page 21 of 44 after returning from FSL, Ct. Manoj handed over to him the receipt of the FSL and copy of the same is Ex.PW-6/B (OSR). He said that till the case property and FSL form remained in his custody the same were not tampered with. He said that on 20.09.2019, SI Dharmender moved an application (Mark X) before SHO for obtaining original notice u/s 50 of NDPS deposited at malkhana PS Mohan Garden, on which SHO ordered for handing over original notice u/s 50 of NDPS to IO SI Dharmender. He said that thereafter, SI Dharmender received and seized notice u/s 50 of NDPS from malkhana and seizure memo is Ex.PW-6/C. He said that he also made entry in register No. 19 at serial no. 269 which is Ex.PW-6/A (OSR) at point X to X.
14. During his cross-examination, PW-6 stated that the SHO counter-sealed the case property in his presence. He further stated that when the pulandas were handed over to him, only he and Insp. Baljeet was present in his office. He said that there was no written direction of handing over the case property to Ct. Manoj for depositing in FSL. Rohini. He voluntarily stated that SHO gave direction on FSL form for depositing case property at FSL, Rohini. He denied the suggestion that the pulandas were deposited with the tampered seal. He denied the suggestion that entries made in the register no. 19 were false. He denied the suggestion that he was deposing falsely at the instance of IO.
15. PW-7 Insp. Baljeet Singh has stated in his examination in chief that on 25-26/07/2019, he was posted as SHO PS Mohan Garden and on that day, at about 1:20am, HC Vijay Singh, AATS Dwarka along with HC Mahesh Kumar, Duty Officer came to his office at PS Mohan Garden. He said that HC Vijay Singh produced 3 SC No. 71-2020 State Vs. Mohd Mehfooj Alam Page 22 of 44 sealed parcels/ pulandas duly sealed with the seal of 'RLY', FSL form and carbon copies of seizure memo before him. He said that he checked the parcel / pulandas and documents and all the sealed parcels and FSL Form having specimen of seal of 'RLY'. He said that thereafter, he counter sealed all three pulandas and FSL form with seal of BS. He said that thereafter, he inquired from Duty Officer regarding FIR number and mentioned FIR No.244/2019 on all the sealed parcels / pulandas and documents. He said that thereafter, he called MHC(M) CP HC Narender to his office along with register No.
19. He said that he handed over all the sealed parcels, FSL form and carbon copies of seizure memos to MHC(M) for depositing the same in Malkhana. He said that MHC(M) made entry in register No. 19 regarding depositing of case property and same was signed by him and photocopy of relevant page was already Ex.PW-3/A. He said that thereafter, he lodged DD No. 5A, which is Ex.PW7/A, regarding depositing of case property under compliance of Section 55 NDPS Act.
16. During his cross-examination, PW-7 stated that HC Narender and HC Mahesh were present at the time of counter sealing the case property. He further stated that it took about 15 minutes for proceedings u/s 55 of NDPS Act. He further stated that he did not make entry in any document except roznamcha. He denied the suggestion that on the aforesaid date no such parcel, FSL form, pulandas and seizure memo were produced before him. He denied the suggestion that on the said date he did not affix his seal on any such parcel or FSL form. He denied the suggestion that he did not put his signature on the parcel on the given date and time. He denied the suggestion that record regarding the deposit of parcel and FSL with SC No. 71-2020 State Vs. Mohd Mehfooj Alam Page 23 of 44 the MHC(M) had been manipulated. He denied the suggestion that nothing happened in the manner as deposed by him in his examination-in-chief.
17. During his cross-examination, PW-8 ACP Rajender Singh has stated that when he reached at the spot accused was already apprehended by SI Roshan Lal and his raiding team. He said that at that time, accused was carrying a bag which was later searched by SI Roshan Lal on his direction in his presence. He did not remember whether the personal search of accused was conducted in his presence or not. He said that the reply of notice u/s 50 NDPS Act and seizure memo of case property were prepared in his presence by the IO. He said that SI Roshan Lal, the IO and himself all tried to join the public witness in the process of search and seizure but no one came forward and went away with reasonable explanation. He said that samples were taken and prepared by the IO in his presence. He did not remember the make of weighing machine however, said that it was an electronic weighing machine. He said that the measurement of electronic weighing machine was approx 4X6 inches. He did not remember the colour of the electronic weighing machine. He could not tell whether the raiding team members were carrying their mobile phones or not. He said that he did not capture any photo/video from his mobile phone, of the recovery. He said that he remained present at the spot for around 2 hours. He said that 1-2 police officials were in uniform and remaining police officials were in civil dress. He said that when he reached at the spot, three police officials were standing with the accused and remaining were present on different positions. He said that finally, he left the spot between 11.00-12.00 midnight. He denied the suggestion that accused was falsely implicated in the SC No. 71-2020 State Vs. Mohd Mehfooj Alam Page 24 of 44 case or that nothing was recovered from the accused. He denied the suggestion that accused was lifted from Sarai Rohella, Delhi and implicated in the present case in order to save the real culprit.
18. PW-9 Ms. Kavita Goyal, Assistant Director (Chemistry) FSL Rohini, New Delhi stated that on 29.07.2019, two sealed parcels along with forwarding letters were received in the FSL. She stated that the same were marked to her for examination. She stated that the seals on the parcels were found intact and tallied as per forwarding authority specimen seal. She stated that parcel Ex.S1 had dark greenish brown coloured semi-solid material, weight approx. 51.2 gram and parcel Ex.S2 had dark greenish brown coloured semi-solid material, weight approx. 51.0 gram. She stated that the contents thereof were examined by her and after examination, the remnants of the exhibits were sealed with the seal of "K.G.FSL DELHI". She stated that she prepared a detailed report of examination and the same is Ex.PW-9/A. Ex.PW-9/A reveals that the samples were of Charas.
19. During the cross-examination of PW-9 she stated that she could not say that at present, how many pieces were in S1 and S2. She voluntarily stated that they took the representative sample from each piece. She admitted that she had nowhere mentioned in her report i.e. Ex.PW-9/A about any pieces. She stated that she had not brought any document to show that representative samples were taken from each piece. She admitted that it was also not mentioned in the opening sheet about any pieces. She denied the suggestion that samples were not taken separately from the entire exhibits.
20. PW-11 SI Dharmender has stated in his examination in SC No. 71-2020 State Vs. Mohd Mehfooj Alam Page 25 of 44 chief that on 26.07.2019 he was posted as SI at AATS Dwarka. He said that he received DD No. 2 marked as Mark X, from duty officer as the further investigation of the case was assigned to him. He said that he reached the spot and found SI Roshan Lal alongwith other police staff and accused Mehfooz Alam. He said that SI Roshan Lal handed over to him the custody of accused Mehfooz Alam and all documents. He said that thereafter, he prepared site plan at the instance of SI Roshan Lal, which is Ex PW 2/E. He said that in the meantime, HC Vijay reached at the spot and handed over to him copy of FIR and original tehrir. He said that thereafter, he recorded the statement of SI Roshan Lal and SI Roshan Lal left the spot. He said that he interrogated the accused Mehfooz Alam and after interrogation he was arrested vide arrest memo Ex PW 4/A. He said that he took the personal search of accused vide memo Ex PW 4/B. He said that during personal search, original notice u/s 50 NDPS Act and cash of Rs. 1640/- were recovered from accused. He said that thereafter, they returned at the office of AATS where they recorded the disclosure statement of accused Mehfooz Alam already Ex PW 4/C. He said that thereafter, he sent the report u/s 57 NDPS Act to ACP and the same was forwarded by Inspector AATS Sh. Ram Kishan. Report u/s 57 NDPS Act is Ex PW 8/A. He said that thereafter, accused was produced in the court and PC remand of accused was obtained to search for the source of the contraband. He said that alongwith accused he visited Mumbai in search of person who was the source of contraband i.e. Austin Cardoz but Austin was not found there, as his whereabouts were not known to accused Mehfooz Alam. He said that thereafter, they returned to Delhi. He said that on 29.07.2019, samples were sent to FSL Rohini through Ct. Manoj vide RC No. 110/21/19, Ex PW 3/B and after depositing the same Ct. Manoj handed over the SC No. 71-2020 State Vs. Mohd Mehfooj Alam Page 26 of 44 acknowledgment to MHC(M) vide Ex PW 6/B. He said that thereafter, he recorded statement of MHC(M). He said that thereafter, he alongwith other police staff and accused Mohd. Mehfooz Alam visited Kullu, Himachal Pradesh in search of PK from whom accused had received the contraband. He said that thereafter, PK was apprehended at the instance of accused Mehfooz Alam from near Raju Dhaba, Aut District Mandi, H.P. He said that thereafter, he informed the accused about his legal right that his search could be taken in the presence of any Magistrate or Gazetted officer and if accused desired they could be called at the spot. He said that the accused Pramod Kumar was also apprised before his that he could take search of police party and police vehicles. He said that he prepared notice u/s 50 NDPS Act in duplicate with the help of carbon. He said that the notice u/s 50 NDPS Act was given to accused Pramod in original and after going through the contents of the same, accused had given his reply in his handwriting that he did not carry any narcotic substance, therefore, he did not want himself to be searched in front of Gazetted Officer or Magistrate. He said that carbon copy of notice u/s 50 NDPS Act is Ex PW 11/A. He said that reply of accused Pramod is Ex PW 11/B. He said that he also served a notice u/s 67 NDPS Act to the accused Pramod He said that thereafter, he took the search of accused Pramod @ PK but nothing incriminating was recovered from his search and thereafter, he arrested accused Pramod Kumar vide arrest memo Ex PW 11/C. He said that personal search of accused Pramod Kumar @ PK was conducted vide memo Ex PW 11/D. He said that during his personal search, notice u/s 50 NDPS Act, original notice u/s 67 NDPS Act and cash of Rs. 70,000/- were recovered. He said that thereafter, he recorded the disclosure statement of accused Pramod Kumar vide memo Ex PW 11/E. He said that thereafter, they took the accused to SC No. 71-2020 State Vs. Mohd Mehfooj Alam Page 27 of 44 Delhi and produced before the court and accused was sent to J/C. He said that on 05.08.2019, he sent intimation u/s 57 NDPS Act to ACP Operations and same was forwarded by Inspector Incharge AATS. He said that intimation u/s 57 NDPS Act in regard to accused Pramod @ PK is Ex PW 8/B. He said that thereafter, search of receiver of contraband Austin Cardoz was made in Mumbai but he was not found at the residence and after taking non bailable warrants, he was declared as PO by the court. He said that thereafter, on 20.09.2019, he moved an application to SHO Mohan Garden with request for releasing original copy of notice u/s 50 NDPS Act deposited in the malkhana with personal search articles of accused Mohd. Mehfooz Alam and Pramod Kumar, which is Ex PW 11/F. He said that thereafter, both original notices u/s 50 NDPS Act served to accused Mohd. Mehfooz Alam and accused Pramod Kumar were seized vide memo Ex PW 11/G. He said that original notice u/s 50 NDPS Act of accused Mohd. Mehfooz Alam is Ex PW 2/I and original notice u/s 50 NDPS Act of accused Pramod Kumar is Ex PW 11/H. He said that on the same day, he also moved an application for returning original reports u/s 57 NDPS Act from the office of ACP operations and application is Ex PW 11/I. He said that thereafter, on receiving of FSL result, he prepared the charge-sheet and sent the same to Court.
21. During the cross-examination of PW-11 he stated that the distance between the office of AATS and the spot is approx. 3-4 km. He said that he reached at the spot in his personal car. He said that the raiding team reached at the spot in two vehicles i.e. one white colour wagon-R car belonging to SI Roshan Lal and another car was white colour I-10 car. He said that he did not remember registration numbers of abovestated cars. He said that he left his office at about SC No. 71-2020 State Vs. Mohd Mehfooj Alam Page 28 of 44 12:45 A.M on intervening night of 25/26.07.2019. He said that he reached the spot at about 12:50 A.M., and at that time, no public person was passing through the road due late night hour. He said that the residential area was situated 200 m far from the spot. He said that there was one park situated near the spot. He said that there was one Stock in the name of Moksh Stocks and no one was present there at that time. He said that Documents were prepared by sitting outside the Moksh Stocks. He said that SI Roshan Lal left the spot at about 1:30 A.M. and they all police officials were in civil dress. He said that he did not know whether the police officials had smart phones at that time or not. He said that when he reached at the spot, SI Roshan Lal alongwith ASI Sanjay, Ct. Vinod were present there. He said that after some time, HC Vijay also reached the spot from P.S. He said that he had not seen the bag which was recovered from accused Mehfooz Alam as same was already sealed by the first IO and sent to the P.S with case property. He said that the testing kit was available at the spot when he reached there. He said that the testing kit contained few solutions. He said that the weighing machine was also lying at the spot when he reached there. He said that the colour of weighing machine was steel colour. He said that he could not tell the exact size of the weighing machine. He said that he could not tell the time when ACP visited at the spot as ACP had already left the spot before he reached there. He said that finally they left the spot at about 3:00 A.M. He said that no bus ticket was recovered from the personal search of accused Mehfooz Alam. He voluntarily stated that search of accused Mohd. Mehfooz Alam was not done in his presence as he was the second IO in the present case. He denied the suggestion that nothing happened in the manner as deposed by him in his chief examination. He denied the suggestion that no contraband was ever SC No. 71-2020 State Vs. Mohd Mehfooj Alam Page 29 of 44 recovered from the accused. He denied the suggestion that they had never visited the spot. He denied the suggestion that all the documents were prepared by him while sitting in the office. He denied the suggestion that no notice u/s 50 NDPS Act was served to the accused. He denied the suggestion that no secret information was ever received by him qua the accused. He denied the suggestion that nothing happened at the alleged spot or that due to this reason no public witness joined the proceedings despite of their availability. He denied the suggestion that accused was lifted from the Sarai Kale Khan bus stand or that accused was carrying his mobile phone which was not seized by the police official intentionally. He denied the suggestion that he was deposing falsely.
22. PW-12 HC Manoj Kumar stated in his examination in chief that on 25.07.2019, he was posted at AATS Dwarka as Duty Officer. He said that on that day, his duty hours were from 08.00 am to 08.00 pm and on that day, at around 07.30pm, SI Roshan Lal received a secret information and same was registered by SI Roshan Lal vide DD No. 17 AATS Dwarka dt. 25.07.2019 which is Ex.PW- 2/A. He said that on that day, at around 07.30 pm, Insp. Ram Kishan alongwith other AATS Staff left the office to conduct the raid and the departure entry in this regard was made vide DD No.18 AATS Dwarka dt. 25.07.2019 which is Ex.PW-2/B. He said that on 29.07.2019, he had joined the investigation of the present case and that he was entrusted with two sealed pulandas i.e. S1 and S2 sealed with the seal of RLY and counter-seal of BS with FSL form to deposit the same with FSL Rohini vide RC No. 110/21/19 which is Ex.PW-3/B. He said that during his possession, the seal of the pulandas were properly intact and no tampering was done. He said that he obtained the SC No. 71-2020 State Vs. Mohd Mehfooj Alam Page 30 of 44 receiving from FSL Rohini which is Ex.PW-6/B. He said that carbon copy of RC No.110/21/19 dt. 29.07.2019 and acknowledgment of the receipt/acceptance were handed over to MHC(M) CP, PS Mohan Garden and photocopy of the aforementioned RC and acknowledgment of receipt were handed over to the IO.
23. During the cross-examination of PW-12 he stated that the pulandas were of white colour. He said that he did not remember the type and colour of the tape. He denied the suggestion that aforesaid DD No.17 and 18 were ante-dated and ante-time. He denied the sug- gestion that seal of the pulandas were not properly intact and it was tampered with during his possession. He denied the suggestion that he was deposing falsely.
24. PW-13 Rtd. SI Krishan Kumar stated in his examination in chief that on 26.07.2019, he was posted with AATS Dwarka, Dist. New Delhi as SI and on that day, he was working as Duty Officer and his duty hours was from 08.00 pm to 08.00 am. He said that on that day, at around 12.40 am, he received information from SI Roshan Lal regarding arrest of accused Mohd. Mehfooj Alam alongwith illicit Charas. He said that SI Roshan Lal requested for sending another IO at the spot for further proceeding. He said that the said information was registered vide DD No.02 dt. 26.07.2019, AATS DWD New Delhi which is Ex.PW-13/A. He said that further, investigation of this case was marked to SI Dharmender.
25. During the cross-examination of PW-13 he denied the suggestion that aforesaid DD was ante-dated and ante-time.
SC No. 71-2020 State Vs. Mohd Mehfooj Alam Page 31 of 4426. PW-14 W/HC Kavita during her examination in chief produced the original DD register pertaining to Diary no. 811 dt. 25.07.2019, 812 and 813 both dt. 26.07.2019 and 850 dt. 05.08.2019 pertaining to DD register of ACP Operation, Dwarka. The copy of DD No. 811 dt. 25.07.2019 regarding secret information by SI Roshan Lal is Ex.PW-14/A. The entry pertaining to DD No. 812 dt. 26.07.2019 regarding intimation u/s 57 NDPS Act in case FIR NO. 299/2021 dt. 26.07.2019 by SI Roshan Lal, State Vs. Mohd. Mehfooj Alam is Ex.PW-14/B. The DD entry No. 813 dt. 26.07.2019 regarding intimation u/s 57 NDPS Act pertaining to this case by SI Dharmender is Ex.PW-14/C and the copy of DD no. 850 dt. 05.08.2019 pertaining to intimation u/s 57 NDPS Act pertaining to this case by SI Roshan Lal is Ex.PW-14/D.
27. During the cross-examination of PW-14 she admitted that the aforesaid DD entries were not reduced into writing by concerned DD writers and she had brought the original record of the same on being summoned by the Court.
STATEMENT OF ACCUSED RECORDED U/S 313 CR.P.C.:
28. On 17.02.2024, all the incriminating evidence was put to the accused for the purpose of recording his statement u/s 313 Cr.P.C. He replied that he was innocent and had been falsely implicated in the present case. During the recording of the statement, the accused stated that he did not wish to lead defence evidence and the matter was posted for final arguments.
FINAL ARGUMENTS:
SC No. 71-2020 State Vs. Mohd Mehfooj Alam Page 32 of 4429. Final arguments in the matter were heard on 21.02.2024. Ld. LAC for the accused had stated that accused should be acquitted in the matter as there were contradictions in the statements of prosecution witnesses and that despite availability of independent witnesses, no public witness was included in the list of witnesses. It was further stated that even though accused was apprehended after he got down from a bus, no bus ticket was recovered from him. It was further submitted that proper sampling was not done from the contraband allegedly recovered from the accused and that mixed samples were sent to FSL for examination.
30. Ld. APP had argued that evidence of prosecution witnesses was consistent and recovery made from the accused was as per procedure. It was submitted that no defence has come forward from the accused to discharge the reverse burden of proof placed upon him.
REASONS FOR DECISION AND DECISION:
31. I have considered the rival submissions and gone through the documents and evidence available on record.
32. Before proceeding to discuss the merits of the case, it is important to understand the legal provisions. Section 35 of NDPS Act presumes culpable mental state of the accused i.e. reverse burden of proof. It provides that the Court shall presume the culpable mental state of the accused but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged. Further, Section 54 of the NDPS Act provides that the Court SC No. 71-2020 State Vs. Mohd Mehfooj Alam Page 33 of 44 shall presume unless the contrary is proved, that the accused has committed an offence under the Act for which he has been charged in case he is found in possession of the substance as mentioned in the Section for which he has no satisfactory explanation 1. It is settled legal proposition that the procedure provided under Chapter V of the NDPS Act has to be scrupulously followed for the Court to raise such presumption. The procedure provides that when the Officer u/s 41 NDPS Act receives secret information, he has to inform the same to his superior Officer within 72 hours. In case, any arrest or seizure is done, the Officer mentioned u/s 42 NDPS Act has to forward the same to the IO without unnecessary delay. The Officer mentioned u/s 42 NDPS Act is the complainant who arrests the accused and does recoveries himself or through the raiding party. The complainant is the witness who claims recovery of prohibited substances from the possession of the accused and these claims are verified and substantiated by the IO during investigation. It is further mandatory that the IO has to take measures for disposal of the alleged substances as per Section 52(4) of the Act. Further, the person arrested has to be produced before the Magistrate and the contraband seized is required to be dealt with by the Officer u/s 53 NDPS Act or the SHO in accordance with Section 52A of NDPS Act. For raising the presumption u/s 54 of the Act it must be first establish that recovery was made from the accused and the procedure provided under the NDPS Act followed thoroughly without fail. It is further settled law that for attracting the provision of Section 54 of NDPS Act, it is essential for the prosecution to establish the element of possession of contraband by the accused beyond reasonable doubt for the burden to shift to the accused to prove his innocence 2. This burden on the 1 Balvinder Singh (Binda) Vs. NCB AIR 2023 SC 4684 2 Balvinder Singh (Binda) Vs. NCB, AIR 2023 SC 4684; Noor Aga Vs. State of Punjab, (2008) 16 SCC 417 SC No. 71-2020 State Vs. Mohd Mehfooj Alam Page 34 of 44 prosecution is a heavy burden. To decide whether the burden has been discharged or not by the prosecution, it is relevant to peruse the record and evidence and consider the submissions made by the parties.
33. The record of the present case reveals that the accused stands charged for the possession of commercial quantity of contraband i.e 3 Kg and 100 Grams of Charas found in 30 poly pouches which were found in 3 bundles wrapped with brown tape (each bundle having 10 transparent poly pouches) further found in one black colour polythene which was inside a black-green colour bag being carried by the accused. All the prosecution witnesses of the raiding party have deposed similarly with regard to the abovesaid recovery from the accused. However, since Ld. LAC had stated that accused should be acquitted on the ground of the submissions made by him, the same have been discussed as under:
A. CONTRADICTIONS IN THE TESTIMONIES OF PROSECUTION WITNESSES:
a. Distance between the AATS office and spot: PW-2, PW-5 and PW-11 have stated that the distance between the AATS office and spot was about 3-4 kms. PW-4 has stated that the distance between the AATS office and spot was about 0.5-2 kms. PW-10 has stated that the distance between the AATS office and spot was about 1-1.5 kms.
b. Time of receiving of secret information: PW-2 and PW-5 have stated that secret information was received at 07.00 pm. PW-4 has stated that secret information was received by ASI Sanjay at about SC No. 71-2020 State Vs. Mohd Mehfooj Alam Page 35 of 44 07.30 pm. c. Time of Departure from AATS office and time of reaching at the spot: PW-2 has stated that they left the office at 07.40 pm and reached the spot at about 08.00 pm. PW-4 and PW-5 have stated that they reached at the spot at about 08.00 pm. PW-10 has stated in his examination in chief that they started from the office of AATS at about 07.40 pm but has stated in his cross-examination that at about 07.50 pm they left the office. PW-10 has stated that they reached the spot at about 08.00 pm. d. Description of the spot: PW-2 has stated that the spot was surrounded with residential area and there was a park in front of the spot. PW-4 has stated that the spot was surrounded with residential area and there was no park in front of the spot. PW-5 has stated that the spot was surrounded by shops and there was no residential area near the spot and further that there was no park near the spot. PW- 10 has stated that there was no residential area adjacent to the spot but stated that there was a park adjacent to the spot. PW-11 has stated that the residential area was situated around 200 mtr away from the spot and there was one park near the spot.
e. Place at which proceedings were done: PW-2 has stated that all the proceedings were done at the spot while sitting at the footpath. PW-4 has stated that all the proceedings were done at the spot while sitting in the car of PW-2. PW-10 has stated that all the proceedings were done at the bus stop.
f. Time taken to complete the proceedings: PW-2 has stated that it SC No. 71-2020 State Vs. Mohd Mehfooj Alam Page 36 of 44 took around 5-5.5 hours to complete all the proceedings. PW-4 has stated that it took around 5-6 hours to complete all the proceedings and they left the spot at around 03-03.30 am. PW-5 has stated that it took around 8-9 hours to complete all the proceedings.
g. Time when PW-2 left the spot: PW-2 has stated that he left the spot at about 01.10 am. PW-4 has stated that PW-2 left the spot at about 02.15 am. PW-5 has stated that PW-2 left the spot after 02.45 am. PW-11 has stated that PW-2 left the spot at around 01.30 am.
h. Time when PW-4 came back to the spot after registration of FIR and vehicle used by PW-4: PW-2 has stated that PW-4 had left the spot for registration of FIR in his car at around 12.30 am but he did not remember at what time PW-4 came back to the spot. PW-4 has stated that he had left the spot for registration of FIR in one car at around 12.30 am and returned back to the spot at around 02.00 am. PW-5 has stated that PW-4 had left the spot for registration of FIR at around 12.30 am on one motorcycle and returned back to the spot at around 1.30-02.00 am.
i. Apparel of the police/raiding party: PW-2 has stated that they were all in civil dress. PW-5 has stated that PW-8 was in uniform but they all were not in uniform. PW-8 has stated that 1-2 officials were in uniform and remaining police officials were in civil dress. PW-10 stated that they were all in civil dress. PW-11 has stated that they were all in civil dress.
j. Time when PW-8/ACP reached at the spot and left the spot:
SC No. 71-2020 State Vs. Mohd Mehfooj Alam Page 37 of 44PW-2 has stated that PW-8 reached at the spot at around 09.20 pm and left the spot at around 11.10 pm. PW-5 has stated that PW-8 came at the spot at around 08.45 am and left the spot at about 09.30-10.00 pm. PW-8 stated that he left the spot between 11.00 pm-12.00 mid night. PW-10 stated that the PW-8 reached the spot at about 09.00 pm. k. Documents prepared by IO/PW-11 signed by PW-2: PW-2 has stated that the arrest memo and personal search memo were not prepared in his presence. PW-4 has stated that PW-11 prepared site plan, arrest memo of accused and personal search of accused in presence of PW-2. PW-5 has stated that PW-11 prepared site plan, arrest memo of accused, personal search of accused and disclosure statement in presence of PW-2 and PW-2 signed all the documents.
PW-11 has stated in his examination in chief that after PW-4 reached at the spot and handed over copy of FIR to him, he recorded statement of PW-2 who thereafter left the spot. PW-11 has stated that after that he interrogated the accused, arrested him and took his personal search. PW-11 has further stated that thereafter, they returned to the office of AATS where he recorded disclosure statement of accused and thereafter, he sent report u/s 57 NDPS Act to ACP which was forwarded by PW-10.
l. Persons present at the PS when case property was handed over to MHC(M) on 26.07.2019: PW-4 has stated that he handed over rukka to the duty officer and sealed pulandas alongwith FSL form and carbon copy of seizure memo to SHO PS Mohan Garden/PW-7. PW-6 has stated that no one was present in the office of PW-7 except him and PW-7 when pulandas were handed SC No. 71-2020 State Vs. Mohd Mehfooj Alam Page 38 of 44 over to him. PW-7 has stated that PW-4 produced the three sealed pulandas, FSL form and Carbon copies of seizure memo before him at about 01.20 am after which, he made inquiry from PW-1 regarding FIR number and mentioned the same on all the sealed pulandas and documents and he put his counter-seal of 'BS' on all the three pulandas and FSL form. He said that thereafter, he called MHC(M)/PW-6 to his office and handed over all the sealed parcels, FSL form and carbon copies of seizure memo to PW-6 for depositing the same in malkhana. During his cross-examination PW-7 stated that PW-6 and PW-1 were present at the time of counter sealing the case property.
m. Carrying of mobile phones: PW-2 and PW-4 have stated that they were all carrying mobile phones having cameras. PW-5 has stated that they all were not carrying mobile phones.
n. Request by ACP for public persons to join investigation: PW- 2 has stated that ACP requested some public persons to join the investigation but all of them refused. PW-4 has stated that ACP did not request any public person to join investigation. PW-8 has stated that he asked public witnesses to join the investigation but no one came forward.
Opinion of the Court: There is no denying the fact that there are contradictions between the testimonies of the police witnesses. However, the contradictions are minor in nature and the testimony of the witnesses are more or less consistent with each other. The contradictions regarding the exact time of receipt of secret information, leaving from the AATS office, reaching at the spot, SC No. 71-2020 State Vs. Mohd Mehfooj Alam Page 39 of 44 departure of police witnesses from the spot and other contradictions as stated above are not such that they are completely inconsistent with each other. Minor variations, if more or less consistent, do not go to the root of the case, in case, the recovery, seizure and sampling are done as per procedure. In the case of Tahir Vs. State (Delhi)3, it has been held that conviction can be recorded on the sole testimony of police officials without corroboration from a public witness, if it inspires confidence. In the present case, even though no public witness has been examined, the testimony of police witnesses is sufficient as their statements more or less corroborate with each other. Minor variations in time and place do not matter where procedure followed is proper.
B. PROCEDURE OF RECOVERY, SEIZURE AND SAMPLING:
The present case started with the receipt of secret information on 25.07.2019 at around 07.00 pm which was reduced into writing by PW-2 vide Ex.PW-2/A after getting the requisite permission from superior Officer, for the purpose of proceedings u/s 42 NDPS Act.
Thereafter, on the direction of PW-10 raiding party was constituted by PW-2 which proceeded to the spot as mentioned by the secret informer and they reached there at about 08.00 pm. The accused was apprehended by PW-2 with the help of the raiding party on the pointing out of the secret informer, after he deboarded from the bus. Information about his apprehension was given by PW-10 to PW-8, being the superior Officer, who after receipt of the information reached at the spot. Accused was apprised of his right to be searched in front of Magistrate and Gazetted Officer in compliance of Section 50 NDPS Act which he denied, stating that he had Charas in the bag he was carrying. Thereafter, search of the black-green bag was taken 3 AIR 1996 SC 3079 SC No. 71-2020 State Vs. Mohd Mehfooj Alam Page 40 of 44 by PW-2 in the presence of PW-8, from which the contraband/Charas was recovered. On the search of the said bag, one black colour polythene containing three bundles wrapped with brown tape were found inside the bag. The bundles were opened and each bundle had 10 transparent polly pouches which were counted and found to be 30 polly pouches and all the 30 polly pouches were containing black sticky, malleable, foul smelly substance. Thereafter, all 30 polly pouches were tested with the field test kit and found to be containing charas. All 30 polly pouches were weighed with the electronic weighing machine and found to be 3 Kg 100 grams. Samples were taken out from each of 30 polly pouches in small quantity and two samples of 50 grams each were prepared in two plastic boxes which were wrapped with white cloth. Two pulandas were prepared and marked as mark S1 and S2. All the 30 polly pouches of charas along with empty bundles were put inside the same black colour polythene and kept in the same green colour bag. The green black bag was put inside a white plastic katta and a pulanda was prepared which was marked as Mark A. All the three sealed pulandas were sealed with the seal of RLY. FSL form was filled up and seal of RLY was affixed on it. Thereafter, all three pulandas were seized vide memo Ex.PW2/C and sent to the PS through Ct. Vijay alongwith the rukka. FIR was registered and case was marked to PW-11 for investigation. Hence, in so far as the recovery and seizure of Charas is concerned, all the witnesses of the raiding party have spoken consistently and in one voice about the same. Ld. Defence Counsel had argued that the samples were not taken from all the 30 poly pouches for the purpose of sending 30 samples to FSL for examination which is in contravention of standard procedure laid down vide Standing Instructions 1/88 which is mandatory in nature. Ld. APP had argued SC No. 71-2020 State Vs. Mohd Mehfooj Alam Page 41 of 44 that the said procedure is only directory in nature and in any case samples were tested from all the 30 poly pouches in the field testing kit and the same were found to contain Charas. Ld. APP further stated that the samples were taken from all 30 poly pouches and 2 small boxes were prepared for sending to FSL and as per report of FSL, the substance was confirmed to be Charas (cannabis) as per FSL report Ex.PW-9/A.
34. Considering the recovery made and samples sent to FSL, it is the opinion of the Court that even though the samples were mixed and kept in two small boxes, the report of FSL confirmed it to be Charas (cannabis) which is a Narcotic and Psychotropic substance under the NDPS Act. Hence, in the opinion of the Court, the search, seizure and recovery of contraband was done as per procedure laid down in the NDPS Act4. However, even though the samples sent to FSL were proper, yet it is still to be seen whether the sampling was done as per law i.e. whether the provisions u/s 52 and 52A of NDPS Act were properly followed. Section 52 provides that the accused has to be informed about the grounds of arrest and the property seized has to be sent to the Magistrate by whom warrants were issued/Officer Incharge of nearest police station/Officer empowered u/s 53 NDPS Act, as the case may be. In the present case, the accused was informed about his apprehension and arrest by the Officer concerned. Further, the seized property was also immediately sent to PW-7 who was Incharge of the nearest police station. Section 52A provides for the procedure and manner of seizing, preparing the inventory of the seized material, forwarding he seized material and getting inventory certified by the Magistrate concerned. It is further provided that the inventory or the photographs of the seized substance and any list of 4 Chand Singh Vs. Narcotics Control Bureau, 2016(1) ADR 168 SC No. 71-2020 State Vs. Mohd Mehfooj Alam Page 42 of 44 samples in connection thereof on being certified by the Magistrate shall be recognized as primary evidence in connection with the offence alleged under the NDPS Act. Further, when such seized contraband is forwarded to the Officer Incharge of the police station, as in the present case, the Officer has to prepare its inventory with details and description of the seized substance like quality, quantity, mode of packing, number and identifying marks and then make an application to any Magistrate for the purpose of certifying its correctness and for allowing to draw representative samples of such substances in the presence of Magistrate and to certify the correctness of the list of samples so drawn. In the present case, no evidence has been brought on record that the procedure described under Section 52A was followed while making the seizure and drawing sample such as preparing the inventory and getting it certified by the Magistrate. It has been held in the case of Yusuf @ Asif Vs. State5 that the mere fact that samples were drawn in presence of the Gazetted Officer is not sufficient compliance of the mandate of Section 52A(2) of NDPS Act. It has been further held in the said case that 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 therefrom would not be a valid piece of primary evidence in the trial and that once there is no primary evidence available, the trial as a whole stands vitiated. In the case of Yusuf @ Asif Vs. State (Supra), the accused was apprehended on 28.03.2000 by the NCB and the procedure u/s 52A was not followed. It is obvious that in the present case also the procedure u/s 52A has not been followed and the application for drawing of samples was never filed 5 2023 SCC Online SC 1328 SC No. 71-2020 State Vs. Mohd Mehfooj Alam Page 43 of 44 before the Magistrate. Thus, relying on the Judgment of Yusuf @ Asif Vs. State (Supra) it is obvious that there is no primary evidence available on record and the same vitiates the trial.
35. Hence, considering the overall facts and circumstances of the present case and given the above observations, accused is acquitted of the offence punishable under Section 20 (b) (ii) (C)/29 of the NDPS Act.
36. Case property is confiscated to the State and in case no appeal is filed within the prescribed time, the same may be disposed of, as per rules. File be consigned to Record Room, after due compliance.
Pronounced in the open court (BHAVNA KALIA)
today i.e 12th March, 2024 Special Judge (NDPS)-01: SW District
Dwarka Courts: New Delhi
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