Delhi District Court
State vs Raj Kumar @ Raju @ Suman on 30 July, 2022
IN THE COURT OF SH REETESH SINGH: ADDITIONAL SESSIONS
JUDGE-2 (EAST), KARKARDOOMA COURTS, DELHI
CNR NO.DLET01-000869-2015
SC No. 428/2016
State Vs Raj Kumar @ Raju @ Suman
FIR No. 106/2015
PS Crime Branch -East Delhi
U/s 21 (c) of the NDPS Act
In the matter of
State
Vs.
Raj Kumar @ Raju @ Suman
S/o Late Sardari Lal
R/o H.No. B-21,
New Moti Nagar, Delhi.
...........Accused
Date of institution : 21.12.2015
Final arguments : 30.07.2022
Date of order : 30.07.2022
JUDGMENT
1. Accused person namely Raj Kumar @ Raju @ Suman is alleged to have been found in possession of 1 kg of heroin on 17.07.2015 and is facing trial in the Court for the offence under section 21 (c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act).
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2. The case of the prosecution as per the police report under section 173(2) of the CrPC and evidence on record is that on 17.07.2015 at about 4:00 PM, PW-3 SI Shiv Darshan received information from a secret informer in his office that one person Raju, resident of Moti Nagar, used to procure smack from Bareilly, Uttar Pradesh and supply the same in Delhi. Information given was that on 17.07.2015 Raju would be coming between 6:00 to 6:30 PM under Ghazipur Flyover, NH-24 after procuring smack from Bareilly and would be going to his house. PW-3 SI Shiv Darshan produced the secret informer at about 4:15 PM before PW-10 Inspector Vivek Pathak who interacted with the secret informer and after satisfying himself about the information, shared the information with PW-9 ACP Ravinder Kumar Tyagi telephonically who directed Inspector Vivek Pathak to act on the information. The secret information received by PW-3 SI Shiv Darshan was reduced in writing at 4:30 PM vide DD no. 26 Ex.PW3/A for compliance of section 42 of the NDPS Act. The said DD was submitted by PW-3 SI Shiv Darshan to Inspector Vivek Pathak who then forwarded it to PW-9 ACP Ravinder Kumar Tyagi.
3. PW-3 SI Shiv Darshan then called PW-4 HC Sanjeev Kumar and PW-12 SI Om Parkash (then HC) and apprised them about the secret information. PW-3 SI Shiv Darshan prepared a raiding team including himself, PW-4 and PW-12 and left along with the secret informer, IO bag, Field Testing Kit, electronic weighing machine and proceeded in Government vehicle bearing registration no. DL 1CM 4228 driven by HC Narender to Ghazipur Flyover, NH-24. The raiding team left at about 5:10 PM after recording DD no. 27 Ex.PW3/B. They reached the place of apprehension at about 6:10 PM after taking the route via Shantivan Traffic Signal, Geeta State Vs Raj Kumar @ Raju FIR No. 106/2015 P.S. Crime Branch-East Delhi Page No. 2 of 39 Colony Flyover, Ramesh Park, Akshardham and then NH-24. On the way the PW-3 SI Shiv Darshan requested five persons at Shantivan Traffic Signal to join the investigation after briefing them about the information but none agreed and left without giving their names and addresses. At Ramesh Park Bus Stand as well the PW-3 SI Shiv Darshan made attempt to join public persons with the investigation but none agreed. Notices could not be served upon such public persons due to paucity of time. When the police team reached under Ghazipur Flyover round about NH-24, the secret informer pointed out a person standing on the other side of the road to be Raju after which the informer left. The police team proceeded towards Raju in their Government vehicle who after seeing the vehicle, started to move but he was apprehended by the members of the raiding team at about 6:15 PM. Raju disclosed his name as the accused Raj Kumar @ Raju @ Suman.
4. PW-3 SI Shiv Darshan informed the accused that they had secret information about him being in possession of smack and introduced the members of the police team to the accused. The accused was informed of his legal right to be searched in the presence of a Gazetted Officer or Magistrate and that such official could be called prior to his search if the accused desired to avail his right. PW-3 SI Shiv Darshan also offered to the accused an opportunity to personally search the members of the police team as well as the Government vehicle prior to his search. PW-3 SI Shiv Darshan then prepared a notice Ex.PW3/C under section 50 of the NDPS Act and served its carbon copy Ex.P3 upon the accused. The accused Raj Kumar refused to avail his right and wrote his reply Ex.PW3/D on the notice Ex.PW3/C. The notice Ex.PW3/C bears the signature of PW-3 SI Shiv Darshan at point A, of the accused at point B, of PW-4 HC Sanjeev at point C and of PW-12 HC Om State Vs Raj Kumar @ Raju FIR No. 106/2015 P.S. Crime Branch-East Delhi Page No. 3 of 39 Parkash at point D. The reply of the accused Ex.PW3/D bears the signature of PW-3 SI Shiv Darshan at point A1, of the accused at point B1, of PW-4 HC Sanjeev at point C1 and of PW-12 HC Om Parkash at point D1. At that stage, PW-3 SI Shiv Darshan tried to associate public persons with their investigation but none agreed and left without disclosing their names and addresses.
5. The accused Raj Kumar was carrying a black coloured cloth bag in his left hand which was taken from him. The bag had four portions with zips, two strips for holding the bag on the shoulder and one strip for holding the bag with the hand. The zip of the bag was opened and was found containing one blue coloured polythene packet containing cotton, one jeans and one T-shirt. There was one green coloured polythene packet underneath the said items which contained a transparent polythene packet which had matmaila coloured powder. Some of this powder was taken out and tested with the field testing kit and the same turned out to be smack. The transparent polythene packet containing smack powder upon weighing on the electronic weighing machine was found to be 1 kg. Two samples of 5 grams each were drawn from the recovered smack powder and were kept in two transparent polythene packets and tied with rubber band. They were converted into cloth parcels and marked as 'A' and 'B'. The remaining smack powder kept in the transparent polythene packet was put back in the green coloured polythene packet after tying the same with rubber band. The same were then put back in the bag from which it was recovered. The bag was then converted into a cloth parcel and marked as 'C'. PW-3 SI Shiv Darshan filled FSL form at the place of recovery and sealed all the three parcels with the seal of '8CPS NB DELHI'. The same seal was also affixed on the FSL form. The said parcels State Vs Raj Kumar @ Raju FIR No. 106/2015 P.S. Crime Branch-East Delhi Page No. 4 of 39 and FSL form were seized by PW-3 SI Shiv Darshan vide seizure memo Ex.PW3/E bearing his signature at point 'A', of accused Raj Kumar at point 'B', of PW-4 HC Sanjeev at point 'C' and of PW-12 HC Om Parkash at point 'D'.
6. PW-3 SI Shiv Darshan prepared a rukka Ex.PW3/F and handed over the same to PW-12 HC Om Parkash to get the FIR registered from the Duty Officer. The parcels 'A', 'B' and 'C', carbon copy of seizure memo and the FSL form were also handed over to PW-12 HC Om Parkash with direction to hand over the same to SHO PS Crime Branch. PW-4 HC Om Parkash left for PS Crime Branch in the Government vehicle at 9:15 PM being driven by Ct. Narender. At about 10:15 PM, HC Om Parkash reached PS Crime Branch and handed over the rukka to Duty Officer PW-8 ASI Ram Prasad who registered the FIR of this case vide Ex.PW8/A and made endorsement on the rukka Ex.PW8/B. He also executed certificate under section 65 B of the Indian Evidence Act Ex.PW8/C in respect of the FIR and recorded Kayami DD entry Ex.PW8/D and DD no. 19 Ex.PW8/E regarding closing of FIR.
7. HC Om Parkash handed over the parcels 'A', 'B' and 'C', carbon copy of seizure memo and the FSL form to PW-11 Inspector Ravinder Kumar Sharma then SHO PS Crime Branch at about 10:20 PM. PW-11 after making enquiry about the FIR number from the Duty Officer recorded the same on the three sealed parcels, FSL form and carbon copy of seizure memo and also affixed his seal 'RK' on the same. PW-11 then called PW-6 HC Jag Narayan MHC(M) Crime Branch to whom these articles were handed over by PW-11 with direction to deposit the same in the malkhana. PW-6 HC Jag Narayan State Vs Raj Kumar @ Raju FIR No. 106/2015 P.S. Crime Branch-East Delhi Page No. 5 of 39 deposited the said articles in the malkhana and made entry no. 2398 in Register no. 19 Ex.PW6/A which was also signed at point X by PW-11 SHO Ravinder Kumar Sharma. PW-11 SHO Ravinder Kumar Sharma recorded DD no. 18 Ex.PW11/A at about 11:00 PM regarding these proceedings.
8. Further investigation of the matter was assigned to PW-13 / SI Rajveer Singh to whom PW-12 HC Om Parkash handed over copy of the FIR and original rukka. After lodging DD no. 2, PW-13 / SI Rajveer Singh proceeded to the place of apprehension on Government vehicle bearing registration no. DL 1CM 4228 driven by HC Narender Kumar where he reached at 1:00 AM of 18.07.2015. There PW-3 SI Shiv Darshan briefed him about the investigation conducted so far and handed over custody of the accused Raj Kumar. PW-13 / SI Rajveer Singh prepared site plan Ex.PW3/F at the instance of SI Shiv Darshan. He recorded statement of witnesses and interrogated accused Raj Kumar at the place of apprehension. The accused was arrested vide memo Ex.PW3/G at about 2:45 AM. Personal search of the accused Raj Kumar was conducted and carbon copy of the notice under section 50 of the NDPS Act, cash of Rs. 250/-, one rexine wallet containing visiting cards and a black coloured mobile phone make Samsung were recovered vide personal search memo Ex.PW3/G1. Disclosure statement Ex.PW3/G2 of accused Raj Kumar was recorded by PW-13 / SI Rajveer Singh and after completing investigation at the place of apprehension, they left the spot at about 3:20 AM in the Government vehicle and reached Crime Branch PS Malviya Nagar at about 4:15 AM.
9. At Crime Branch PS Malviya Nagar, PW-13 / SI Rajveer Singh deposited the personal search articles of the accused Raj Kumar with PW-6 State Vs Raj Kumar @ Raju FIR No. 106/2015 P.S. Crime Branch-East Delhi Page No. 6 of 39 SI Jag Narayan vide entry in Register no. 19 Ex.PW6/B. PW-13 / SI Rajveer Singh recorded the statements of PW-6 /SI Jag Narayan and PW-11 SHO Ravinder Kumar Sharma. Thereafter, at about 5:00 AM, PW-13 / SI Rajveer Singh left the said police station and reached office of Narcotics Cell, Darya Ganj at about 5:45 AM where he produced the accused Raj Kumar before PW-10 Inspector Vivek Pathak who also satisfied himself about arrest of the accused. DD no. 5 Ex.PW13/A was lodged by PW-13 / SI Rajveer Singh. The Log Book of the Government vehicle used in the investigation was filled vide Mark X. The IO recorded statements of witnesses and then prepared report Ex.PW7/C under section 57 of the NDPS Act regarding arrest of the accused which was submitted to PW-10 Inspector Vivek Pathak who signed the same at point B and signature of PW-13 / SI Rajveer Singh were at point A. In the meanwhile, PW-3 SI Shiv Darshan had also prepared a report Ex.PW7/B under section 57 of the NDPS Act regarding seizure of 1 kg of heroin from the accused which was submitted to PW-10 Inspector Vivek Pathak on which he signed at point B and which had the signature of PW-3 SI Shiv Darshan at point A.
10. PW-13 / SI Rajveer Singh further interrogated accused Raj Kumar regarding source of the recovered heroin who disclosed the name of Abid resident of Bareilly. Since the complete address of Abid was not disclosed he could not be traced. Accused further disclosed the name of one Deva of Sultan Puri to whom he used to supply smack but despite efforts, they were could not be traced. On the direction of PW-13 / SI Rajveer Singh, PW-5 HC Laxman Prasad collected one sealed exhibit Mark A of this case on 20.07.2015 from PW-6 SI Jag Narayan vide RC No. 213/21 Ex.PW6/C and deposited the same in FSL Rohini against receipt / acknowledgment State Vs Raj Kumar @ Raju FIR No. 106/2015 P.S. Crime Branch-East Delhi Page No. 7 of 39 Ex.PW6/D. On 07.12.2015 PW-6 SI Jag Narayan received one pullanda sealed with the seal of FSL along with result. The FSL report Ex.PW13/C was handed over by PW-6 to the IO PW-13 / SI Rajveer Singh.
11. On 01.10.2015 an application Ex.PW2/2 was moved by the IO under section 52 A of the NDPS Act which was marked for disposal by the Ld. CMM / East to PW-2 Ms. Richa Parihar then, Ld. MM/ Karkardooma Courts. The said proceedings were conducted on 23.11.2015 in the presence of the accused Raj Kumar, his LAC Sh. A.K. Bali, the IO / SI Rajbir Singh and other officials including photographer PW-1 HC Ishwar Prakash. The proceedings under section 52 A of the NDPS Act are Ex.PW2/3. Photographs of the proceedings Ex.PW1/A1 to Ex.PW1/A22 were taken by PW-1 HC Ishwar Prakash. Ex.PW1/B is the CD containing the digital copies of the photographs of the proceedings. Inventory filed by the IO is Ex.PW2/5 and after completion of proceedings, PW-2 issued certificate Ex.PW2/4 certifying the correctness of the proceedings. The record of the proceedings, photographs and CD were kept in sealed cover Ex.PW2/1.
12. After completion of investigation, PW-13 / SI Rajveer Singh filed the charge-sheet.
13. By order dated 15.02.2016 charge was framed against accused Raj Kumar @ Raju @ Suman for the offence under section 21 (c) of the NDPS Act to which he pleaded not guilty and claimed trial. The prosecution State Vs Raj Kumar @ Raju FIR No. 106/2015 P.S. Crime Branch-East Delhi Page No. 8 of 39 examined 13 witnesses to prove the charges against the accused. The details of the witnesses examined are tabulated as under: -
PW No. NAME RELEVANCE 1 HC Ishwar Prasad He took photographs Ex.PW1/A1 to Ex.PW1/A22 on 23.11.2015 during proceedings under section 52 A of the NDPS Act in the Court of Ms. Richa Parihar, Ld. MM, Karkardooma Courts.
2 Ms. Richa Parihar, She conducted proceedings under section Ld.MM 52-A of the NDPS Act on 23.11.2015 vide Ex.PW2/3 (collectively) in the presence of the accused Raj Kumar on an application moved by the IO.
3 SI Shiv Darshan He is the first IO of the case who received secret information, conducted investigation on 17.07.2015 along with PW-4 HC Sanjeev Kumar and PW-12 HC Om Prakash leading to apprehension of the accused and recovery of 1kg of heroin from the accused.
4 HC Sanjeev He was the part of the raiding team along Kumar with PW-3 SI Shiv Darshan and PW-12 HC Om Prakash which apprehended the accused and effected recoveries from him 17.07.2015.
5 HC Laxman On the direction of the second IO, he had Prashad collected sealed case property on 20.07.2015 from MHC(M) HC Jag Narayan and deposited the same in FSL Rohini vide RC no. 213/21.
6 ASI Jag Narayan He was working as MHC(M) PS Crime Branch and proved entries in Register no. 19 regarding depositing and issuance of case property.
7 HC Rajeev Kumar He was working as Reader to ACP and State Vs Raj Kumar @ Raju FIR No. 106/2015 P.S. Crime Branch-East Delhi Page No. 9 of 39 proved the record containing entries regarding receipt of DD no. 26 regarding receipt and recording of of secret information under section 42 of the NDPS Act. He also proved entries regarding receiving of reports under section 57 of the NDPS Act pertaining to recovery of heroin and arrest of the accused and the same being put up before ACP.
8 ASI Ram Prasad He was the duty officer in PS Crime Branch, Malviya Nagar who registered the FIR Ex.PW8/A on the basis of rukka sent by PW-3 SI Shiv Darshan through HC Om Parkash.
9 ACP Ravinder The secret information was shared with Kumar Tyagi him on 17.07.2015 by PW-10 Inspector Vivek Pathak after which he directed conducted of raid. Secret information recorded vide DD no. 26 under section 42 of the NDPS Act was put up before him. On 18.07.2015, reports under section 57 of the NDPS Act regarding apprehension of the accused and seizure of heroin were put up before him.
10 Inspector Vivek Secret information was shared with him Pathak by PW-3 SI Shiv Darshan which he communicated to PW-9 ACP Ravinder Kumar Tyagi and received directions for conducting of raid which he communicated to PW-3 SI Shiv Darshan.
He also forwarded in DD No. 26Ex.PW7/A in compliance of section 42 of the NDPS Act to the ACP PW-9.
11 Ravinder Kumar He was posted as SHO PS Crime Branch Sharma and received sealed parcels, FSL forms, Carbon copies of seizure memos from HC Om Parkash on which he affixed his seal of 'RK' and deposited the same in the malkhana after making entry in State Vs Raj Kumar @ Raju FIR No. 106/2015 P.S. Crime Branch-East Delhi Page No. 10 of 39 Register No. 19 in compliance of section 55 of the NDPS Act.
12 SI Om Parkash Then HC, he was the part of the raiding team along with PW-3 SI Shiv Darshan and PW-4 HC Sanjeev Kumar which apprehended the accused and effected recoveries from him 17.07.2015 13 SI Rajveer Singh He is second IO of the case to whom investigation was assigned after registration of the FIR. After completing investigation, he filed the charge-sheet.
14. Prosecution evidence was closed on 23.08.2019 and the matter was fixed for recording of the statement of the accused Raj Kumar @ Raju @ Suman. His statement under section 313 of the Cr.P.C. was recorded on 21.12.2019. Accused Raj Kumar denied all the incriminating evidence put to him and claimed false implication. He claimed that he was lifted from his home at Moti Nagar, Delhi and falsely implicated in this case by planting heroin/ smack upon him. He desired to lead evidence in defence. Matter was thereafter fixed for recording defence evidence. However, on 24.09.2021, the accused stated that he did not wish to lead any defence evidence. His statement to this effect was recorded on 24.09.2021 and defence evidence was closed. Matter was then fixed for final arguments.
15. Arguments were addressed on behalf of the accused by Sh. C.M. Sangwan, Ld. Counsel who also filed written submissions in his support and relied on case law. Arguments were addressed on behalf of the State by Sh. IUH Siddique, Ld. Addl. PP for the State.
16. I have heard the Ld. Counsel for the accused person and have gone through written submissions filed on their behalf carefully. I have heard State Vs Raj Kumar @ Raju FIR No. 106/2015 P.S. Crime Branch-East Delhi Page No. 11 of 39 the Ld. Addl. PP for the State and have perused the record of this case. Before adverting to the submissions made on behalf of the accused and the State, I shall first examine the evidence which has come on the record section wise.
EVIDENCE OF POLICE WITNESSES REGARDING APPREHENSION OF THE ACCUSED PERSONS AND RECOVERY OF HEROIN FROM THEM: -
17. The manner in which the accused Raj Kumar @ Raju @ Suman was apprehended and recoveries effected by the raiding team comprising of PW-3 SI Shiv Darshan, PW-4 HC Sanjeev Kumar and PW-12 HC Om Prakash have been detailed above. In their examinations in chief these three witnesses have deposed almost identically. I need not refer to their individual examination in chief.
18. In cross-examination on behalf of the accused PW-3 SI Shiv Darshan deposed that on 17.07.2015 he was present in his office from 9:00 AM and left the office for investigation at 5:10 PM. He had noted down information given by the secret informer in the Roznamcha which he had conveyed to his senior officer at 4:15 PM. He had with him white cloth, packing material, weighing machine, field testing kit and other necessary items in his IO bag. He was sitting on the front seat of the vehicle while HC Sanjeev, HC Om Prakash and the secret informer were sitting behind them. He had requested persons of the public to join the investigation at the spot but none had agreed. He did not issue any notice to those public persons. No Gazetted Officer was arranged as the accused refused to avail his right to be searched in the presence of such official. No Gazetted Officer was available in their on 17.07.2015 at that time. The accused was already present at the spot when they reached. They had seen him from across the road. It hardly State Vs Raj Kumar @ Raju FIR No. 106/2015 P.S. Crime Branch-East Delhi Page No. 12 of 39 took them five minutes to reach near the accused. At that time there was not much rush at the spot. He admitted that NH-24 being a Highway remains busy but deposed that at that time there was not much traffic. No police official from near by police post or police station was called to join the investigation. Accused was not standing at the bus stop but was standing 50 meters away from the bus stop. Effort was made to join public persons / passersby in the investigation at the time of apprehension but none agreed.
19. In cross-examination, PW-3 SI Shiv Darshan further deposed that they were all in civil clothes and he had his mobile phone with him. The same did not have a camera. He could not state the distance between the place of apprehension and office of DCP/East. He again said that he could not remember if there was a DCP office near the place of apprehension at that time. There was no jhuggi at the spot. He did not remember whether he mentioned about black coloured bag in the notice under section 50 of the NDPS Act. He took about 1 hour in preparing seizure memo. He lastly prepared the rukka at about 9:15 PM. He admitted that recovery of contraband was made from the accused on the main highway NH-24. He denied the suggestion that large number of persons had gathered at that time. He could not remember the time of preparation of FSL report. The accused was in the custody of HC Om Prakash when he was preparing the documents. He did the writing work while sitting inside the official vehicle while some documents were prepared on the bonnet of the vehicle. He did sampling of the contraband with the help of the other police officials. He sealed the parcels himself. He took about one hour in completing sampling and sealing. He had mentioned the exact location of their investigation in the site plan. All proceedings were conducted under flyover on left side of the road leading State Vs Raj Kumar @ Raju FIR No. 106/2015 P.S. Crime Branch-East Delhi Page No. 13 of 39 towards Delhi. Rest of his cross-examination is in the form of suggestions which he has denied.
20. PW-4 HC Sanjeev Kumar in cross-examination by the accused deposed that he was present in his office when SI Shiv Darshan told him about the secret information. It was 5:00 PM when SI Shiv Darshan called him in his office. At that time HC Om Prakash and the secret informer were present in the office of SI Shiv Darshan. Secret informer had not given information to SI Shiv Darshan in his presence. He remained in the office of SI Shiv Darshan for about 10 minutes. SI Shiv Darshan did not forward the information to any senior police official in his presence. He i.e. PW-4 was sitting in the gypsy behind the driver seat and HC Om Prakash was sitting on the left side with the secret informer sitting in between. HC Narender was driving the said vehicle while SI Shiv Darshan was sitting on the front left seat. He admitted that the place of apprehension was a crowded place and vehicles were passing by. The secret informer while sitting in the gypsy pointed out the accused and there was no occasion to take positions at the spot by the raiding team members. Public persons had been requested by the IO to join the proceedings but no notice was given to those public persons who did not join the investigation. They did not disclose their names to the IO. He could not state the distance between the place of apprehension and Metro Station as he had not seen Metro Station from there. No person was called from nearby residential locality to join the proceedings. Accused was apprehended within five minutes of their arrival. He could not state who had firstly apprehended the accused. He voluntarily explained that all the members of the raiding team apprehended the accused together. Notice under section 50 of the NDPS Act was prepared by the IO within 10 minutes of the State Vs Raj Kumar @ Raju FIR No. 106/2015 P.S. Crime Branch-East Delhi Page No. 14 of 39 apprehension of the accused. At that time, he along with other raiding team members were standing in front of the bonnet of the gypsy. He would be able to state his exact location after seeing the site plan. He pointed out point A on the site plan Ex.PW3/F and deposed that the gypsy was parked at that place and he was standing in front of the bonnet of the gypsy. He admitted that the site plan did not mention any specific landmark at point A.
21. In cross-examination PW-4 HC Sanjeev Kumar further deposed that he along with HC Prakash had surrounded the accused in front of the bonnet of the gypsy when the IO was preparing the notice under section 50 of the NDPS Act. He deposed that Gazetted Officer means an officer whose name is mentioned in the Gazette. No Gazetted Officer was part of the raiding team. He could not state whether DCP office was situated 1 km from the spot. SI Shiv Darshan did not enquire about presence of Gazetted Officer from the nearest DCP Office. Local police station was not informed about the apprehension. He remained in the investigation with SI Shiv Darshan for about 3 hours and did not leave the spot. He admitted that the notice under section 50 of the NDPS Act did not mention the word 'bag'. FSL form was prepared by SI Shiv Darshan at the spot. It was a printed form on both sides. At that time, the accused was made to sit in the police gypsy and he along with HC Om Prakash were in the rear side of the gypsy while SI Shiv Darshan was preparing FSL form while sitting in the gypsy on the rear seat. He could not remember the exact time. FSL form was prepared. It took three hours to complete the proceedings. 1 kg of heroin was recovered form search of the accused which was recovered from the bag carried by him. Nothing incriminating was found from his body. SI Shiv Darshan conducted cursory search of the accused.
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22. In cross-examination PW-4 HC Sanjeev Kumar further deposed that prior to search of the accused, IO tried to join public persons but none agreed. He did not know the name of any such person. No notice was given to them by the IO. Rukka was prepared in the handwriting of SI Shiv Darshan which took 1 ½ hours. There was sufficient street light at the spot. There was arrangement inside the gypsy for light and some writing work was done under street light and some in the gypsy. They were all in civil uniform. He did not remember if he was carrying any arms or ammunition. He did not have his mobile phone with him and could not state whether others were carrying their mobile phones. IO interrogated the accused first. After sending of rukka, the IO SI Shiv Darshan again interrogated the accused regarding the source of the heroin. He did not go with SI Shiv Darshan to trace source of heroin. During interrogation, accused had disclosed name of the source but he could not remember the name. He deposed that accused disclosed that he had brought the heroin from Bareilly. SI Shiv Darshan did not record interrogation of the accused on any paper in his presence. The heroin was weighed by the side of the road where sampling was also done. SI Shiv Darshan had done weighing, sampling and sealing while he i.e. PW-4 was standing nearby. He himself did not do the said work. The same took 40-45 minutes. He could not state any landmark present at the spot. Gypsy remained parked at point A in the site plan.
23. In cross-examination PW-4 HC Sanjeev Kumar further deposed that second IO/ASI Rajbir Singh reached the spot of apprehension at about 1:00AM. At that time, he i.e. PW-4, SI Shiv Darshan and the accused were present. SI Shiv Darshan handed over documents to ASI Rajbir. The accused was interrogated by ASI Rajbir at the spot in his presence. No raid was State Vs Raj Kumar @ Raju FIR No. 106/2015 P.S. Crime Branch-East Delhi Page No. 16 of 39 conducted from the place of apprehension to trace the source of supply. He along with SI Shiv Darshan, ASI Rajbir and the accused finally left the spot at about 3:15 AM and reached PS Crime Branch in the gypsy driven by HC Narender. IO did not inform senior police officers from the spot about the apprehension of the accused. Rest of the cross-examination of PW-4 HC Sanjeev Kumar which he has denied.
24. In cross-examination on behalf of accused, PW-12 HC Om Prakash deposed that he and HC Sanjeev Kumar were called by SI Shiv Darshan in his office. Secret informer was present at that time. IO did not note down any information in his presence regarding the secret information. He did not inform any senior officer in his presence. Except departure entry, IO did not conduct any written work in his office. They left their office at 5:10 PM. HC Narender was driving the gypsy in which he i.e. PW-12 was sitting on the rear seat with secret informer and HC Sanjeev Kumar and IO were sitting on the front seat by the side of the driver. IO requested public persons to join the raiding team but none agreed and left without disclosing their names and addresses and no notice could be given to them. Secret informer had firstly pointed out the accused from the spot at a distance of 10 to 15 paces. It was evening and there was no darkness at the spot at that time. Witness pointed out from the site plan that the gypsy was parked at the corner of roundabout shown in the site plan when secret informer pointed out the accused. There was traffic and public persons passing nearby the spot but it was not heavily crowded. Accused was apprehended at about 6:15 PM but he could not state that who apprehended the accused first. Cursory search of the accused was conducted by the IO and nothing incriminating was found. Notice under section 50 of the NDPS Act was prepared by SI Shiv Darshan.
State Vs Raj Kumar @ Raju FIR No. 106/2015 P.S. Crime Branch-East Delhi Page No. 17 of 39 There is no mention of black coloured bag in the notice under section 50 of the NDPS Act. Many public persons had gathered after apprehension of the accused and they were requested by the IO to join the investigation but none agreed. No notice was given to them. They did not disclose their names and addresses. No local police was informed of the proceedings. He admitted that DCP office was situated at a distance of 500 to 600 meters. No Gazetted Officer from the said office was called by the IO nor the accused was taken to such office. No arrangement was made for any Gazetted Officer when they started for their raid. At the time of apprehension, there was no arrangement of any Gazetted officer. Accused had been surrounded by the raiding team members. He i.e. PW-12 was on roadside towards Ghazipur. SI Shiv Darshan had introduced himself a raiding team member to the accused after his apprehension. Notice under section 50 of the NDPS Act was prepared by SI Shiv Darshan on the bonnet of gypsy. He could not remember the time of preparation of notice but it took 10 minutes for its preparation.
25. In cross-examination, PW-12 HC Om Prakash further deposed that after notice under section 50 of the NDPS Act, seizure memo was prepared by the IO while sitting inside Government gypsy. Other raiding team members had surrounded the accused at that time. He did not remember how much time was taken in preparation of seizure memo. Sampling work was done by SI Shiv Darshan. He could not remember his position at that time. He remained at the spot till 9:15 PM. SI Shiv Darshan had interrogated the accused in his presence. He could not remember if the accused had disclosed the source of contraband. Interrogation was not written down on any separate sheet by the IO. Sampling was done on the road towards Ghazipur. Distance between the roundabout and place of sampling work was State Vs Raj Kumar @ Raju FIR No. 106/2015 P.S. Crime Branch-East Delhi Page No. 18 of 39 8 - 10 paces. No public persons had gathered at the spot at that time. He did not have any mobile phone. He did not remember if other raiding team members were having any mobile phones. It took three hours to do writing work at the spot. Rukka was prepared by the IO after preparation of seizure memo. He did not remember how much time was taken for preparation of rukka. FSL form was of typed proforma of one page which was filled by the IO. He could not remember his position when the FSL form was prepared. No barricade was put on the road at that time by the IO. No senior officer was informed by the IO about the apprehension of the accused in his presence. Rest of the cross-examination of PW-12 HC Om Prakash is in the form of suggestions which he denied.
EVIDENCE OF THE SECOND IO :-
26. As recorded above, upon registration of the FIR investigation of this case was assigned to PW-13 SI Rajveer Singh. In his examination in chief, he has deposed that investigation of the FIR was assigned to him and he left office of Narcotic Cell, Crime Branch at about 12:30 AM of 18.07.2015 after lodging DD no. 2 and proceeded to the place of apprehension in Government vehicle DL 1CM 4228 driven by HC Narender Kumar. He reached the place of apprehension at about 1:00 AM where he met the other police officials SI Shiv Darshan and HC Sanjeev Kumar in whose custody the accused was also present. PW-13 SI Rajveer Singh then prepared the site plan at the instance of SI Shiv Darshan and recorded the statement of HC Sanjeev. He interrogated accused Raj Kumar @ Raju, arrested him, conducted his personal search and recorded his disclosure statement. In his personal search, carbon copy of the notice under section 50 of the NDPS Act State Vs Raj Kumar @ Raju FIR No. 106/2015 P.S. Crime Branch-East Delhi Page No. 19 of 39 was recovered along with other articles. After completing investigation at the spot, he along with other police officials and the accused left at 3:20 AM and reached Crime Branch PS Malviya Nagar at 4:15 AM where personal search articles of the accused were deposited with the malkhana. He deposed that at about 5:00 AM he then proceeded from the police station and reached Narcotics Cell, Darya Ganj at 5:45 AM and produced the accused before Inspector Vivek Pathak. DD no. 5 was lodged by PW-13 SI Rajveer Singh and logbook of Government gypsy was filled up. PW-13 SI Rajveer Singh then prepared report regarding arrest of the accused under section 57 of the NDPS Act which was submitted to Inspector Vivek Pathak. PW-13 SI Rajveer Singh interrogated the accused regarding source of supply which the accused disclosed to be Abid resident of Bareilly but in the absence of complete address, the supplier could not be traced. Accused further disclosed the name of the purchaser to be Deva of Sultan Puri but the said person also could not be traced. On his direction, HC Laxman deposited exhibits of the case on 20.07.2015 in FSL. Proceedings under section 52 A of the Cr.P.C.
was conducted before the Ld. Magistrate. He collected the FSL report and filed the charge-sheet.
27. In cross-examination on behalf of the accused, PW-13 SI Rajveer Singh deposed that HC Om Prakash had given him information about the matter and at that time he was in his office. He could not remember the other persons present in his office. HC Om Prakash had given a copy of the FIR and original rukka. He admitted that he was not aware about the case prior to receiving documents from HC Om Prakash. He had left HC Om Prakash in the office and proceeded for the spot. At that time he had not informed the SHO or senior officers about receipt of documents or leaving State Vs Raj Kumar @ Raju FIR No. 106/2015 P.S. Crime Branch-East Delhi Page No. 20 of 39 for investigation as investigation had been assigned to him by his senior officer. He left after recording departure entry. He reached the place of apprehension at 1:00 AM and met SI Shiv Darshan, HC Sanjeev Kumar and the accused whose name was revealed to him later. Accused was in the custody of HC Sanjeev. Disclosure statement was made by the accused in the presence of HC Sanjeev and SI Shiv Darshan. He had mentioned their locations in the site plan. He was standing on the service road going towards Delhi under the flyover NH-24. At that time there was no rush. He did not inform the local police station regarding their investigation. He admitted that there are jhuggis near the place of apprehension but they were not visible from the spot. He did not call any public person from those jhuggis. No public person was present at the spot at that time and for this reason, he could not make efforts to join them in the investigation. He firstly prepared site plan at the instance of SI Shiv Darshan after which he recorded the statement of HC Sanjeev. It took him 10 minutes to record disclosure statement of the accused. It was 3/3:15 AM at that time. The accused did not disclose the complete address of his supplier Abid. There was street light at the place of apprehension and he conducted all proceedings under street light. He did writing work while sitting in the Government vehicle. He prepared the site plan while he was outside the police vehicle. He has mentioned service road in the proceedings in the site plan. They left the place of apprehension finally at about 3:20AM. He had given report under section 57 of the NDPS Act to his superior officers. Rest of his cross-examination is in the form of suggestions which he denied.
RECORDING OF SECRET INFORMATION, COMPLIANCE OF SECTION 42 NDPS ACT State Vs Raj Kumar @ Raju FIR No. 106/2015 P.S. Crime Branch-East Delhi Page No. 21 of 39
28. As per the case of the prosecution, PW-3 SI Shiv Darshan received secret information in his office at about 4:00 PM on 17.07.2015. He produced the secret informer before Inspector Vivek Pathak PW-10 who after interacting with the informer, conveyed the information to PW-9 ACP Ravinder Kumar Tyagi. PW-9 directed PW-10 to conduct a raid which direction was passed on to PW-3 by PW-9. Police raiding team was constituted by PW-3 SI Shiv Darshan comprising of himself, PW-4 HC Sanjeev Kumar and PW-12 HC Om Prakash. The secret information was reduced in writing by PW-3 SI Shiv Darshan vide DD no. 26, carbon copy of which is Ex.PW3/A. DD no. 26 was forwarded by PW-3 SI Shiv Darshan to PW-10 Inspector Vivek Pathak who forwarded the same to PW-9 ACP Ravinder Kumar Tyagi.
29. In this regard PW-3 SI Shiv Darshan has deposed that after receiving secret information he shared the same with PW-10 Inspector Vivek Pathak and produced the informer before him. PW-10 Inspector Vivek Pathak in his evidence corroborated the version of PW-3 SI Shiv Darshan and deposed that he shared the information with PW-9 ACP Ravinder Kumar Tyagi who directed him to conduct raid. PW-9 ACP Ravinder Kumar Tyagi in his evidence confirmed that secret information regarding the matter was shared with him by Inspector Vivek Pathak and he had directed conduct of raid.
30. Regarding recording of DD no. 26 Ex.PW7/A, PW-3 SI Shiv Darshan has deposed that after getting direction to conduct the raid, he recorded DD no. 26 and forwarded the same to PW-10 Inspector Vivek Pathak. PW-10 Inspector Vivek Pathak has deposed that he received DD no. 26 on which he signed at point B and forwarded it to the ACP. PW-9 ACP State Vs Raj Kumar @ Raju FIR No. 106/2015 P.S. Crime Branch-East Delhi Page No. 22 of 39 Ravinder Kumar Tyagi has deposed that DD no. 26 was put up before him by his Reader on 17.07.2015 on which he signed at point A.
31. PW-7 HC Rajeev Kumar, then Reader in the office of ACP produced Dak Register containing entry 1974 dated 17.07.2015 Ex.PW7/A1 (OSR), vide which original DD no. 26 Ex.PW7/A was received in the office of ACP Ravinder Kumar Tyagi had been forwarded by Inspector Vivek Pathak. PW-7 deposed that he put up DD no. 26 before the ACP on 17.07.2015 who saw and signed the same at point A in his presence.
REGISTRATION OF THE FIR, DEPOSIT OF RECOVERED CONTRABAND IN SEALED PULLANDAS IN THE MALKHANA OF PS CRIME BRANCH AND COMPLIANCE OF SECTION 55 OF THE NDPS ACT.
32. As per the prosecution, on 17.07.2015 PW-3 SI Shiv Darshan had drawn two samples of 5 grams each from the recovered 1 kg heroin which were marked as 'A' and 'B' and the remaining heroin was put back in the original bag and marked as 'C'. FSL form was filled and the parcels as well as the form were sealed by PW-3 SI Shiv Darshan with the seal of '8CPS NB DELHI' and the same were seized vide memo Ex.PW3/E. PW-3 SI Shiv Darshan then prepared the rukka Ex.PW3/F and sent the seized parcels, FSL form and carbon copy of seizure memo to the police station through PW-12 HC Om Prakash. In evidence, PW-3 SI Shiv Darshan identified his signature on the seizure memo at point A, PW-4 HC Sanjeev Kumar identified his signature on the same at point C, PW-12 HC Om Prakash identified his signature on the said memo at point D and of the accused Raj Kumar at point B. State Vs Raj Kumar @ Raju FIR No. 106/2015 P.S. Crime Branch-East Delhi Page No. 23 of 39
33. PW-12 HC Om Prakash has deposed that he handed over the rukka to the Duty Officer PW-8 ASI Ram Prasad for registration of the FIR. PW-8 ASI Ram Prasad in his evidence has stated that after receiving the rukka from PW-12, he registered the FIR Ex.PW8/A and made endorsement Ex.PW8/C on the same and signed at point A. He lodged DD no. 1 Kayami Ex.PW8/D and DD no. 19 Ex.PW8/E regarding closing of writing of FIR.
34. PW-12 HC Om Prakash has deposed that he handed over the sealed parcels 'A', 'B' and 'C', FSL form and carbon copy of seizure memo to SHO Ravinder Kumar Sharma PW-11. PW-11 SHO Ravinder Kumar Sharma in his evidence has deposed that he received the three sealed parcels - A, B and C, FSL form and carbon copy of seizure memo all bearing the seal of '8CPS NB DELHI'. He wrote down FIR number on the same after making enquiry from the Duty Officer and then affixed his seal of 'RK' on all the pullandas and FSL form. He called the MHC(M) and handed over the same to him along with carbon copy of the seizure memo for deposit in the malkhana. PW-6 ASI Jag Narayan deposed that he was handed over the same by the SHO regarding which he made entry 2398 dated 17.07.2015 Ex.PW6/A and deposited the same in the malkhana.
DEPOSIT OF PERSONAL SEARCH ARTICLES OF THE ACCUSED IN THE MALKHANA, PRODUCTION OF ACCUSED PERSONS BEFORE INSPECTOR PS CRIME BRANCH
35. As per the prosecution, the second IO PW-13 SI Rajveer Singh conducted the personal search of the accused Raj Kumar vide Ex.PW3/G1 which records that carbon copy of notice under section 50 of the NDPS Act, cash Rs. 250/-, rexine wallet with some visiting cards, mobile phone make State Vs Raj Kumar @ Raju FIR No. 106/2015 P.S. Crime Branch-East Delhi Page No. 24 of 39 Samsung were recovered in the personal search of the accused. After completion of investigation from the spot, the same were deposited by PW-13 SI Rajveer Singh with MHC(M). In this regard, PW-13 has deposed that he handed over the personal search articles of the accused to PW-6 ASI Jag Narayan. PW-6 ASI Jag Narayan has deposed that he received the personal search items of the accused including carbon copy of notice under section 50 of the NDPS Act from PW-13 SI Rajveer Singh and deposited the same in the malkhana vide entry Ex.PW6/B.
36. PW-13 SI Rajveer Singh has deposed that he then produced the accused before Inspector Vivek Pathak PW-10 who also interrogated the accused. PW-10 Inspector Vivek Pathak has deposed that on 18.07.2015 PW- 13 SI Rajveer Singh had produced the accused before him in the office of the Narcotics Cell, Darya Ganj.
REPORTS UNDER SECTION 57 OF THE NDPS ACT.
37. PW-3 SI Shiv Darshan has deposed that he prepared a report under section 57 of the NDPS Act regarding seizure of 1 kg of heroin which was submitted by him to PW-10 Inspector Vivek Pathak who forwarded it to PW-9 ACP Ravinder Kumar Tyagi.
38. PW-10 Inspector Vivek Pathak as deposed that on 18.07.2015 he received a report under section 57 of the NDPS Act from SI Shiv Darshan and forwarded the same to the ACP after affixing his signature at point B. PW-9 ACP Ravinder Kumar Tyagi in his evidence has stated that on 18.07.2015, the report under section 57 of the NDPS Act Ex.PW7/B regarding recovery of heroin from the accused was put up before him by his Reader on which he signed at point A. State Vs Raj Kumar @ Raju FIR No. 106/2015 P.S. Crime Branch-East Delhi Page No. 25 of 39
39. PW-7 HC Rajeev Kumar, Reader in the office of ACP produced the Dak Register as per which vide entry no. 1975 Ex.PW7/B1 (OSR) the report under section 57 of the NDPS Act Ex.PW7/B was received through Inspector Vivek Pathak and put up before ACP Ravinder Kumar Tyagi.
40. PW-13 SI Rajveer Singh has deposed that he had prepared a report pertaining to arrest of the accused under section 57 of the NDPS Act Ex.PW7/C bearing his signature at point C which he had submitted to PW-10 Inspector Vivek Pathak who had forwarded the same to PW-9 ACP Ravinder Kumar Tyagi. PW-10 Inspector Vivek Pathak has stated in his evidence that the said report bearing his signature at point B was forwarded by him to the ACP. PW-9 ACP Ravinder Kumar Tyagi in his evidence has stated that on 18.07.2015, the report regarding arrest of the accused under section 57 of the NDPS Act Ex.PW7/C was put up before him by his Reader on which he signed at point A.
41. PW-7 HC Rajeev Kumar, Reader in the office of ACP produced the Dak Register in which vide entry no. 1976 Ex.PW7/C1 (OSR), report under section 57 of the NDPS Act Ex.PW7/C regarding arrest of the accused was received through Inspector Vivek Pathak and was put up before ACP Ravinder Kumar Tyagi.
COMPLIANCE OF SECTION 50 OF THE NDPS ACT
42. PW-3 SI Shiv Darshan has deposed that after apprehension of the accused, he introduced the members of the police team to the accused and disclosed that they had information that he i.e. the accused might be in possession of heroin for which his search was to be conducted. The accused was informed that he had a legal right to be searched in the presence of a State Vs Raj Kumar @ Raju FIR No. 106/2015 P.S. Crime Branch-East Delhi Page No. 26 of 39 Magistrate or Gazetted Officer and that arrangement for the same could be done if he so desired. The accused was offered an opportunity to take the search of the raiding team members and the Government vehicle prior to his search. Thereafter, PW-3 SI Shiv Darshan prepared a notice under section 50 of the NDPS Act Ex.PW3/C and served its carbon copy Ex.P3 upon the accused. The notice Ex.PW3/C bears the signature of PW-3 SI Shiv Darshan at point A, of PW-4 HC Sanjeev Kumar at point C, PW-12 HC Om Prakash at point D and of the accused at point B. The text of the notice Ex.PW3/C is in Hindi and states as under:-
That you Sh. Raj Kumar @ Raju @ Suman son of Late Sh. Sardari Lal r/o B- 21, New Moti Nagar, Delhi aged 40 years is informed through this notice that we have information that you are engaged in bringing heroin from Bareilly for sale in bulk and in small quantities in and around Moti Nagar, Delhi and that at this time today also you have brought heroin from Bareilly and that there are chances of recovery of heroin from you and for this reason I am required to search you and your luggage but before the search you have a legal right that if you so desire your search can be conducted in the presence of the nearest Gazetted Officer or Magistrate arrangement for which can be done and that before your search you can take the search of the Government gypsy and police raiding team.
43. PW-3 SI Shiv Darshan deposed that the accused Raj Kumar himself wrote his reply Ex.PW3/D to the above mentioned notice in which he declined to avail his right to be searched in the presence of a Gazetted Officer or Magistrate. The reply Ex.PW3/D has the signatures of PW-3 SI Shiv Darshan at point A1, of PW-4 HC Sanjeev Kumar at point C1, of PW-12 HC Om Prakash at point D1 and of the accused at point B1. In the said reply which is in Hindi, the accused has stated as under:-
I have received a copy of the notice and have read the same. You have also read the contents of the notice to me and have explained the same to me. I have fully understood my legal rights and have also understood the meaning of Gazetted Officer and Magistrate. I do not one to get myself and my luggage searched in the presence of a Gazetted Officer or Magistrate. I do not want to State Vs Raj Kumar @ Raju FIR No. 106/2015 P.S. Crime Branch-East Delhi Page No. 27 of 39 take search of the Government gypsy or the police party. You can take my search.
44. After recovery of heroin and registration of the FIR, PW-13 SI Rajveer Singh, the second IO, conducted the personal search of the accused and the carbon copy Ex.P3 of the notice under section 50 of the NDPS Act was recovered from the accused and seized with other personal search articles vide memo Ex.PW3/G1. The said carbon copy of the notice along with other articles were deposited by PW-13 SI Rajveer Singh with PW-6 ASI Jag Narayan MHC(M) on 18.07.2015 vide entry in Register no. 19 Ex.PW6/B. The carbon copy of the notice under section 50 of the NDPS Act on the judicial record is Ex.P3 which was identified in the Court by PW-3 SI Shiv Darshan on 23.09.2016 after the same was produced in the Court by the MHC(M).
DEPOSIT OF EXHIBITS IN FSL FOR FORENSIC EXAMINATION AND FSL REPORT
45. PW-5 HC Laxman Prasad on the directions of the IO on 20.07.2015 had collected one sealed sample mark A from the MHC(M) along with FSL form vide RC no. 213/2021 and had deposited the same with FSL Rohini. He handed over acknowledgment of receipt to the MHC(M). PW-6 ASI Jag Narayan, the MHC(M) produced the record and stated that he had handed over parcel 'A' to HC Laxman Prasad on 20.07.2015 vide RC no. 213/2021 Ex.PW6/C. He also deposed that acknowledgment of receipt of the pullanda was received by him vide Ex.PW6/D and that on 07.12.2015 he received one pullanda sealed with the seal of FSL along with result.
State Vs Raj Kumar @ Raju FIR No. 106/2015 P.S. Crime Branch-East Delhi Page No. 28 of 39
46. The FSL report Ex.PW13/C is on the record. As per the same, the exhibits were examined by Dr. Adesh Kumar, Senior Scientific Officer (Chemistry) FSL Rohini. Report records that parcel 'A' bearing seal of "8CPS/NB DELHI" and 'RK' was received with the particulars of this case. The same was kept in polythene pouch tied with a rubber band. Ex.A was brown coloured powder with granules stated to be heroin weighing approximately 5.4038 grams (with polythene tied with rubber band). Ex.A upon forensic examination was confirmed to be heroin / smack.
PLEA OF THE ACCUSED UNDER SECTION 313 OF THE CRPC AND DEFENCE EVIDENCE: -
47. Statement of the accused was recorded under section 313 of the Cr.P.C. on 21.12.2019. In the same he denied all the incriminating evidence put to him. He claimed that no recovery was effected from him and that he was arrested from his house at Moti Nagar, Delhi and falsely implicated in this case. The alleged recovered heroin was planted upon him. He claimed that police officials did not apprehend the main culprit.
ARGUMENTS ADDRESSED BY SH. C.M. SANGWAN, LD. COUNSEL FOR THE ACCUSED AND SH. IUH SIDDIQUE, LD. ADDITIONAL PP FOR THE STATE
48. Sh. C.M. Sangwan, Ld. Counsel for the accused has addressed oral arguments and has filed written submissions in support. He submitted that the notice under section 50 of the NDPS Act does not mention presence of any 'bag' while as per the case of the prosecution, the smack was found hidden inside the bag allegedly carried by the accused. He submitted that in State Vs Raj Kumar @ Raju FIR No. 106/2015 P.S. Crime Branch-East Delhi Page No. 29 of 39 the absence of mentioning presence of 'black coloured bag' in the notice under section 50 of the NDPS Act, the notice was defective as it was the case of the prosecution that the contraband was found hidden in the said bag. He further submitted that even though raid was conducted after receipt of secret information, the raiding team had not made any advance arrangements for the search of the accused to be carried out in the presence of a Gazetted Officer or Magistrate. He submitted that PW-3 and PW-12 have deposed that no such arrangement was made which reveals that the offer made to the accused of being searched in the presence of such official was an empty formality.
49. Sh. C.M. Sangwan, Ld. Counsel submitted that while the police witnesses had described the colour of the recovered Ganja to be matmaila which according to Ld. Counsel is colour beige while as per FSL report Ex.PW 13/C, the colour of the sample sent to FSL was brown. He submitted that as per PW-3, PW-4 and PW-12 the recovered contraband was described as 'matmaila colour powder' while in the FSL report, the substance described as brown colour powder with granules.
50. He submitted that as per the seizure memo Ex.PW3/E the black bag allegedly recovered from the accused contained and Aasmani polythene which also had a towel. The said polythene had a green polythene packet and the green polythene packet contained a transparent polythene packet allegedly containing smack. He submitted that PW-3 SI Shiv Darshan does not mention presence of towel in the blue polythene packet in his examination in chief. PW-12 HC Om Parkash also does not mention presence of any towel. He submitted that the charge-sheet also stated one towel was State Vs Raj Kumar @ Raju FIR No. 106/2015 P.S. Crime Branch-East Delhi Page No. 30 of 39 recovered from the black coloured bag but none of the relevant witnesses deposed about presence of towel.
51. He submitted that the site plan does not mention the place where recovery of smack was made from the accused. The site plan mentions point A (Ghaziabad to Delhi side) to be the place where the accused was apprehended and point B (Delhi to Ghaziabad side) as the place where the police team had spotted the accused. There is doubt about place of apprehension of the accused as place of actual recovery of contraband is not specifically mentioned in the site plan.
52. He submitted that there are contradictions in the statements made by PW-3, PW-4 and PW-12 i.e. the recovery witnesses about who was sitting on which seat of the Government vehicle. He submitted that PW-3 has deposed that he was sitting on the front passenger seat while PW-4 and PW- 12 were sitting on the rear seat with the secret informer. PW-4 has said that he was sitting in the vehicle behind the driver and HC Om Parkash was sitting on the left side with the secret informer sitting in between them. PW- 12 has said that he was sitting on the rear seat with the secret informer while PW-4 HC Sanjeev and PW-3 IO were sitting on the front seat by the side of the driver. He submitted that HC Narender the driver of the Government vehicle used in the investigation was not examined as a witness.
53. Sh. C.M. Sangwan, Ld. Counsel has further submitted that there are contradictions regarding the place where the writing work and memos were prepared. PW-3 said that it was done on the bonnet of the Government vehicle and while sitting in the Government vehicle. PW-4 has said that writing work was done under the street light. PW-12 has said that notice State Vs Raj Kumar @ Raju FIR No. 106/2015 P.S. Crime Branch-East Delhi Page No. 31 of 39 under section 50 of the NDPS Act was prepared under sunlight. He submitted that this contradiction whether place of recovery was a crowded place or a secluded spot. He submitted that PW-4 said that the place was crowded but PW-12 said that the place was not heavily crowded. He submitted that there is no specific record as to who apprehended the accused at the spot.
54. He submitted that PW-3 said that the recovered substance was checked in the 'weighing testing kit' and it cannot be understood as to how any substance can be tested on 'weighing testing kit'. He submitted that the IO failed to join any public persons with the investigation even though the accused was allegedly apprehended in a public place. Sh. C.M. Sangwan, Ld. Counsel has submitted that the IO PW-13 / SI Rajveer Singh did not conduct any investigation or raid to apprehend the person from whom the accused had allegedly procured the recovered contraband. He submitted that in view of these numerous contradictions, the version of police witnesses cannot be relied upon. Sh. C.M. Sangwan, Ld. Counsel relied on the following case law in his support:-
(a) Sanjeev & Anr Vs State of Himachal Pradesh, Crl. Appl. No. 870/2016 decided by the Hon'ble Supreme Court on 09.03.2022
(b) Naresh Bahadur Sahi Vs State of Himachal Pradesh, Crl. Appl.
No. 483/2022 decided by the Hon'ble Supreme Court on 25.03.2022
55. On the other hand, Sh. IUH Siddique, Ld. Addl. PP for the State has submitted that the accused Raj Kumar was apprehended in pursuance of secret information and was found to be in possession of 1 kg of heroin / smack which is commercial quantity. He submitted that the statements of the State Vs Raj Kumar @ Raju FIR No. 106/2015 P.S. Crime Branch-East Delhi Page No. 32 of 39 recovery witnesses are consistent with each other. Compliances have been made with respect to the provisions of sections 42, 50, 55 and 57 of the NDPS Act. FSL report proves that the recovered substance is smack / heroin. He submitted that the evidence on record was sufficient to convict the accused Raj Kumar for the charges framed against him.
ANALYSIS OF THE EVIDENCE, ARGUMENTS MADE ON BEHALF OF THE ACCUSED AND FINDINGS
56. The first submission made on behalf of the accused was that recovery of heroin is stated to have been effected from the bag found with the accused but there is no mention of any black coloured bag in the notice under section 50 of the NDPS Act. I have referred to the contents of the notice Ex.PW3/C under section 50 of the NDPS Act. The same does not mention 'black coloured bag' in the same but it does mention that the accused was put to notice that search was to be carried out of his person as well as his luggage mentioned as "samaan". Admittedly, as per the case of the prosecution, the recovered heroin was found hidden in the bag carried by the accused which was of black colour. Reliance was placed on the judgment of Hon'ble Supreme Court in the case of Sanjeev & Anr Vs State of Himachal Pradesh (supra) by the Ld. Counsel for the accused.
57. The purpose of giving notice under section 50 of the NDPS Act is to apprise the person accused that he has a statutory right to be searched in the presence of a Gazetted Officer or Magistrate. The contents of the notice Ex.PW3/C comply with the said objective, that is the accused was apprised of his right to be searched in the presence of a Gazetted Officer or Magistrate if he so requires. The accused refused to avail the said right in his own writing State Vs Raj Kumar @ Raju FIR No. 106/2015 P.S. Crime Branch-East Delhi Page No. 33 of 39 vide his reply Ex.PW3/D. In view thereof, the purpose of the notice under section 50 of the NDPS Act stood satisfied. Even if the luggage of the accused was not specifically described as 'black coloured bag' but as 'samaan', the same, in the opinion of this Court, can at best be said to be an irregularity and not an illegality which could cast any doubt on the case of the prosecution regarding compliance of section 50 of the NDPS Act. Reliance placed by Ld. Counsel for the accused on the case of Sanjeev & Anr Vs State of Himachal Pradesh (supra) is misconceived as in the said case in para 9 of the judgment the Hon'ble Supreme Court had observed that the original record upon verification revealed that no option or choice was given to the person accused before personal search was undertaken which is not so in the present case before this Court.
58. Another submission made was that as per the evidence of PW-3, PW-4 and PW-12, no advance arrangement had been made for a Gazetted Officer or Magistrate had the accused required his personal search to be carried out in the presence of such an official. The said submission is hypothetical. The accused refused to avail of his right to be searched in the presence of a Magistrate or Gazetted Officer. This submission thus has no merit and is rejected.
59. It was submitted that as per the evidence of PW-3, PW-4 and PW-12 the recovered substance was of matmaila colour while the FSL report records the colour of the substance forwarded to it for forensic examination as brown. Reliance was placed by Ld. Counsel for the accused on the case of Naresh Bahadur Sahi Vs State of Himachal Pradesh (supra). The meaning of matmaila is basically colour of soil. Soil is generally brown in colour. As such, the description of the colour of the recovered substance by the said State Vs Raj Kumar @ Raju FIR No. 106/2015 P.S. Crime Branch-East Delhi Page No. 34 of 39 witnesses is not in contradiction to the colour of the said substance recorded in the FSL report. Reliance was placed on the case of Naresh Bahadur Sahi Vs State of Himachal Pradesh (supra) is again of no help as in the said case, the colour of the bag stated in the Panchnama was blue but the bag when produced in the Court was of light green colour. In the present case the colour of the substance recovered stated by witnesses and as per the FSL report are the same.
60. It was submitted that as per the recovery memo Ex.PW3/E and charge-sheet, the black coloured bag found with the accused contained a towel but there is no reference to recovery of towel in the evidence of PW-3, PW-4 and PW-12. In this regard, perusal of the seizure memo of heroin Ex.PW3/E records that when the black bag was opened, it contained an Aasmani coloured polythene packet in which there was a towel, jeans pant, T- shirt and underneath the same, there was a green coloured polythene packet containing another transparent polythene packet. The seizure memo Ex.PW3/E does record presence of a towel in the black coloured bag. In the statements made by PW-3, PW-4 and PW-12 in their examination in chief, all the three witnesses deposed that the bag had a blue / sky coloured polythene containing cotton, one jeans pant, one T-shirt and underneath the same one green coloured polythene containing a transparent polythene. The statements made by these witnesses in the Court are fairly accurate when it comes to the sequence in which articles described in the seizure memo Ex.PW3/E were found. There is omission of mention of presence of a towel. It is to be seen that the recovery was made on 17.07.2015. PW-3 and PW-4 were examined on 23.09.2016 while PW-12 was examined on 01.08.2019. There is a possibility that exact details of contents of a bag containing multiple articles State Vs Raj Kumar @ Raju FIR No. 106/2015 P.S. Crime Branch-East Delhi Page No. 35 of 39 may have been forgotten by the witnesses due to lapse of time. However, the evidence of PW-3, PW-4 and PW-12 on other material aspects of the investigation is consistent with the version of the prosecution. Thus, the omission in mentioning presence of towel, in the opinion of this Court is not so grave so as to render such omission fatal to the case of the prosecution.
61. Submission was made that the site plan does not record the place of recovery of heroin from the accused. The site plan in this case is Ex.PW3/F. Point B on the same is the spot at which the raiding team had come along with the secret informer under the flyover, Ghazipur roundabout going towards Delhi. As per the evidence of PW-3, PW-4 and PW-12, it was at point B where the secret informer pointed out the accused after which the police team went in their gypsy, turned from the roundabout and went to point A on the site plan and apprehended the accused. None of the witnesses have stated that the search of the accused was carried out at any other place. In such circumstances, it would be at point A where recovery was made from the accused and not some other place not mentioned in the site plan.
62. It was submitted that there was inconsistency in the statements of PW-3, PW-4 and PW-12 regarding as to their sitting positions in the police gypsy when they were going for the raid. On this aspect, SI Shiv Darshan PW-3 in his cross-examination has deposed that he was sitting on the front passenger seat, HC Sanjeev and HC Om Prakash were sitting behind them with the secret informer. PW-4 HC Sanjeev in his cross-examination has said that he was sitting behind the driver seat, PW-12 HC Om Prakash was sitting on the left side and the secret informer was sitting in between while the gypsy was being driven by HC Narender and SI Shiv Darshan was sitting next to HC Narender. PW-12 HC Om Prakash in his cross-examination has deposed State Vs Raj Kumar @ Raju FIR No. 106/2015 P.S. Crime Branch-East Delhi Page No. 36 of 39 that HC Narender was driving the vehicle, he i.e. PW-12 HC Om Prakash was sitting on the rear seat with the secret informer and HC Sanjeev and IO was sitting in the front seat by the side of the driver. Perusal of the statements made by PW-3, PW-4 and PW-12 in their cross-examinations on this aspect does not give rise to any such contradiction as submitted by the Ld. Counsel for the accused.
63. It was submitted that there were contradictions between the statements of PW-3, PW-4 and PW-12 regarding place where writing work was done and memos prepared as well as the light used. It is to be seen that the accused was apprehended in the month of July at about 6:15 PM. Judicial notice can be taken that in the month of July in Delhi there is sufficient light at around 6:15 PM. Further, there is also lighting underneath the flyover over roundabout at Ghazipur intersection of NH-24. It therefore cannot be said that there was insufficient light. Evidence of the said three witnesses on this aspect is also not contradictory regarding light. All witnesses have said that some memo was prepared while using the bonnet of the vehicle while some was prepared while sitting inside the gypsy. This submission has therefore no merit and is rejected.
64. It was submitted that PW-3 in his evidence had deposed that the substance recovered was tested on 'weighing testing kit'. Perusal of examination in chief of PW-3 reveals that the same stands recorded in his examination in chief. The same also finds mention in the examination in chief of PW-4 and PW-12. It appears to this Court that the same is more of a human error committed at the time of recording of the examination in chief of the said witnesses rather than any contradiction. Reason for the same is that the said witnesses in their examinations in chief have deposed that they State Vs Raj Kumar @ Raju FIR No. 106/2015 P.S. Crime Branch-East Delhi Page No. 37 of 39 had left from the office of Narcotics Cell, Darya Ganj with inter alia, IO bag, field testing kit and electronic weighing machine. The field testing kit and the electronic weighing machine are separately found mentioned. Ex.PW3/E, seizure memo of heroin also records that the substance was tested using a field testing kit. Thus, this submission regarding use of 'weighing testing kit' for testing the recovered substance has no merit and is rejected.
65. It was submitted that the second IO PW-13/ SI Rajveer Singh did not make any effort or investigation to apprehend the supplier of the recovered heroin or the purchaser thereof. The secret information received in this case was that the accused would be bringing heroin from Bareilly and would be going to his home at Moti Nagar. PW-3 SI Shiv Darshan and PW- 13 SI Rajveer Singh have deposed that the accused did not disclose the address of his supplier whose name was disclosed as Abid resident of Bareilly and thus the said Abid could not be traced. They have also stated that the accused gave the name of one Deva resident of Sultan Puri who could not be traced despite efforts. Thus, there is evidence of these witnesses giving reasons as to why persons named by the accused could not be traced. Even otherwise, not apprehending persons named by the accused does not cast any doubt regarding apprehension of the accused and recoveries from him.
66. Submission was made that no public persons were joined with the investigation even though the accused was apprehended at a public place. Evidence of PW-3, PW-4, PW-12 and PW-13 reveal that efforts were made to join public persons with the investigation but none agreed and left before notices could be served upon them. It is thus not a case where no efforts were made. The evidence of the police witnesses in this case have been scrutinized State Vs Raj Kumar @ Raju FIR No. 106/2015 P.S. Crime Branch-East Delhi Page No. 38 of 39 with great care and detail. No major contradiction fatal to the case set up by the prosecution has been found by this Court.
CONCLUSION
67. Hence, for the reasons recorded above, this Court is of the opinion that the prosecution has proved beyond reasonable doubt that the accused Raj Kumar @ Raju @ Suman was found in possession of 1 kg of heroin on 17.07.2015 at 6:15 PM and is therefore guilty of the offence punishable under section 21 (c) of the NDPS Act. Accused Raj Kumar @ Raju @ Suman is convicted for the offence punishable under section 21 (c) of Digitally signed by the NDPS Act. REETESH REETESH SINGH Location:
Karkardooma SINGH Court Date: 2022.07.30 16:17:08 +0530 (Reetesh Singh) Special Judge NDPS East/KKD Courts/30.07.2022 Announced in open court on 30.07.2022 State Vs Raj Kumar @ Raju FIR No. 106/2015 P.S. Crime Branch-East Delhi Page No. 39 of 39