Delhi District Court
State vs Jabiuulah Rahimi on 28 September, 2024
IN THE COURT OF ALOK SHUKLA, ADDITIONAL SESSION
JUDGE-02, SPECIAL JUDGE (NARCOTIC DRUGS And
PSYCHOTROPIC SUBSTANCES), EAST DISTRICT,
KARKARDOOMA COURT, DELHI
CNR No. DLET01-010684-2019
Session Case No. 3881/2019
State vs. Jabiuulah Rahimi & Masjidi Firoz
First Information Report No. 224/2019
Police Station Crime Branch
Under Section 21/29 Narcotic Drugs And Psychotropic
Substances Act
In the matter of: -
STATE
Versus
1. Jabiuulah Rahimi @ Zabiuulah Rahimi
Son of Mohd. Didar,
Present resident of Gali no. 9, Afgani Chowk,
Jama Masjid, Wazirabad, Delhi.
Permanent Resident of
Village Badar Khel, Tehsil Kafisa,
District Tagaf, Afghanistan.
2. Masjidi Firoz
Son of Mohd. Saleem,
Present resident of 161, J Extension, near Jain-
Mandir, Laxmi Nagar, Delhi 110092.
Permanent Resident of
Koti Isangi, District Rakham Meena,
Police Station no. 8, Kabul, Afghanistan.
Date of Institution : 23.12.2019
Date of reserve for judgment : 13.09.2024
Date of decision : 28.09.2024
JUDGMENT
1. The present case arises out of the FIR No. 224/2019.
Accused persons namely Jabiuulah Rahimi and Masjidi Firoz are charged for the offences under Section 21(c) and Page no. 1 of 46 section 29 of the NDPS Act read with Section 21(c) of the NDPS Act.
2. Brief Facts of the case are that on 01/08/2019, secret information was received by Sub Inspector, Vishan Kumar that one Afgani resident namely Jabiuulah Rahimi alongwith another Afgani resident namely Masjidi Firoz, who is residing at Laxmi Nagar as a refugee are indulged in supply of Heroin in Delhi and on that day they would come to Pusta Road, near Geeta Colony Bus Stand, Delhi, between 04:00 PM to 04:30 PM for supplying Heroin to someone. Information was conveyed to Inspector and the then ACP/Narcotics Cell, Crime Branch and reduced into writing in daily diary. The copy of DD entry was forwarded to immediate superior officer for compliance of Section 42 NDPS Act. A raiding team led by SI Vishan Kumar was constituted and trap was laid at the place of information. As per prosecution version, SI Vishan Kumar asked the public persons to join the raiding party, but none of them agreed and left without disclosing their names and adresses. At the instance of secret informer, two persons namely Jabiuulah Rahimi S/o Mohd. Didar R/o Badar Khel, Tehsil- Kafisa, Distt Tagaf, Afganistan, 40 yrs & Masjidi Firoz S/o Mohd. Salim R/o H.No. 161, J-Extension, Gali No. 10, Near Jain Mandir Laxmi Nagar, Delhi Age 35 (Koti Isangi, Distt. Rakham Meena, Police Station 8, Kabul Afghanistan) were apprehended. One maroon colour bag was found in the possession of Jabiuulah Rahimi and the contents of the same were checked using field testing Kit, weighed through weighing machine and was found containing 300 grams of Heroin. One green colour polythene was found in possession of Masjidi Firoz, which was checked through Page no. 2 of 46 field test Kit, weighed through weighing machine and was found containing 300 grams of Heroin. Four samples were drawn from the contraband and the contraband was seized through seizure memo. After following due procedure and compliance of mandatory provisions the present case was registered and further investigation was taken up. During investigation, accused persons namely Jabiuulah Rahimi & Masjidi Firoz were arrested in the case and Passport (No. 02156437) of accused Jabiuulah/Zabiullah Rahimi, the Afghan Citizen, was seized. As per his Visa details, he came to India on 22/07/2019. Identity card of UNHCR having reference No. 513-93C02628 was recovered from personal search of accused Masjidi Firoz and as per the documents he has been residing in India as a refugee from Afghanistan. Police Custody remand of both the accused was obtained and efforts were made to search the 'source' of contraband but source could not be traced. As per prosecution, all the mandatory provisions under section 42, 50, 55, 57 of NDPS Act were duly complied with. Statement of witnesses were recorded, sample seized were sent to FSL, Rohini Delhi. The report of the FSL was received and the recovered contraband was found to be "Heroin" as per the report of FSL. After completion of the investigation, the charge sheet was filed under Section 21/29 of the Narcotic Drugs And Psychotropic Substances Act.
CHARGES AGAINST THE ACCUSED
3. By order dated 24.03.2021, charge for the offences under Sections 21(c) of the Narcotic Drugs and Psychotropic Substances Act and under Section 29 read with Section 21(c) of the Narcotic Drugs and Psychotropic Substances Page no. 3 of 46 Act were framed against accused persons to which they pleaded not guilty and claimed trial.
PROSECUTION WITNESSES
4. Twelve prosecution witnesses were examined during the course of trial. Accused persons admitted following documents under Section 294 of the Code of Criminal Procedure:-
(i) Statement of Sh. Urfi Siddiqui, Manager/ Owner, Hotel Rainbow Haldwani regarding seizure memo of visiting register and Form C Ex. A1 (colly).
(ii) Statement of Mohd. Saleem regarding seizure memo dated 08.11.2019 Ex. A2(colly).
(iii) FSL report Ex. A3,
(iv) Section officer letters dated 19.09.2019 and 16.09.2019 Ex. A 4(colly).
(v) Letter issued by DCP Crime dated 09.09.2019 and letter dated 18.09.2019 issued by Assistant Director Ex.A5(colly) on 27.07.2024.
(vi) Statement of Inspector Satender Sangwan recorded under Section 161 Code of Criminal Procedure Ex.AX1 on 24.08.2024.
5. PW1 Retired SI Rama Avtar deposed that on 01.08.2019, he was posted at PS Crime Branch as Sub Inspector and was working as Duty Officer from 8.00 pm of 01.08.2019 to 8.00 am of 02.08.2019. He further deposed that at about 11.27 pm, HC Ramesh had brought the rukka sent by SI Vishan Kumar, contents of rukka were dictated by him to the computer operator and the FIR No. 224/2019 was registered. Computerized copy of FIR was obtained and further investigation was assigned to Sub Inspector Rakesh Duhan. He further deposed that he had handed over the Page no. 4 of 46 copy of FIR Ex. PW1/A and the original rukka to HC Ramesh to be handed over to SI Rakesh Duhan and he had made endorsement on the rukka Ex. PW1/B.
6. PW2 Head Constable Sanjay Kumar deposed that on 01.08.2019, he was posted at Narcotic Cell Crime Branch, Old Kotwali Building, Delhi and on that day at about 3.35 pm, SI Vishan Kumar called him in his office, where HC Ramesh Kumar, No. 146/Crime and HC Ramesh, No.373/Crime and secret informer were already present. SI Vishan Kumar told them about the secret information that two Afgani Nationals namely Jabiuulah Rahimi and Masjidi Firoz would come near Bus stand, Geeta Colony, Pusta Road going towards Shakarpur between 4.00 pm to 4.30 pm to supply heroin to someone and if raid is conducted, they could be apprehended with heroin while supplying to third person. SI Vishan Kumar prepared a raiding party including himself, PW2, HC Ramesh Kumar, No.146/Crime and HC Ramesh, No.373/Crime. He further deposed that SI Vishan Kumar along with members of the raiding team, secret informer left the office of Crime Branch for the spot at about 3.45 pm after taking IO bag, field testing kit, electronic weighing machine vide DD no.17 in a private car bearing no. DL2CAP3942 Wagon R Silver colour, which was driven by SI Vishan Kumar and secret informer was sitting on the seat adjacent to driver seat and he had taken the route via Shantivan red light, Geeta Colony, Yamuna Bridge and stopped the vehicle twenty meters before Bus Stand, Geeta Colony, Pusta Road and vehicle was parked on the side of the road at about 3.55 pm. He further deposed that on the way to spot, SI Vishan Kumar had asked 4-5 rickshaw pullers to join the raiding party at Shantivan red light, but Page no. 5 of 46 none agreed and left after telling their difficulties. SI Vishan Kumar had also requested 4-5 persons to join the raiding party at Bus Stand, Geeta Colony, Pusta Road but none agreed and left after telling their difficulties. SI Vishan Kumar briefed the members of the raiding party upto 4.00 pm and thereafter members of the raiding party had taken position near Bus Stand, Geeta Colony, Pusta Road going towards Shakarpur within a radius of 10- 15 meter. He further deposed that at about 4.10 pm, two Afgani National were seen coming from Shakarpur side towards Bus Stand Geeta Colony and on seeing them from the distance of 30 meters, secret informer pointed out one of them, who was wearing badami colour afgani Kurta Pajama and having mehroon colour bag in his right hand as Jabiuulah Rahimi and secret informer identified the other Afgani person as Masjidi Firoz, who was wearing blue colour Afgani Kurta Pajama and having green colour heavy polythene in his right hand and after identifying both the persons, secret informer left from there towards Geeta Colony. He further deposed that both the Afgani persons stood ten meters away from Bus Stand Geeta Colony towards Shakarpur and started waiting for someone after watching in different directions and after waiting for ten minutes, both the Afgani persons begin to return towards Shakapur, at which, the members of the raiding party chased them on which both the persons become suspicious and started running towards Shakarpur on seeing the police party and he along with HC Ramesh No.146/Crime apprehended the accused Jabiuulah Rahimi at a distance of 18-20 meters and SI Vishan Kumar along with HC Ramesh Kumar, No.373/ Crime apprehended accused Masjidi Firoz at a distance of 18-20 meters at about Page no. 6 of 46 4.20 pm. Both the accused persons tried to flee from the custody of the police officials, but they were told that they were apprehended by the police and SI Vishan Kumar gave introduction of himself and police party and told them about the secret information. On Inquiry, the names of the accused persons were revealed as Jabiuulah Rahimi and Masjidi Firoz with their addresses. He further deposed that SI Vishan Kumar asked 5-6 passersby to join the investigation, but none agreed and left after telling their difficulties and SI Vishan Kumar called the car to the spot. He further deposed that SI Vishan Kumar had taken the bag from the hand of accused Jabiuulah Rahimi and apprehended him. On checking the bag, one transparent polythene was found and on opening the polythene tied with rubber band, it contained cream colour powder which was checked through field testing kit and it was found heroin. He further deposed that on being weighed the heroin was found 300 grams along with polythene and SI Vishan Kumar had taken two samples of 5 grams each from the heroin in small polythenes and converted them in pullandas which were given mark A1 and mark A2 and the remaining 290 grams heroin which was in polythene was again kept in the mehroon bag and converted into pullanda and mark A was given to the pullanda and all the three pullandas mark A1, A2 and mark A were sealed with the seal of 2BPS/NB DELHI and all the pullandas were signed by the witnesses and the accused Jabiuulah Rahimi. He further deposed that the green colour polythene carried by accused Masjidi Firoz was taken from his hand by SI Vishan Kumar and on checking the transparent polythene it was found containing cream powder and opening of which was tied with rubber band was found and on being checked Page no. 7 of 46 by field testing kit powder was found as heroin. He further deposed that on being weighed, 300 grams heroin was found and SI Vishan Kumar took two samples of 5 grams each from the heroin in small polythenes and converted them in pullandas which were given mark B-1 and mark B-2 and the remaining 290 grams heroin which was in polythene was again kept in the green polythene and converted into pullanda and mark B was given to the pullandas and all the three pullandas mark B-1, B-2 and mark B were sealed with the seal of 2BPS/NB DELHI and all the pullandas were signed by the witnesses and the accused Masjidi Firoz. He further deposed that SI Vishan Kumar filled FSL Form and sealed the same and thereafter the seal was handed over to HC Ramesh, No.146/Crime. He further deposed that all the sealed pullandas and Form FSL were taken into police possession through seizure memo Ex.PW2/A and thereafter notices under section 50 of the NDPS Act were served upon the accused persons Jabiuulah Rahimi and Masjidi Firoz due to possibility of further recovery from both accused persons, firstly accused Jabiuulah Rahimi was asked that his search would be taken as there are chances of further recovery of contraband from him and it is his legal right to give his search in presence of Gazetted Officer or Magistrate and he can take search of the police officials, but accused Jabiuulah refused to avail his legal right. He further deposed that the contents of the notice and meaning of Magistrate and Gazetted Officer was explained to accused and original notice under Section 50 of the NDPS Act was given to the accused Jabiuulah Rahimi. Refusal of the accused Jabiuulah was recorded on the carbon copy of the notice by SI Vishan Kumar Ex.PW2/B and reply of the Page no. 8 of 46 accused is Ex.PW2/C. He further deposed that thereafter accused Masjidi Firoz was asked that his search would be taken as there are chances of further recovery of contraband from him and it is his legal right to give his search in presence of Gazetted Officer or Magistrate or that he can take search of the police officials, but accused Masjidi Firoz refused to avail his legal right and the contents of the notice and meaning of Magistrate and Gazetted Officer was explained to the accused. He further deposed that original notice u/s 50 of the NDPS Act was given to accused Masjidi Firoz and refusal of the accused Masjidi Firoz was recorded on the carbon copy of the notice by SI Vishan Kumar Ex.PW2/D and reply of the accused Masjidi Firoz Ex.PW2/E. He further deposed that thereafter both accused persons were taken to the office at Narcotic Cell at about 7:45 pm and reached there at about 8.00 pm and both accused persons were produced before ACP Sh. Sandeep Lamba who was apprised about the facts of the case and the search of accused persons were taken before ACP Sandeep Lamba, but no other contraband was recovered from them and SI Vishan Kumar prepared non recovery memos in this regard relating to accused Jabiuulah Rahimi is Ex.PW2/F and relating to accused Masjidi Firoz is Ex.PW2/G. He further deposed that thereafter SI Vishan Kumar prepared tehrir and handed over tehrir, all the sealed pullandas, Form FSL, copy of seizure memo to HC Ramesh Kumar, No.373/ Crime and sent him to PS Crime Branch Pushp Vihar Delhi at about 10.30 pm with the direction to hand over the tehrir to the duty officer and sealed pullandas, Form FSL, copy of seizure memo to SHO PS Crime Branch. He further deposed that on 02.08.2019 at about 2.00 am HC Ramesh Page no. 9 of 46 Kumar, No. 373/Crime returned to Narcotic Cell office and produced original tehrir and copy of FIR to SI Rakesh Duhan as investigation was assigned to him and SI Vishan Kumar had apprised the facts of the case to SI Rakesh Duhan and handed over the custody and documents to him. He further deposed that at about 2.30 am, SI Rakesh Duhan and SI Vishan Kumar went to the spot and returned at about 3.15 am to the office. SI Rakesh Duhan recorded statement of SI Vishan Kumar. He further deposed that thereafter IO SI Rakesh Duhan interrogated accused Jabiuulah Rahimi and arrested him at about 4.00 am vide arrest memo Ex.PW2/H and conducted his personal search vide memo Ex.PW2/1 in which Rs.1820/-, one photocopy of his Passport, one original notice u/s 50 of the NDPS Act and some documents were found and same were mentioned in the personal search memo. IO recorded disclosure statement of accused Jabiuulah Rahimi Ex.PW2/J. He further deposed that SI Rakesh Duhan interrogated accused Masjidi Firoz and arrested him at about 5.00 am vide arrest memo Ex.PW2/K and conducted his personal search vide memo Ex.PW2/L in which Rs.1750/, identity card, one original notice u/s 50 of the NDPS Act and two rings were found and same were mentioned in the personal search memo. IO recorded disclosure statement of accused Masjidi Firoz Ex.PW2/M. He further deposed that thereafter both the accused persons were produced before Inspector Ram Manohar in his office at about 5.30 am and Inspector Ram Manohar made enquiry and satisfied himself about the recovery and arrest of the accused persons. He further deposed that IO recorded statement of Inspector Ram Manohar between 5.45 am to 6.15 am. IO recorded statement between 10.00 am to 11.00 Page no. 10 of 46 am. He identified both accused persons before the Court and case property i.e. heroin Ex. P1.
7. PW3 Insp. Ram Manohar deposed that on 01.08.2019, he was posted at Narcotics Cell as Inspector and at about 2.45 pm, SI Vishan Kumar alongwith with an informer came in his office room at Narcotics Cell, Daryaganj, Delhi and told that one Afgani National Jabiuulah, aged 40 years alongwith another Afgani national Masjidi Firoz who was residing as a refugee in the area of Laxmi Nagar would deliver a consignment of heroin to another person at Geeta Colony, Bus Stand, Pusta Road towards Shakarpur side between 4:00 pm to 4:30 pm and if raid was conducted all three of them could be apprehended and he made necessary inquiries from the informer and after his satisfaction he informed ACP Narcotics Cell in his office room at Narcotics Cell, Daryaganj who gave directions to conduct raid and take appropriate action. He further deposed that he conveyed the direction of ACP Narcotics Cell to SI Vishan Kumar and SI Vishan Kumar lodged a DD entry regarding the secret information under section 42 of the NDPS Act vide DD No. 16 at about 3:20 pm and gave him a copy of the same at 3:30 pm which was forwarded to ACP Narcotics Cell for information Ex. PW3/A and at 3.45 pm, SI Vishan Kumar alongwith HC Ramesh Kumar, HC Ramesh and HC Ramesh and HC Sanjay departed for the place of information in his private car Wagon R bearing no. DL2CAP3942 and by making DD entry vide no. 17 and by carrying IO kit, weighing machine etc. and after registration of FIR, investigation was handed over to SI Rakesh Duhan, who produced accused Jabiuulah Rahimi and Masjidi Firoz in the office room at Narcotic Cell, Daryaganj, Delhi at 5.30 Page no. 11 of 46 am on 02.08.2019. He further deposed that he made necessary enquiries from both accused persons and arrested them. SI Rakesh Duhan recorded their statements in his office room between 5.45 to 6.15 am and on 02.08.2019 at about 1.00 pm, SI Vishan Kumar produced two pages report under section 57 of the NDPS Act regarding the detailed facts and seizure of the case which, was forwarded to ACP, Narcotic Cell for information Ex. PW3/B.
8. PW4 Valiullah deposed that he was working as Manager in Sarah Lodge, Ballimaran, Old Delhi and brought guests stay register of his hotel, as per record, accused Jabiuulah Rahimi went to his lodge on 22.07.2019 at 6.00 pm. He further deposed that accused Jabiuulah Rahimi stayed in room no. 7 of his lodge and after staying for one day, Jabiuulah Rahimihad went to Almora, Uttarakhand on 23.07.2019 at about 5.00 pm. He further deposed that he made entries at serial no. 1854 regarding stay in register of his hotel in respect of foreigners according to Form-F Ex. PW4/A. He further deposed that accused Jabiuulah Rahimi again came to his lodge on 01.08.2019 at 7.00 am and stayed in room no. 9 of his lodge. PW4 made entries at serial no. 1863 in the relevant register Ex. PW4/B. He further deposed that on 03.08.2019, police officer came to his lodge in connection with the investigation of the case and accused Jabiuulah Rahimi was present with the police officer at that time, he was not aware that accused Jabiuulah Rahimi was involved in supply of drugs. He further deposed that accused Jabiuulah was having key of room no.9 and in his presence room no. 9 was opened in which Jabiuulah Rahimi stayed. He further deposed that searched of room was made but no Page no. 12 of 46 contraband was found in the room and police officer prepared memo Ex. PW4/C. He further deposed that he handed over copy of passport, identity proof having the photograph of accused Jabiuulah Rahimi to IO which was seized vide seizure memo Ex.PW4/D. He also handed over copy of relevant/register of lodge to the IO, which was seized vide seizure memo Ex. PW4/E. He further deposed that IO handed over the key of the room no. 9 to him through memo Ex. PW4/F.
9. PW5 SI Vishan Kumar deposed that on 01.08.2019, he was present in his office at Narcotics Cell Crime Branch, Old Kotwali Building, Delhi and on that day at about 2.30 pm, a secret informer came to office and informed him that two Afghani nationals namely Jabiuulah Rahimi and Masjidi Firoz would come near Bus stand, Geeta Colony, Pusta Road going towards Shakarpur between 4.00 pm to 4.30 pm for supplying heroin to some person and they could be apprehended. He further deposed that he interacted with the informer and then produced him before Inspector Ram Manohar in his office at 2.45 and shared the facts with him. He further deposed that Inspector Ram Manohar confirmed the secret information from secret informer and went to ACP R.K. Ojha and informed him about the information. He further deposed that ACP directed to conduct raid after preparing a team under his leadership. He further deposed that he recorded the secret information in roznamcha vide DD entry No. 16 at about 3.20 pm and produced its copy before Inspector Ram Manohar as per section 42 of the NDPS Act already Ex. PW3/A. He further deposed that he called HC Sanjay, HC Ramesh Kumar, HC Ramesh in his office at about 3.35 pm and shared the secret information Page no. 13 of 46 with them. He prepared a raiding party including himself, HC Sanjay, HC Ramesh Kumar and HC Ramesh. He further deposed that he left the office of Narcotics Cell, Crime Branch at about 3.50 pm after taking IO bag, field testing kit, electronic weighing machine vide DD entry no. 17 by private car bearing registration no. DL 2 CAP 3942 Wagon R Silver colour for the spot, which was driven by him and the secret informer was sitting on the seat adjacent to him. He further deposed that they took the route via Shantivan red light, Geeta Colony, Yamuna Bridge and stopped the vehicle about twenty meters Bus stand, Geeta Colony, Pusta Road. He further deposed that the vehicle was parked at a side of the road at about 3.55 pm and he asked 4-5 rickshaw pullers/ passerbys to join the raiding party on the way at Shantivan red light but none agreed and left after telling their difficulties. He briefed the members of the raiding party till 4.00 pm and thereafter, members of the raiding party had taken their positions near bus stand, Geeta Colony, Pusta Road going towards Shakarpur within a radius of 10-15 meters. He further deposed that two Afgani Nationals were seen coming from Shakarpur side at about 4.10 pm towards bus stand Geeta Colony and on seeing them from distance of 30 meters, the secret informer pointed out one of them who was wearing badami colour afgani Kurta Payjama, having mehroon colour bag in his right hand as Jabiuulah Rahimi and the secret informer identified the other Afgani person as Masjidi Firoz who was wearing blue colour Afgani Kurta Pajama and having seen polythene in his right hand and thereafter, secret informer left from there towards Geeta colony. He further deposed that both accused persons stopped near Bus stand Geeta Colony Page no. 14 of 46 towards Shakarpur side and they were waiting for someone and looking in different directions and after waiting for ten minutes and both accused persons started leaving towards Shakarpur. He further deposed that he followed accused persons and on seeing them, both accused persons started running towards Shakarpur side and thereafter, he alongwith HC Ramesh apprehended accused Masjidi Firoz. He further deposed that HC Sanjay and HC Ramesh Kumar apprehended accused Jabiuulah Rahimi at a distance of 20 meters at about 4.20 pm and despite being apprehended, both accused persons were trying to flee from their custody. He further deposed that both accused persons were told they were apprehended by the police officials and gave introduction of himself and the police party, he apprised them about the secret information and on enquiry, accused persons revealed their names as Jabiuulah Rahimi and Masjidi Firoz and thereafter, PW5 asked 5-6 passerbys to join the investigation but none agreed and left after telling their difficulties. He called the car to the spot through HC Ramesh and took the bag from the hand of accused Jabiuulah Rahimi and checked it. He further deposed that one transparent polythene was found in the bag with the opening of the polythene, tied with rubber band, containing cream colour powder and after opening the polythene, powder was checked through field testing kit and was found as heroin. He further deposed that on being weighed, heroine was found to be 300 gms alongwith the polythene. He drew two samples of 5 gms each from the heroine in small polythenes, converted them in pullandas and given Mark A1 and Mark A2. He further deposed that then he took green colour polythene from the hand of accused Masjidi Page no. 15 of 46 Firoz, who was apprehended by HC Ramesh, on checking the green polythene, it was found containing a transparent polythene which contained cream colour powder and on opening of transparent polythene, tied with rubber band, he checked the cream colour powder by field testing kit, which was found to be heroin, on being weighed the heroin was found to be 300 grams. He further deposed that he drew two samples of 5 gms from the heroin in small polythenes and converted them in pullandas by giving mark B-1 and mark B- 2 and remaining 290 gms heroin which was in transparent polythene, was again kept in the green polythene and converted into pulanda with the help of white cloth and given mark B. He had sealed all the three pullandas B-1, B-2 and mark B and accused also signed all the pulandas. He further deposed that after the use of seal, he handed over the same to HC Ramesh. He further deposed that notices u/s 50 NDPS Act were served upon accused persons as there was chances of further recovery. He further deposed that firstly accused Jabiuulah Rahimi was asked that his search would be taken as there are chances of further recovery of contraband from him. He further deposed that legal rights u/s 50 NDPS Act were explained to accused by stating that he can give his search in the presence of any nearest Gazetted Officer or any Magistrate but accused refused to avail his legal right and contents of notice u/s 50 NDPS Act was also explained to him. Refusal of accused Jabiuulah was recorded on carbon copy of the notice Ex. PW2/B and his reply is Ex. PW2/C. He further deposed that thereafter, accused Masjidi Firoz was informed that his search would be taken as there were chances of further recovery of contraband from him and further informed about his legal Page no. 16 of 46 regard that he could give his search in the presence of any nearest Gazetted Officer or any Magistrate but accused Masjidi Firoz refused to avail his legal right. Refusal of accused Masjidi was recorded on the carbon copy of the notice Ex. PW2/D and his reply Ex. PW2/E. He further deposed that both accused persons were taken to the office of Narcotics Cell at about 7.45 pm from the spot and reached the office at about 8.00 pm, where he produced both accused persons before the ACP Sandeep Lamba, who was apprised about the facts of the case and the search of accused persons were taken before ACP Sandeep Lamba but no other contraband was recovered from their possession. Non recovery memos of accused Jabiuulah Rahim Ex. PW2/F and of accused Masjidi Firoz Ex. PW2/G were prepared. He further deposed that he prepared Tehrir Ex. PW5/A and handed over it, all the sealed pulandas, Form FSL, Copy of seizure memos to HC Ramesh Kumar and sent him to PS Crime Branch Pushap Vihar, Delhi at about 10.30 pm with the directions to hand over the tehrir to the Duty Officer and sealed pulandas, Form FSL, copy of seizure memo to SHO PS Crime Branch. He further deposed that SI Rakesh Duhan met him in office at about 1.30 am on 02.08.2019 as further investigation was assigned to him. He further deposed that he apprised SI Rakesh Duhan about the facts of the case and produced both accused persons before him alongwith documents prepared. He further deposed that at about 2:00 am, HC Ramesh returned from PS Crime Branch and handed over copy of FIR and Tehrir to SI Rakesh Duhan. He further deposed that at about 2.30 am, he alongwith SI Rakesh Duhan went to the spot where SI Rakesh Duhan inspected Page no. 17 of 46 the spot at his instance and prepared site plan Ex. PW5/B and returned to office at about 3.15 am. He identified both accused persons correctly before the Court and case property.
10. PW6 ASI Ramesh Kumar deposed that on 01.08.2019, he was posted at Narcotic Cell Crime Branch, Old Kotwali Building, Delhi and on that day at about 3.35 pm, SI Vishan Kumar called him in his office where HC Ramesh Kumar and HC Sanjay and secret informer were already present. He further deposed that SI Vishan Kumar told them about the secret information that two Afgani Nationals namely Jabiuulah Rahimi and Masjidi Firoz would come near Bus stand, Geeta Colony, Pusta Road going towards Shakarpur between 4.00 pm to 4.30 pm to supply heroin to someone and if raid was conducted, they could be apprehended with heroin while supplying to third person. He further deposed that after that SI Vishan Kumar prepared a raiding party including himself, PW6, HC Ramesh Kumar, No.146/Crime and HC Sanjay. He further deposed that SI Vishan Kumar along with members of the raiding team, secret informer left the office of Crime Branch at about 3.45 pm after taking IO bag, field testing kit, electronic weighing machine vide DD entry no.17 by private car bearing no. DL 2 CAP 3942 Wagon R Silver colour for the spot, driven by SI Vishan Kumar, The secret informer was sitting on the seat adjacent to driver seat and they had taken the route via Shantivan red light, Geeta Colony, Yamuna Bridge and stopped the vehicle 20 meters before Bus Stand, Geeta Colony, Pusta Road and vehicle was parked at a side of the road at about 3.55 pm. He further deposed that on the way IO/SI Vishan Kumar asked 4-5 rickshaw pullers/ independent public persons to Page no. 18 of 46 join the raiding party at Shantivan red light but none agreed and left after telling their difficulties. He further deposed that SI Vishan Kumar also requested 4-5 persons to join the raiding party at Bus Stand, Geeta Colony, Pusta Road but none agreed and left after telling their difficulties. He further deposed that SI Vishan Kumar briefed the members of the raiding party upto 4.00 pm, thereafter, members of the raiding party took their position near Bus Stand, Geeta Colony, Pusta Road going towards Shakarpur within a radius of 10-15 meter. He further deposed that at about 4:10 pm, two Afghani Nationals i.e. both accused persons were seen coming from Shakarpur side towards Bus Stand Geeta Colony, on seeing them from the distance of 30 meters, secret informer pointed out one of them, who was wearing badami colour afgani Kurta Pajama and having mehroon colour bag in his right hand as Jabiuulah Rahimi and secret informer identified the other Afgani person as Masjidi Firoz, who was wearing blue colour Afgani Kurta Pajama having green colour heavy polythene in his right hand and after identifying both the persons secret informer left from there towards Geeta Colony. He further deposed that thereafter both the Afgani persons i.e. both accused persons stood ten meters away from Bus Stand Geeta Colony towards Shakarpur and started waiting for someone after watching in different directions and after waiting ten minutes, both them started returning towards Shakarpur, then members of the raiding party chased them on which becoming suspicious, started running towards Shakarpur on seeing the police party. He further deposed that HC Sanjay along with HC Ramesh No.146/Crime apprehended accused Jabiuulah Rahimi who was wearing badami Kurta Pajama at a Page no. 19 of 46 distance of 18-20 meters and SI Vishan Kumar along with HC Ramesh Kumar, No.373/ Crime apprehended accused Masjidi Firoz at a distance of 18-20 meters at about 4.20 pm. He further deposed that after being apprehended, both accused persons tried to flee from the custody of the police officials but they were told that they were apprehended by the police and SI Vishan Kumar gave his introduction and of police party and also apprised them about the secret information. He further deposed that the names of the accused persons were revealed as Jabiuulah Rahimi and Masjidi Firoz on enquiry with addresses. He further deposed that thereafter SI Vishan Kumar asked 5-6 passersby to join the investigation but none agreed and left after telling their difficulties and thereafter, SI Vishan Kumar summoned the car to the spot. He further deposed that SI Vishan Kumar took the bag from the hand of accused Jabiuulah Rahimi who was apprehended by HC Sanjay and checked the same on which one transparent polythene was found in the bag opening of the polythene, tied with rubber band which contains cream colour powder. After opening the polythene, powder was checked through field testing kit and found to be heroin. He further deposed that on being weighed the heroin was found 300 grams along with polythene. He further deposed that SI Vishan Kumar had taken two samples of 5 grams each from the heroin in small polythenes and converted them in pullandas after giving mark A1 and mark A2 and the remaining 290 grams heroin which was in polythene was again kept in the mehroon bag and converted into pullanda and mark A was given to the pullanda and after that all the three pullandas mark A1, A2 and mark A were sealed with the seal of 2BPS/NB DELHI by the IO. All the Page no. 20 of 46 pullandas were signed by the witnesses and accused Jabiuulah Rahimi. He further deposed that thereafter the green colour polythene carried by accused Masjidi Firoz was taken from his hand by SI Vishan Kumar, on being checked one transparent polythene containing cream powder and opening of which tied with rubber band was found and on being checked by field testing kit, powder was found to be heroin and on being weighed heroin was found 300 grams. He further deposed that SI Vishan Kumar took two samples of 5 grams each from the heroin in small polythenes and converted them in pullandas after giving mark B-1 and mark B-2 and remaining 290 grams heroin which was in polythene, was again kept in the green polythene and converted into pullanda after giving mark B. He further deposed that all the three pullandas mark B-1, B-2 and mark B were sealed with the seal of 2BPS/NB DELHI by the IO and all the pullandas were signed by the witnesses and accused Masjidi Firoz. He further deposed that SI Vishan Kumar filled Form FSL and sealed with the same seal, seal after use was handed over to HC Ramesh, No.146/Crime and all the sealed pullandas and Form FSL were taken into police possession through seizure memo Ex.PW2/A. He further deposed that thereafter notices under section 50 of the NDPS Act were served upon both accused persons Jabiuulah Rahimi and Masjidi Firoz due to possibility of further recovery from them. He further deposed that firstly accused Jabiuulah Rahimi was asked that his search would be taken as there are chances of further recovery of contraband from him and it is his legal right to give his search in presence of Gazetted Officer or Magistrate or that he could take search of the police officials but accused Page no. 21 of 46 Jabiuulah refused to avail his legal right. He further deposed that the contents of the notice and meaning of Magistrate and Gazetted Officer was explained to both accused persons and original notice u/s 50 of the NDPS Act was given to accused Jabiuulah Rahimi and his refusal was recorded on the carbon copy of the notice Ex.PW2/B and his reply Ex.PW2/C. He further deposed that thereafter accused Masjidi Firoz was asked that his search would be taken as there are chances of further recovery of contraband from him and it is his legal right to give his search in presence of Gazetted Officer or Magistrate or that he could take search of the police officials but accused Masjidi Firoz refused to avail his legal right and the contents of the notice and meaning of Magistrate and Gazetted Officer was explained to the accused Masjidi Firoz. He further deposed that original notice u/s 50 of the NDPS Act was given to accused Masjidi Firoz and his refusal was recorded on the carbon copy Ex.PW2/D and his reply Ex.PW2/E. He further deposed that thereafter both accused persons were taken to the office at Narcotic Cell at about 7.45 pm and reached there at about 8.00 pm, where both accused persons were produced before ACP Sh. Sandeep Lamba, who was apprised about the facts of the case and their search were taken before ACP Sandeep Lamba but no other contraband was recovered from them and SI Vishan Kumar prepared non recovery memos in this regard relating to accused Jabiuulah Rahimi Ex.PW2/F and accused Masjidi Firoz Ex.PW2/G. He further deposed that thereafter SI Vishan Kumar prepared a tehrir and handed over the same and all the sealed pullandas, Form FSL, copy of seizure memo to PW6 and sent to PS Crime Branch Pushp Vihar Delhi at Page no. 22 of 46 about 10.30 pm with the direction to hand over the tehrir to the duty officer and sealed pullandas, Form FSL, copy of seizure memo to SHO PS Crime Branch. He further deposed that at about 2.00 am on 02.08.2019, he returned to Narcotic Cell office and produced original tehrir and copy of FIR to second IO SI Rakesh Duhan as investigation was assigned to him as per the directions of senior officers. He further deposed that SI Vishan Kumar apprised the facts of the case to SI Rakesh Duhan and handed over the custody and documents to him related to the present case and at about 2.30 am, SI Rakesh Duhan and SI Vishan Kumar went to the spot and returned at about 3:15 am to the office and thereafter, SI Rakesh Duhan recorded statement of SI Vishan Kumar. He further deposed that thereafter IO SI Rakesh Duhan interrogated accused Jabiuulah Rahimi and arrested him at about 4.00 am vide arrest memo Ex.PW2/H and conducted his personal search vide memo Ex. PW2/I and in personal search of accused Jabiuulah Rahimi, Rs.1820/-, one photocopy of his Passport, one original notice u/s 50 of the NDPS Act and some documents were found which were mentioned in the personal search memo. He further deposed that IO recorded the disclosure statement of accused Jabiuulah Rahimi Ex.PW2/J. He further deposed that afterthat IO SI Rakesh Duhan interrogated accused Masjidi Firoz and arrested him at about 5.00 am vide arrest memo Ex.PW2/K and conducted his personal search vide memo Ex.PW2/L and in his personal search, Rs.1750/-, identity card, one original notice u/s 50 of the NDPS Act and two rings were found which were mentioned in the personal search memo. He further deposed that IO recorded the disclosure statement of Page no. 23 of 46 accused Masjidi Firoz Ex.PW2/M. He further deposed that thereafter both accused persons were produced before Inspector Ram Manohar in his office at about 5.30 am and Inspector Ram Manohar made enquiry and satisfied himself about the recovery and arrest of both accused persons. He further deposed that IO recorded statement of Inspector Ram Manohar between 5.45 am to 6.15 am and his statement also. He further deposed that original notice u/s 50 NDPS Act which was recovered from the possession of accused persons at the time of their search are Ex. PW5/11 and Ex. PW5/13. He further deposed that IO also seized the key, passport, identity card and photocopy register Ex.PW4/F, Ex. PW4/D, Ex. PW4/E and also prepared the seizure memo of photocopies register etc. vide seizure memo Ex. PW6/A. He identified both accused persons Jabiuulah and Masjidi Firoz before the Court and the case property.
11. PW7 Retd. ASI Jag Narayan deposed that on 01.08.2019, he was posted as MHC(M) in PS Crime Branch, Pushap Vihar. He further deposed that on that day, Insp. Satender Sangwan called him alongwith register no. 19 at his office and he handed over case property as mentioned in Mad No. 3964 Ex. PW7/A and Sh. Rakesh handed over the personal search articles of the accused and made entries in this regard vide Mad No. 3965 in register no. 19 Ex. PW7/B.
12. PW8 HC Sukhbir deposed that on 05.08.2019, he was posted at Narcotics Cell, Crime Branch and on that day, at the instruction of IO/SI Rakesh Duhan and DD entry No. 2 was registered in this regard, he left for Malkhana PS Crime Branch at about 7.30 am and reached at Malkhana PS Crime Branch at about 8.30-9.00 am from where he Page no. 24 of 46 obtained exhibits i.e. two pulandas A1 and B1 alongwith FSL form having seal of 2BPS/NB Delhi and SS vide RC 581/21 dated 05.08.2019 Ex. PW8/1. He further deposed that he handed over the case property and other documents at FSL Rohini and obtained receipt of receiving of the case property Ex. PW8/2 and handed over photocopy of receipt and road certificate to MHC(M) and original receipt and Road Certificate to IO. He further deposed that he did not temper with the case property during it remained in his possession.
13. PW9 HC Arjun deposed that on 15.11.2019, he was posted at Narcotics Cell, Crime Branch and at about 1:13 pm, IO/SI Rakesh Duhan called him and vide DD entry no. 10, he was directed to go to FSL Rohini from where he collected the FSL report and obtained two pulandas bearing case particulars and sealed with the seal of FSL. He further deposed that no tampering was done during the time, pulandas remained in his possession.
14. PW 10 Sh. Sandeep Lamba deposed that on 01.08.2019, he was posted as ACP/SIU and on that day, ACP R.K. Ojha was on leave, therefore, he was looking after his work. He further deposed that on that day at about 8.00 PM, IO SI Vishan Kumar came at his office alongwith two persons, later on their name were revealed as Jabiuulah and Masjidi Firoz, from whom the contraband was recovered. He further deposed that IO informed him all the facts of the case and informed that notice U/S 50 NDPS Act had already been served upon the accused persons, however, he again explained their rights stating that their personal search could be conducted before nearest Gazetted officer or Magistrate as per their wish, however they refused. PW10 further deposed that thereafter, IO conducted personal search of Page no. 25 of 46 accused persons, but no further contraband was recovered from them in personal search vide memo in this regard Ex.PW2/G and PW2/F. He further deposed that IO also furnished special report U/S 57 NDPS Act Ex.PW3/B and PW3/C and recorded his statement on 03.09.2019. He identified both accused persons before the Court.
15. PW11 SI Mahesh Chand deposed that on 26.07.2018, he was posted at Crime Branch Narcotics Cell as MHC(M), GP and on that day, he issued seal of 2B PS/NB DELHI to SI Vishan vide serial no. 4 of register no. 2018 N & CP and he deposited the seal on 27.12.2019 vide entry Ex. PW11/A (OSR). He further deposed that on 01.08.2019 at about 3.30 pm, electronic weighing machine was issued to SI Vishan vide serial no. 43 and he deposited the weighing machine on 02.08.2019 vide entry Ex. PW11/B (OSR).
16. PW12 Inspector Rakesh Duhan deposed that on 02.08.2019, he was posted at Narcotics Cell, Dariyaganj as Sub Inspector and on that day investigation was marked to him as per directions of senior officers. He further deposed that HC Ramesh handed over copy of FIR Ex. PW1/A and original Rukka Ex. PW1/B to him. He further deposed that SI Vishan met him in the office and handed over the documents and also produced both accused persons before him. He further deposed that thereafter, he alongwith SI Vishan left for the spot at about 2:30 am and SI Vishan shown the spot to him and he prepared site plan at the instance of SI Vishan Ex. PW5/B and thereafter, they came back at office, where he recorded statement of SI Vishan u/s 161 Cr.PC. and thereafter, SI Vishan was relieved from the investigation. He further deposed that he interrogated both accused persons and arrested them vide arrest Memo Ex.
Page no. 26 of 46 PW2/H and Ex. PW2/K and conducted personal search of accused Jabiuulah vide memo Ex. PW2/I in which Rs. 1820/- (500x3, 100x3 and 20x1), one photocopy of passport of accused, one laminated certificate in Urdu language, some visiting cards, one ticket, one key, one original notice u/s 50 NDPS Act etc. were found. He further deposed that he also conducted personal search of accused Masjidi Firoz in which Rs. 1750/, ID Card, two rings and one original notice u/s 50 NDPS Act were found which were taken into possession vide memo Ex. PW2/L. He further deposed that he recorded disclosure statements of accused persons Ex. PW2/J and Ex. PW2/M and thereafter, produced them before Inspector Ram Manohar at 5.30 am, who also interrogated both accused persons and satisfied himself with the arrest and recovery from the accused persons. He further deposed that he recorded statement of witnesses and deposited the personal search articles at Malkhana and also prepared report u/s 57 NDPS Act Ex. PW3/C. He further deposed that he obtained one day police custody of accused Masjidi Firoz and three days police custody of accused Jabiuulah Rahimi and accused Jabiuulah led them to the Hotel Sarah Lodge, Ballimaran and accused opened the gate of the room no. 9 in the presence of Manager, Waliullah but no contraband was found in the room and he prepared nil recovery memo in this regard Ex. PW4/C and handed over the keys of the room to the Manager vide Memo Ex. PW4/F. He further deposed that Waliullah, Manager of Sarah Lodge handed over original passport and original ID proof of the accused, which was seized vide seizure memo Ex. PW4/D. He also seized relevant photocopy of the visiting register Ex. PW4/A and Ex. PW4/B Page no. 27 of 46 of the Sarah Lodge vide memo Ex. PW4/E. He further deposed that on 03.08.2019, he left for Haldwani at the instance of accused Jabiuulah Rahimi, who led them to the Hotel Rainbow, where he met Urfi Siddiqui, Manager of Rainbow Hotel, who produced register and Form-C showing that accused Jabiuulah stayed in the said hotel and he obtained the copy of relevant documents Ex. A-1 (colly), which were seized vide seizure memo Ex. PW6/A and thereafter, he came back at Delhi and the relevant samples were sent to FSL through Ct. Sukhbir vide acknowledgment and Road Certificate Ex. PW8/1 and Ex. PW8/2. He also recorded his statement. He further deposed that as per the disclosure of the accused persons, he interrogated some persons namely Saleem, Agha Khan, Bismillah but no connecting/ relevant evidence could be found. He also got verified passport, Viza of Jabiuulah Rahimi and UNHRC card of Masjidi Firoz and all the documents were found to be genuine. He also seized documents furnished by Mohd. Saleem, father of accused Masjidi Firoz vide seizure memo Ex. A-2 (colly) and on verification, same were found to be genuine. He further deposed that he also obtained FSL result Ex. A-3. He filed chargesheet in the present case after completion of investigation. He identified both accused persons before the Court.
STATEMENT OF ACCUSED PERSONS U/S 313 Cr.P.C.
17. On 05.09.2024, statement of accused under Section 313 Code of Criminal Procedure of accused persons Jabiuulah Rahimi and Masjidi Feroz were recorded separately. In the statement under Section 313 Code of Criminal Procedure, accused persons have submitted that they are innocent and Page no. 28 of 46 have been falsely implicated in the present case on the basis of suspicion only. Nothing incriminating were recovered from their possession as alleged by the police, however, the contraband alleged to have been shown to be recovered from the accused persons have planted upon them by the police. They further stated in the statement that all the prosecution witnesses are police witnesses and deposed against them being interested / police witnesses. Accused persons did not prefer to lead defence evidence.
18. Ld. APP has argued that the prosecution witnesses have proved beyond reasonable doubt that the accused persons were apprehended with 300 gm of heroin each, which comes under commercial quantity. It has been argued that the testimonies of the prosecution witnesses have remained unrebutted and uncontroverted. It is further submitted that testimonies of PW2, PW5 and PW6 have proved beyond reasonable doubt that both the accused persons were apprehended near Bus Stand Geeta Colony on 01.08.2019 and 300-300 grams heroin was recovered from the bags carried by them. It is argued that all the mandatory provisions of the NDPS Act were duly complied with by the raiding party.
19. On the other hand, learned counsel for the accused persons submitted that the applicant has been falsely implicated in the present case. He submits that there are serious infirmities in the case of the prosecution. He submitted that even though the purported recovery happened in a public place, there are no independent witnesses. It is further submitted that that non-reference of the word 'nearest' in the notice served upon the accused persons under Section 50 of the NDPS Act makes the notice defective. In Page no. 29 of 46 support of the said contention, the learned counsel for the applicant relied upon the judgment passed by the Hon'ble High Court in the Mohd. Jabir v. State (NCT of Delhi), 2023 SCC OnLine Del 1827. It is submitted that in the present case, upon seizure, the compliance of Section 52Aof the NDPS Act was not made and the sampling procedure was not carried out before the learned Magistrate. It has been argued that the site plan Ex. PW5/B is full of inconsistencies and does not describe the alleged scene of crime and shows that the accused persons are innocent and the entire proceedings were conducted at the police station by the investigating officers.
20. Ld. APP in rejoinder arguments submitted that there is no discrepancy in the notice under Section 50 of the Act. He further submitted that Section 50 of the NDPS Act even otherwise, is not applicable as the recovery was made from the bag belonging to the applicant and not from his personal search. In support of the said contention, the learned APP placed reliance on the judgment passed by the Hon'ble Apex Court in Ranjan Kumar Chadha v. State of Himachal Pradesh, 2023 SCC OnLine SC 1262. He further submitted that the use of the word 'nearest Gazetted Officer' in Section 50 of the NDPS Act is directory in nature and not mandatory. It is submitted that the non-mentioning of the word 'nearest' alone cannot amount to non-compliance with Section 50 of the NDPS Act as the accused persons were duly informed about their rights as per the mandatory requirements of Section 50 of the NDPS Act.
21. PW2, PW5 and PW6 deposed that notice under section 50 NDPS was served upon the accused persons on the spot and they were informed about their legal rights before their Page no. 30 of 46 personal search was carried out before the ACP at the Narcotics Cell. Notice under section 50 NDPS Act, Ex.PW2/B served upon accused Jabiuulah Rahimi and its reply Ex.PW2/C has been duly proved by the prosecution witnesses PW2, PW5 and PW6. Notice under section 50 NDPS Act, Ex.PW2/D served upon accused Masjidi Firoz and its reply Ex.PW2/E has also been duly proved by the prosecution witnesses PW2, PW5 and PW6. All the three prosecution witnesses have consistently deposed that accused persons were duly informed about their legal rights under section 50 NDPS Act, however the accused persons refused to avail their rights under section 50 NDPS Act. Further PW10 ACP Sandeep Lamba also testified that at about 8:00 PM, accused Jabiuulah Rahimi and accused Masjidi Firoz were produced before him by IO SI Vishan Kumar and informed him about the facts of the case and the service of notice under section 50 NDPS Act on both the accused persons. He further deposed that he again explained their rights to the accused persons that their search may be conducted before the nearest Gazetted officer or Magistrate, however the accused persons refused to exercise their rights and their personal search was conducted by the IO, however no contraband was recovered from their persons search vide Ex.PW2/G and Ex.PW2/F. The Ld. APP has relied upon the judgment passed by the Hon'ble High Court in Bantu v. State (NCT of Delhi), 2024 SCC OnLine Del 4671 to contend that the omission of word 'nearest' in the notice under section 50 NDPS Act is not fatal to the case of prosecution.
22. Before delving into the controversy, it is pertinent to observe that in the present case no contraband has been recovered Page no. 31 of 46 from the personal search of the accused persons. Section 50 of the NDPS Act is not applicable in the present case as the recovery was made from the bags carried by the accused persons and not from the personal search of the accused persons. The Hon'ble Apex Court in Ranjan Kumar Chadha v. State of Himachal Pradesh (supra) held as under:
'121. The only idea with which we have referred to the various decisions of this Court starting with Balbir Singh (supra) till Dayalu Kashyap (supra) is to highlight that Section 50 of the NDPS Act has been tried to be interpreted and understood in many ways. As noted earlier, in some of the decisions of this Court, the concept of "inextricably linked to person" was applied. In other words, if the bag, etc. is in immediate possession of the accused and the search is undertaken of such bag, etc., even then, according to those decisions, Section 50 would be applicable. It could legitimately be argued that the interpretation of Section 50 restricting its scope only to the search of a person of the accused would frustrate the object as the apprehension of the person concerned may continue to subsist that he may still be implicated by the police or any other person for more stringent punishment of carrying commercial quantity by getting rid of the rigor of the mandatory provision of Section 50 by implanting the contraband in a vehicle, bag, etc. accompanying the person. What we are trying to convey has been explained in the case of State v. Klein [See : John C. Derrnbachet.al., A Practical Guide to Legal Writing and Legal Method (1994)]. In the said case, the issue before the U.S. Court was that whether a person can be held guilty for the offence of burglary more particularly when such person did not enter the house per se but tried to steal the object with the help of tree snips. The statute clearly declared that for burglary to happen, the defendant should be physically present. In this case, although the defendant never entered the house, yet he did extend his tree snips through the window. The Page no. 32 of 46 Court held that, "there is no meaningful difference between the snips and his arm because the penetration by the snips was merely an extension of Klein's person." Therefore, in the said case, the object which a person was carrying was held to be part of his body. A similar view could also have been adopted while interpreting the term "personal search". However, in view of plain and unambiguous statutory provision, there is no scope of interpreting Section 50 in any other manner than the interpretation explained in Baldev Singh (supra) and Pawan Kumar (supra).
122. It is a well-settled principle in law that the Court should not read anything into a statutory provision which is plain and unambiguous. A statute is an edict of the legislature. The language employed in a statute is the determinative factor of the legislative intent. The first and primary rule of construction is that the intention of the legislation must be found in the words used by the legislature itself. The question is not what may be supposed and has been intended but what has been said.
Judge Learned Hand said, "Statutes should be construed, not as theorems of Euclid, but with some imagination of the purposes which lie behind them". (See: Lehigh Valley Coal Co. v. Yensavage, 218 FR
547). The view was reiterated in Union of India v. Filip Tiago De Gama of Vedem Vasco De Gama, (1990) 1 SCC 277.
123. In D.R. Venkatchalam v. Dy. Transport Commissioner, (1977) 2 SCC 273, it was observed that the Courts must avoid the danger of an a priori determination of the meaning of a provision based on their own preconceived notions of ideological structure or scheme into which the provision to be interpreted is somewhat fitted. They are not entitled to usurp the legislative function under the disguise of interpretation.
124. While interpreting a provision, the Court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of process of law, it is for the legislature to amend, modify or repeal it, if deemed necessary. (See: Rishabh Agro Industries Ltd. v. P.N.B. Capital Services Ltd., (2000) 5 SCC 515). The legislative Page no. 33 of 46 casus omissus should not be supplied by judicial interpretative process. The language of Section 50 of the NDPS Act is plain and unambiguous. There is no scope of reading something into it as was done in many decisions of this Court which we have referred to in our judgment.
125. Two principles of construction - one relating to casus omissus and the other in regard to reading the statute as a whole - appear to be well settled. Under the first principle a casus omissus cannot be supplied by the Court except in the case of clear necessity and when reason for it is found in the four corners of the statute itself but at the same time a casus omissus should not be readily inferred and for that purpose all the parts of a statute or section must be construed together and every clause of a section should be construed with reference to the context and other clauses thereof so that the construction to be put on a particular provision makes a consistent enactment of the whole statute. This would be more so if literal construction of a particular clause leads to manifestly absurd or anomalous results which could not have been intended by the legislature.
"An intention to produce an unreasonable result", said Danckwerts, L.J., in Artemiou v. Procopiou, [1966] 1 Q.B. 878 : [1965] 3 All ER 539 : [1965] 3 WLR 1011 (CA)] (at All ER p. 544-I), "is not to be imputed to a statute if there is some other construction available". Where to apply words literally would "defeat the obvious intention of the legislation and produce a wholly unreasonable result", we must "do some violence to the words"
and so achieve that obvious intention and produce a rational construction. [Per Lord Reid inLuke v. IRC [[1963] A.C. 557 : [1963] 1 All ER 655 : [1963] 2 WLR 559 (HL)] where at AC p. 577 he also observed : (All ER p. 664-I) "This is not a new problem, though our standard of drafting is such that it rarely emerges."] (See: Padma Sundara Rao (Dead) v. State T.N., (2002) 3 SCC 533)
126. As such, there is no direct conflict between SK. Raju (supra) and Baljinder Singh (supra). It is pertinent to note that in SK.
Page no. 34 of 46 Raju (supra) the contraband was recovered from the bag which the accused was carrying, whereas in Baljinder Singh (supra) the contraband was recovered from the vehicle. This makes a lot of difference even while applying the concept of any object being "inextricably linked to the person". Parmanand (supra) relied upon the judgment in Dilip (supra) while taking the view that if both, the person of the accused as well as the bag is searched and the contraband is ultimately recovered from the bag, then it is as good as the search of a person and, therefore, Section 50 would be applicable. However, it is pertinent to note that Dilip (supra) has not taken into consideration Pawan Kumar (supra) which is of a larger Bench. It is also pertinent to note that although in Parmanand (supra) the Court looked into Pawan Kumar (supra), yet ultimately it followed Dilip (supra) and took the view that if the bag carried by the accused is searched and his person is also searched, Section 50 of the NDPS Act will have application. This is something travelling beyond what has been stated by the large Bench in Pawan Kumar (supra). Baljinder Singh (supra), on the other hand, says that Dilip (supra) does not lay down a good law.
127. In the facts of the present case, there is no scope of applying the ratio of Parmanand (supra) and SK. Raju (supra). At the cost of repetition, we may state that in the case on hand, there is nothing to indicate that the search of the person of the accused was also undertaken along with the bag which he was carrying on his shoulder.
128. We do not propose to say anything further as regards SK. Raju (supra) as well as Baljinder Singh (supra). We adhere to the principles of law as explained by the Constitution Bench in Baldev Singh (supra) and the larger Bench answering the reference in Pawan Kumar (supra).
xxx xxx
xxx
131. The aforesaid observations made by the seven-Judge Bench of this Court, more particularly the last three lines referred to above, "These Page no. 35 of 46 considerations become still more significant when the earlier decision happens to be a unanimous decision of a Bench of five learned Judges of this Court." persuade us to say that we must adhere to the principle of law as explained by the Constitution Bench in Baldev Singh (supra) and the larger Bench in Pawan Kumar (supra)
132. For all the foregoing reasons, we are of the view that the High Court was justified in holding the appellant guilty of the offence under the NDPS Act and at the same time, the High Court was also correct in saying that Section 50 of the NDPS Act was not required to be complied with as the recovery was from the bag."
23. In the present case, notices under section 50 of the NDPS Act was in fact given to both the accused persons. The contraband was seized from the bags, which were being carried by the accused persons. Their body search conducted later before the ACP did not result in recovery of any contraband, thus the compliance of Section 50 NDPS Act was not required, when the search of the bags carried by the accused persons was made resulting in recovery of contraband.
24. In the present case, the prosecution witnesses PW2, PW5 and PW6 deposed that the PW5, IO Vishan Kumar asked 4- 5 rickshaw pullers/ passerbys to join the raiding party on the way at Shantivan red light, but none agreed and left after telling their difficulties. As per the case of prosecution, the secret information was received at about 2:30 pm and the accused persons were apprehended at about 4:20-4:30 pm. It is established proposition of law vide catena of judgments viz. Dharampal Singh v. State of Punjab, (2010) 9 SCC 608; Raveen Kumar v. State of Himachal Pradesh, 2020 SCC, Jarnail Singh v. State of Punjab, (2011) 3 SCC 521; Sumit Tomar v. State of Punjab, (2013) 1 SCC 395 Page no. 36 of 46 and Mukesh Singh v. State (NCT of Delhi), (2020) 10 SCC 120 OnLine SC 869 that the case of the prosecution cannot be rejected merely on account of the case being tethered on the testimonies of official witnesses and non-examination of independent witnesses would thus not be fatal to the prosecution's case. The testimonies of the official witnesses cannot be disregarded merely on account of them being police officials or due to absence of corroboration from independent witnesses and the prosecution may furnish an explanation to justify the non-joinder of public witnesses during the course of the trial.
25. The Hon'ble Apex Court In the case of Raveen Kumar v. State of Himachal Pradesh(supra), while dealing with the question of whether absence of independent witnesses is fatal to the prosecution's case observed that while reliable testimonies of police officials can form the basis of conviction, lack of corroboration from independent witnesses casts an additional duty on the Court to exercise a higher degree of caution while scrutinizing the testimonies of the official witnesses. Thus, the Court has to see whether the evidence of prosecution witnesses has furnished an explanation to justify the non-joinder of public witnesses. Further the testimonies of the prosecution witnesses have to be scrutinized by exercising higher degree of caution.
26. The timeline in the present case as established by the testimonies of the prosecution witnesses shows that the secret information was received in the office of crime branch at about 2:30 pm by PW5, who after interacting with the informer produced him before Inspector Ram Manohar at 2:45 pm. Inspector Ram Manohar confirmed the facts from Page no. 37 of 46 the secret informer and went to ACP R.K. Ojha and informed him about the information, who directed to conduct the raid after preparing a team under the leadership of PW5. Roznamcha vide DD entry no. 16 Ex.PW3/A at about 3:20 was prepared and copy was produced before inspector Ram Manohar as per section 42 of NDPS Act. At about 3:35 pm team comprising PW2, PW6 and HC Ramesh led by PW5 was constituted and briefed by the PW5 regarding the secret information received. At about 3:50 the team left the office of Narcotics Cell, Crime Branch after obtaining IO bag, filed testing kit, electronic weighing machine vide DD No. 17. The team arrive at the spot at about 3:55 and was again briefed by PW5 till 4:00 pm. PW5 asked rickshaw pullers/passersby to join the raiding team but non agreed and left the spot citing their personal difficulties. The members of team took their positions. The accused persons were seen coming from Shakarpur side at about 4:10 pm and waited for somebody for about 10 minutes and thereafter started leaving towards Shakarpur. The raiding team members followed the accused persons, who on seeing the members of raiding team starting running towards Shakarpur. The raiding team members ran after them. PW5 alongwith HC Ramesh apprehended accused Masjidi Firoz and HC Sanjay and HC Ramesh Kumar apprehended accused Jabiuulah Rahimi at a distance of 20 meters at about 4.20 pm. The timeline suggests that the time duration between the receipt of secret information and the accused persons being apprehended is about 1 hour 50 minutes. The testimonies of PW2, PW5 and PW6 are consistent and remained uncontroverted on the aspect that PW 5 asked rickshaw pullers/passers-by to join the proceedings. During cross-
Page no. 38 of 46 examination of PW5, he reiterated the fact that he asked the public persons to join the investigation. It is admitted by him that he did not give notice to the public persons, who had refused to join the raiding party due to paucity of time. The timeline of events as proved by the prosecution witnesses shows that IO had very limited time frame between the receipt of information and the time when the accused persons were being apprehended, thus the prosecution has provided reasonable explanation for non-joinder of public witnesses, However, in absence of public witnesses, the testimonies of the prosecution witnesses have to be scrutinized by exercising higher degree of caution.
27. PW5 deposed that at about 2.30 am, he alongwith SI Rakesh Duhan went to the spot where SI Rakesh Duhan inspected the spot at his instance and prepared site plan Ex. PW5/B. SI Rakesh Duhan deposed as PW12 that he alongwith SI Vishan left for the spot at about 2:30 am and SI Vishan shown the spot to him and he prepared site plan at the instance of SI Vishan Ex. PW5/B. In Ex.PW5/B, the place where SI Vishan Kumar and HC Ramesh had taken positions is marked as point A and point B is the place where HC Sanjay and HC Ramesh had taken positions. Point C denotes the place, where the accused persons were waiting after arriving from the side of Shakarpur. Point C is shown just in front of the bus stop of Geeta Colony. Point D denotes the place, where the accused persons were apprehended by the raiding party.
28. Ld. Counsel for the accused persons has argued that in the FIR, Ex. PW1/A, it is stated that the accused persons after coming from Shakarpur side, stopped 10 meters before the Geeta Colony, Bus Stop towards the Shakarpur side, Page no. 39 of 46 whereas in Ex.PW5/B, point C is shown just in front of Geeta Colony, bus stop. PW2 has also deposed that accused persons stopped about 10 meters before the Geeta Colony, Bus stop. The said discrepancy has not been brought to the notice of raiding party and PW12, who prepared the Ex.PW5/B and they are given the suggestion that point C is situated in front of the Geeta Colony, Bus Stop. Ex.PW5/B is not a measured site plan and in the testimony of PW2, PW5 and PW6, the scene of crime has been correctly described by the witnesses and there is no contradiction in their testimonies with regard to scene of crime.
29. PW12 has deposed that the samples were sent to FSL through Ct. Sukhbir. Acknowledgment and Road Certificate Ex.PW8/1 and Ex.PW8/2 has been proved by PW8. FSL Report Ex. A-3 shows that Ex. A-1 and Ex.B-1 was found to contain Diacetylmorphine, Acetaminophen, Acetylcodeine and 6-Monoacetylmorphine.
30. There is no documentary evidence on record to show that the proceedings under section 52 A NDPS, Act were undertaken. Testimony of PW12 is silent in this regard. Section 52 A of NDPS Act provides as under:
Section 52A of the NDPS Act "52A. Disposal of seized narcotic drugs and psychotropic substances.-- (1) The Central Government may, having regard to the hazardous nature, vulnerability to theft, substitution, constraint of proper storage space or any other relevant consideration, in respect of any narcotic drugs, psychotropic substances, controlled substances or conveyances, by notification in the Official Gazette, specify such narcotic drugs, psychotropic substances, controlled substances or conveyance or class of narcotic drugs, class of psychotropic substances, class of controlled substances or conveyances, which shall, as soon as may be after their seizure, be Page no. 40 of 46 disposed of by such officer and in such manner as that Government may, from time to time, determine after following the procedure hereinafter specified. (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 sub-section (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 sub-section (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
31. A bare reading of section 52A NDPS, Act 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. The testimony of prosecution witnesses shows that neither any inventory of contraband recovered from the accused persons were drawn nor the same was forwarded to the Magistrate concerned for the purpose of certifying the correctness of inventory, taking relevant photographs in his Page no. 41 of 46 presence and certifying them as true. Further the samples sent to the FSL were also not drawn in the presence of magistrate. The Hon'ble Supreme Court in Mangilal v. State of M.P., 2023 SCC OnLine SC 862 has observed as under:
6. The obvious reason behind this provision is to inject fair play in the process of investigation. Section 52A of the NDPS Act is a mandatory rule of evidence which requires the physical presence of a Magistrate followed by an order facilitating his approval either for certifying an inventory or for a photograph taken apart from list of samples drawn...
32. The Hon'ble Apex Court recently in Mohd. Khalid v. State of Telangana, (2024) 5 SCC 393 observed as under:
26. Admittedly, no proceedings under Section 52-A of the NDPS Act were undertaken by the investigating officer PW 5 for preparing an inventory and obtaining samples in the presence of the jurisdictional Magistrate. In this view of the matter, the FSL report (Ext. P-11) is nothing but a waste paper and cannot be read in evidence. The accused A-3 and A-4 were not arrested at the spot.
33. In the present case, PW5 has deposed that he drew two samples of 5 gms each from 300 gram heroine recovered from accused Jabiuulah Rahimi in small polythenes, converted them in pullandas and given Mark A1 and Mark A2. He further deposed that then he took green colour polythene from the hand of accused Masjidi Firoz, who was apprehended by HC Ramesh, on checking the green polythene, it was found containing a transparent polythene which contained cream colour powder and on opening of transparent polythene, tied with rubber band, he checked the cream colour powder by field testing kit, which was found to be heroin, on being weighed the heroin was found to be 300 grams. He further deposed that he drew two samples of 5 gms from the heroin in small polythenes and Page no. 42 of 46 converted them in pullandas by giving mark B-1 and mark B- 2 and remaining 290 gms heroin which was in transparent polythene, was again kept in the green polythene and converted into pulanda with the help of white cloth and given mark B. He stated that he sealed all the three pullandas B-1, B-2 and mark B and accused also signed all the pulandas. FSL Report Ex. A3 show that Parcel A-1 sealed with one seal of 2BPS/NB Delhi and one seal of SS and parcel A-2 sealed with one seal of 2BPS/NB Delhi and one seal of SS was received in the FSL. Both the parcels are shown to contain light pinkish colour powdery material whereas as per testimony of PW2, PW5 and PW6, substance recovered from both the accused is shown to be cream coloured powdered substance. During the cross-examination of PW5, Parcel P7 was opened and the witness admitted that contraband is in hard and granular position. Court also made an observation during the testimony of PW5 that the Parcel P7 contains pinkish/ beige colour substance. The difference in the colour of contraband as per the statement of witnesses, FSL Report and the observation made by the Ld. Predecessor coupled with the fact that the samples of the seized contraband were not drawn in the presence of the Magistrate and the inventory of the seized contraband was also not certified by the Magistrate has shrouded the testimony of prosecution witnesses under doubt. The Hon'ble Apex Court in Yusuf v. State, 2023 SCC OnLine SC 1328, while discussing the mandatory nature of Section 52A of the NDPS Act observed as under:
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 Page no. 43 of 46 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 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 therefrom 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.
34. PW2, PW5 & PW6 have deposed that PW5 SI Vishan Kumar/seizing IO had taken two samples of 5 grams each from the heroin recovered from accused Jabiuulah Rahimi in small polythenes and converted them in pullandas which were given mark A1 and mark A2 and the remaining 290 grams heroin which was in polythene was again kept in the mehroon bag and converted into pullanda and mark A was given to the pullanda and all the three pullandas mark A1, A2 and mark A were sealed with the seal of 2BPS/NB DELHI and all the pullandas were signed by the witnesses and the accused Jabiuulah Rahimi. They further deposed that the green colour polythene carried by accused Masjidi Firoz was taken from his hand by SI Vishan Kumar and on checking the transparent polythene it was found containing cream powder and opening of which was tied with rubber band was found and on being checked by field testing kit powder was found as heroin. They further deposed that on being weighed, 300 grams heroin was found and SI Vishan Page no. 44 of 46 Kumar took two samples of 5 grams each from the heroin in small polythenes and converted them in pullandas which were given mark B-1 and mark B-2 and the remaining 290 grams heroin which was in polythene was again kept in the green polythene and converted into pullanda and mark B was given to the pullandas and all the three pullandas mark B-1, B-2 and mark B were sealed with the seal of 2BPS/NB DELHI and all the pullandas were signed by the witnesses and the accused Masjidi Firoz. They further deposed that SI Vishan Kumar filled FSL Form and sealed the same. The case property including the pullandas A-1, A-2, A, B-1, B-2, B alongwith FSL report and carbon copy of seizure memo was sent to Inspector Satender Sangwan, SHO Crime Branch through Head Constable Ramesh, who affixed his seal 'SS' on all the pullandas and FSL form. Thereafter, pullandas alongwith FSL form, copy of the seizure memo were deposited in malkhana and SHO signed the entry in register no. 19. After recovery, the investigation was marked to PW12 Insp. Rakesh Duhan, who deposed that samples were sent to FSL through Ct. Sukhbir vide acknowledgment and Road Certificate Ex. PW8/1 and Ex. PW8/2 respectively. PW8 deposed that on 05.08.2019, he was posted at Narcotics Cell, Crime Branch and on that day, at the instruction of IO/SI Rakesh Duhan and DD entry No. 2 was registered in this regard, he left for Malkhana PS Crime Branch at about 7.30 am and reached at Malkhana PS Crime Branch at about 8.30-9.00 am from where he obtained exhibits i.e. two pulandas A1 and B1 alongwith FSL form having seal of 2BPS/NB Delhi and SS vide RC 581/21 dated 05.08.2019 Ex. PW8/1. He further deposed that he handed over the case property and other documents at FSL Page no. 45 of 46 Rohini and obtained receipt of receiving of the case property Ex. PW8/2 and handed over photocopy of receipt and road certificate to MHC(M) and original receipt and Road Certificate to IO. Accordingly, the samples drawn by PW5 on the spot at time of recovery were sent to FSL and no samples were drawn before the Ld. Magistrate therefore in the absence of sample drawn before Ld. Magistrate and absence of inventory of seized contraband duly certified byALOK Ld. Magistrate as per Section 52A NDPS Act, it is apparentSHUKLA that the seized contraband and the sample drawn are not a primary evidence in trial, accordingly, in the absence of Digitally primary evidence with regard to samples, the whole trialsigned by ALOK SHUKLA stands vitiated in view of settled legal proposition as laid Date:
down by the Hon'ble Apex Court in Yusuf Vs. State, Supra.2024.09.28 16:38:09
35. In view of the abovesaid discussion, prosecution has failed+0530 to prove its case and accused Jabiuulah Rahimi and Masjidi Firoz are acquitted of the offences under Section 21(c) and section 29 of the NDPS Act read with Section 21(c) of the NDPS Act.
36. Bail bonds of the accused persons except bail bonds filed under section 437A CrPC stand cancelled. Their sureties stands discharged. Case property, if any, be released to the rightful owners.
37. File be consigned to Record Room after due compliance.
Announced in the open court on this 28th Day of September, 2024.
(Alok Shukla) Additional Session Judge-2/ Special Judge (Narcotic Drugs And Psychotropic Substances) / East Karkardooma/ Delhi/ 28.09.2024 Page no. 46 of 46