Delhi District Court
Sc No. 09A/10, State vs Mohammad Page No. 1 Of 33 on 29 April, 2016
IN THE COURT OF SH. A. K. KUHAR, SPECIAL JUDGE;NDPS
SOUTH DISTRICT, SAKET
SC No. 09A/10
FIR No. 200/2009
u/s 21, 29,61,85 NDPS Act
PS - Crime Branch
Computer ID No: 02403R0116412010
State
versus
Mohammad ..........accused
S/o Sh. Niamatullah
R/o VillageDand, District Kandhar,
Afghanistan.
Date of filing of charge sheet : 07.04.2010
Arguments concluded on : 28.03.2016
Judgment announced on : 29.04.2016
J U D G M E N T
1.0 Prosecution case, in brief, is that on 27.11.2009, a case was registered vide FIR no. 199/2009 u/s 21/29 of NDPS Act, PS Crime Branch. Investigation of the case was assigned to SI Naresh Sangwan (PW8), who was posted at Interstate Cell, PS Crime Branch, Chankya Puri. SI Naresh Sangwan (PW8) was joined in the investigation by Ct. Subhash (PW3), Inspector Sharat Chandra (PW10) and Ct. Joginder (PW16). SI Naresh Sangwan (PW8) had apprehended two accused SC No. 09A/10, State vs Mohammad page no. 1 of 33 namely, Mohd. Masoom and Raju Dawar from IGI Airport in FIR no. 199/2009. During the investigation of the said FIR, SI Naresh Sangwan (PW8) recorded disclosure statement of Mohd. Masoom and Raju Dawar. Mohd. Masoom was an Afghan National and he disclosed that he alongwith his friend Mohammad s/o Niyamatullah (accused in this case) usually came to India to supply Smack/Heroin and on 29.11.2009 also he alongwith Mohammad had boarded Ariana Afghan Airlines from Kandhar to Delhi with 7 kg of Heroin with each of them. However, on his suspicion, Mohammad managed to escape from the Airport while his other accomplice Raju Dawar was apprehended. He also disclosed that said Mohammad s/o Niyamatullah would be found available at Kabuli Hotel, Bhogal, Jungpura. A similar disclosure statement was made by Raju Dawar. SI Naresh Sangwan (PW8) recorded disclosure statement of Mohd. Masoom and his accomplice Raju Dawar in FIR no. 199/2009 vide Ex. PX1 and Ex. PX2 respectively.
1.1 SI Naresh Sangwan (PW8) noted down this information provided by accused Mohd. Masoom and Raju Dawar (both accused in case FIR no. 199/09) and sent the information (Ex. PW6/B) to Sh. Rajender Bakshi, ACP and he also telephonically conveyed the information to him. Sh. Rajender Bakshi, ACP (PW11) directed him to take necessary action. SI Naresh Sangwan (PW8) also sent the SC No. 09A/10, State vs Mohammad page no. 2 of 33 information u/s 42 NDPS Act vide Ex. PW6/B to Sh. Rajender Bakshi, ACP (PW11) through SI Braham Prakash (PW2), where it was put up before the ACP concerned, after making necessary entry in the dak register.
1.2 Thereafter, SI Naresh Sangwan (PW8) alongwith his team of Police officials and both the accused (in case FIR no. 199/09) namely Mohd. Masoom and Raju Dawar entered Hotel Kabuli, Bhogal, Jungpura and on inquiry, it was revealed that one Mohammad is staying in room no. 14. He asked some public persons to join the Police party but none of them agreed. Thereafter, SI Naresh Sangwan (PW8) alongwith Police party and both the accused namely, Mohd. Masoom and Raju Dawar (in FIR No. 199/2009) alongwith hotel staff entered into the room no. 14. The room was not bolted from inside and on opening and entering the room, accused Mohammad was found sitting on the bed with his suitcase in his lap and he was identified by Mohd. Masoom (accused in FIR no. 199/2009). Accused was told about the purpose of visit and about the disclosure made by Mohd. Masoom. Accused Mohammad was apprised of his legal rights that if he desire, his search could be taken in the presence of a Gazetted Officer or a Magistrate. He was also given option to search the Police party. A Notice u/s 50 of NDPS Act (Ex. PW4/PA) was served upon accused. Accused was not conversant to write English SC No. 09A/10, State vs Mohammad page no. 3 of 33 and Hindi language, though he understood the Hindi language. Accused had refused to opt for his search before a Gazetted Officer or a Magistrate and his reply (Ex. PW8/B) was reduced into writing on the carbon copy of Notice u/s 50 of NDPS Act by SI Sharat Chandra (PW10).
1.3 Thereafter, SI Naresh Sangwan (PW8) conducted the search of the accused as well as of the suitcase, which was found in his possession. The suitcase was opened by the lock code '000', as told by the accused. It was found containing 34 pathani suits and passport of the accused (Ex. PW4/E1), air ticket (Ex. PW4/E2) and some other documents. The weight of the suitcase was found abnormal, considering the articles carried in the same. SI Naresh Sangwan (PW8) became suspicious and he broke the lower portion of the suitcase with the help of a plier. It was found that one polythene of black and yellow colour was concealed in a false cavity created in the lower portion of the suitcase. This polythene was containing some brownish colour powder. This brown colour powder smelled like smack/heroin. The said brown powder alongwith polythene was weighed with the help of electronic machine and its total weight was 7 kg 400 grams. SI Naresh Sangwan (PW8) took two samples of 50 grams each from the polythene and kept in two separate small transparent polythenes and converted them into cloth SC No. 09A/10, State vs Mohammad page no. 4 of 33 parcels and gave serial no. S1 and S2 to them. Remaining smack/heroin was put back in same polythene and it was also converted into cloth parcels and given serial no. R. The sample parcles and the parcel of the case property were sealed with the seal of 'VS'. FSL form was also filled up by SI Naresh Sangwan (PW8) and affixed seal of 'VS'. SI Naresh Sangwan prepared seizure memo (Ex. PW8/C) of the three sealed parcels and FSL form.
1.4 The suitcase was also kept in cloth parcel alongwith contents of the suitcase i.e. pathani suits etc., were kept in the suitcase itself. This parcel was also sealed with the seal of 'VS' and it was seized vide memo (Ex. PW8/D). The seal after use was handed over to Inspector Sharat Chandra (PW10).
1.5 During the proceedings, Sh. Rajender Bakshi, ACP (PW11) also reached the spot and he was apprised about the proceedings conducted and articles seized from the accused and kept in sealed parcels were produced before him.
1.6 Thereafter, SI Naresh Sangwan (PW8) prepared a rukka (Ex. PW8/E), which was handed over to SI Sharat Chandra (PW10) for registration of the case. Sealed parcels of sample as well as remaining smack/heroin, FSL form and carbon copy of seizure memo were also given with direction to hand over the same to SHO, PS Crime Branch SC No. 09A/10, State vs Mohammad page no. 5 of 33 and rukka to Duty Officer. Inspector Sharat Chandra (PW10) alongwith Ct. Joginder Singh (PW16) reached the office of PS Crime Branch and handed over rukka to HC Chand Ram (PW1), on the basis of which, the FIR No. 200/09 (Ex. PW1/A) was registered and on which the endorsement was made by HC Chand Ram vide (Ex. PW1/B). The parcels and the documents were handed over to SHOInspector Akshay Kumar (PW7), who affixed his seal 'AK' on the parcels as well as FSL form. He handed over parcels and documents to HC Chand Ram (PW1), who was MHC (M) at PS Crime Branch. HC Chand Ram (PW1)deposited the parcels in the malkhana and made relevant entry in register no. 19 (Ex. PW1/C).
1.7 After registration of the FIR, further investigation of the case was assigned to SI Vijender Singh (PW17), who alongwith Ct. Ravi Prakash (PW4) and Ct. Rajesh (PW12) reached the spot. SI Vijender Singh (PW17) prepared site plan of the spot (Ex. PW3/DA). 1.8 Accused Mohammad was arrested by SI Vijender Singh (PW17) vide arrest memo (Ex. PW4/A). He also conducted his personal search (Ex. PW4/B). He also recorded disclosure statement of the accused vide memo (Ex. PW4/C). SI Vijender Singh (PW17) also examined and recorded statement of Sukhbir Singh (PW5), owner of Hotel Kabuli and obtained the copy of licence of the hotel which is (Ex.
SC No. 09A/10, State vs Mohammad page no. 6 of 33 PW4/E3); copy of guest register of the hotel (Ex. PW4/E4) and seized them vide memo (Ex. PW4/D). Inspector Vijender Singh (PW17) also prepared information/report u/s 57 of NDPS Act to Sh. Rajender Bakshi, ACP vide (Ex. PW6/D).
1.9 During the further investigation, SI Vijender Singh (PW17) also collected the passenger's list and general declaration, outward and inward from Ariana Afghan Airlines vide (Ex. PW15/A6 & A7 and Ex. PW1/A1 to A5) with regard to visit of accused Mohammad to India. 1.10 On 08.02.2010, SI Vijender Singh (PW17) sent one sealed sample parcel to FSL, Rohini alongwith FSL form through ASI Om Prakash (PW9). As per FSL report (Ex. PW17/C) given by Dr. Madhulika Sharma, Asstt. Director (Chemistry) and the contents of the sample were found to be Diacetylmorphine to the extent of 26.5%. After completing the investigation, charge sheet has been filed against the accused Mohammad.
2.0 The accused was put to trial for the offence under Section 21 (c) of NDPS Act. The charge was framed on 23.08.2010 against him on the allegations that on 27.11.09 at 4:30 am, he was found in possession of 7.400 Kg of Heroin at Kabuli Hotel, Jungpura, Delhi. The accused pleaded not guilty and claimed trial.
3.0 The prosecution examined following witnesses to prove its SC No. 09A/10, State vs Mohammad page no. 7 of 33 case against the accused : 3.1 PW1 is HC Chand Ram. He was Duty officer (D.O.), who
had received the rukka and registered the FIR Ex. PW1/A. He was also working as MHC(M), on 26.11.09 when Inspector Akshay Kumar had deposited the parcels with him, which he deposited in the Malkhana vide entry no. 532 in the register no. 19 Ex. PW1/C. On 08.12.2009, he had sent the sealed sample pullinda to FSL, Rohini through HC Om Prakash vide Road Certificate Ex. PW1/D. 3.2 PW2 is SI Braham Singh. He was the member of raiding team constituted for investigation of FIR No. 199/09, PSCrime Branch. He accompanied SI Naresh Sangwan to the Airport. He is a witness to the disclosure statement made by accused Mohd. Masoom in FIR No. 199/09. His role in the present case is that the information under Section 42 of NDPS Act was sent to the ACP concerned by SI Naresh Sangwan through him.
3.3 PW3 is Ct. Subhash. He had accompanied SI Naresh Sangwan in the investigation of the present case as well as the investigation of FIR No. 199/09, PSCrime Branch He has deposed about the recording of the disclosure statement of Mohd. Masoom in FIR No. 199/09 and apprehension of the accused Mohammad from Kabuli Hotel, Bhogal, Jungpura and the recovery of Heroin from his possession, SC No. 09A/10, State vs Mohammad page no. 8 of 33 which was concealed in a suit case.
3.3.1 It is pertinent to mention here that despite the fact that this witness has been a part of investigation, was unable to identify the accused in the Court. Although in the crossexamination by the Ld. Additional Public Prosecutor when the accused was pointed out to the witness, he identified him.
3.4 PW4 is Ct. Ravi Prakash. He had accompanied SI Vijender Singh and has been a part of investigation after registration of FIR. He has deposed about the preparation of arrest memo Ex. PW4/A, personal search memo Ex. PW4/B and disclosure statement of the accused Ex. PW4/C. He has also been crossexamined by Ld. Additional Public Prosecutor.
3.5 PW5 is Sh. Sukhbir Singh. He is the owner of Kabuli Hotel, Bhogal, Jungpura. He has deposed that the police officials had arrived at his hotel in the late night i.e. before 12:00 Midnight. He deposed that he did not see recovery of incriminating material from the bag or room of the accused.
3.6 PW6 is Ct. Shiv Prasad. He was the Reader to ACP, ISC, Crime Branch, Chanakya Puri. He deposed that the information under Section 42 of NDPS Act was received by him. He noted the information in Diary vide Ex. PW6/A. He also deposed about the receipt of SC No. 09A/10, State vs Mohammad page no. 9 of 33 information under Section 57 of NDPS Act, vide Ex. PW6/D, for which he made necessary entry in the register vide Ex. PW6/C. 3.7 PW7 is Inspector Akshay Kumar. He was SHO of PS Crime Branch. He deposed about receipt of sealed pullindas marked as R, S1, S2 with the FSL form and two carbon copies of seizure memo. He deposed that he had put his seal on the parcels and FSL form and deposited the same with the MHC(M) HC Chand Ram (PW1), who made entry in the register no. 19. He deposed that he had signed on register no. 19 Mark X1 at point A. He also made Roznamcha entry Ex. PW7/A. 3.8 PW8 is SI Naresh Sangwan, IO of the case. He was assigned the investigation of FIR No. 199/09, PSCrime Branch. During the investigation of the said FIR, he had recorded the disclosure statement of Mohd. Masoom and Raju Dawar, pursuant to which he had conducted a raid at Kabuli Hotel, Bhogal, Jungpura alongwith other police officials and apprehended the accused with Heroin. 3.9 PW9 is ASI Om Prakash. He had taken the sample from the MHC(M) with FSL form and deposited the same with the FSL on 08.12.2009.
3.10 PW10 is Inspector Sharat Chandra. He had accompanied SI Naresh Sangwan for the investigation in FIR No. 199/09. Later on he also accompanied SI Naresh Sangwan in the investigation of the present SC No. 09A/10, State vs Mohammad page no. 10 of 33 case. After the recovery was effected, he was handed over a sealed parcel, seizure memo, FSL form, which he had handed over to Inspector Akshay Kumar in the office of PSCrime Crime Branch, Nehru Place. 3.11 PW11 is Sh. Rajender Bakshi, ACP, Crime Branch. He has deposed that in the night of 2627.11.09 at 4:30 am, he had received a telephonic call whereby he was informed by SI Naresh Sangwan that during investigation of FIR No. 199/09, the accused Mohd. Masoom has disclosed that his accomplice namely Mohammad (the accused in the present case) had slipped away and would be found at Kabuli Hotel, Bhogal, Jungpura. He also deposed about receipt of the information under Section 42 of the NDPS Act. He also deposed that he had also reached Kabuli Guest House, Bhogal, Jungpura, where he met SI Naresh Sangwan and SI Sharat Chandra. As per his statement, recovery and seizure proceedings had already been conducted when he reached there.
3.12 PW12 is Ct. Rajesh Kumar. This witness at the very outset deposed contrary to the prosecution case and he was declared hostile at initial stage of his examination itself. In the crossexamination by the Ld. Additional Public prosecutor, he has given a parrot like statement accepting all the suggestions of the Ld. Additional Public Prosecutor.
SC No. 09A/10, State vs Mohammad page no. 11 of 33 3.13 PW13 is HC Jaleshwar. He was the Duty Officer (D.O.) at PSCrime Branch, New Delhi. 3.14 PW14 is Ct. Ashok Kumar. He was posted as Duty officer
(D.O.), Crime Branch, Chanakya Puri, New Delhi, from 8:00 pm of 26.11.2009 to 8:00 am of 27.11.2009.
3.15 PW15 is Sh. Rajesh Kumar, Traffic Supervisor, Ariana Afghan Airlines. He had supplied documents Ex. PW15/A1 to Ex. PW15/A7 to show that the passenger by the name of Mohammad had boarded the flight from Kandhar and came to Delhi on 26.11.2009 as per entry in the list of passengers at serial no. 20 on the Ex. PW15/A6. 3.16 PW16 is Ct. Jogender. He was also a member of the investigating team in FIR No. 199/09 and he had accompanied SI Naresh Sangwan at Kabuli Hotel, Bogal, Jungpura, for investigation of the present case. He had taken the rukka to the PS for registration of the FIR.
3.17 PW17 is SI Vijender Singh. He was assigned the investigation of the present case. After registration of the FIR, he had arrested the accused, recorded his disclosure statement and also sent the information under Section 57 of NDPS Act to ACP concerned. He deposed that he had sent the sample to FSL on 08.12.2009 and he collected the report and filed in the Court. He has placed the result Ex.
SC No. 09A/10, State vs Mohammad page no. 12 of 33 PW17/C. He deposed that during the investigation, he had verified the travel documents of the accused Mohammad and obtained the verification report Ex. PW17/E and Ex. PW17/F. 4.0 The statement of the accused was recorded under Section 313 Cr.P.C. and the incriminating evidence was put to him, which he denied false and incorrect. He had taken the plea that he was picked up from the Kabuli Hotel, Bhogal, Jungpura, and falsely implicated in the present case. He deposed that he was taken to the hotel by the driver of the cab, which he had taken from the International Airport. He also stated that he was sleeping in his room when at around 11:00 pm, some persons knocked the door of his room, they entered his room and had taken him alongwith them and implicated him in the present false case. It is stated that no Smack/Heroin was recovered from his suit case and his thumb impressions were taken on number of blank papers. The accused, however, has not preferred to lead evidence in his defence. 5.0 I have heard the arguments of the Ld. Additional Public Prosecutor for State, the Ld. defence counsel Sh. Kamal J.S. Mann for the accused. I have perused the evidence on the record and the documents carefully.
6.0 The Ld. Additional Public Prosecutor has argued that the prosecution case stands proved from the statements of official witnesses SC No. 09A/10, State vs Mohammad page no. 13 of 33 as the statements of these official witnesses are consistent and cogent. He argued that in the present case, a recovery of 7.5 Kg. of Heroin has been effected from the possession of accused, which he was carrying in suit case when he travelled from Afghanistan to India. He argued that all the required precautions have been taken at the time of apprehension of accused. The accused was apprised of his legal right of search in the presence of a Gazetted Officer or a Magistrate. However, the accused did not opt to be searched in the presence of a Gazetted Officer or a Magistrate. He further argued that the accused was carrying the Heroin in the false cavity created in the suit case. It is submitted that the samples were taken at the spot, which were sealed by Inspector Naresh Sangwan. The samples were deposited with the MHC(M) after they were produced before the SHO of PSCrime Branch, who also affixed his seal on the samples. He also submitted that the samples alongwith FSL form were sent to the FSL on 08.12.2009 and as per the report of the FSL, the samples were found positive for Diacetylmorphine with the percentage of 26.5. Ld. Additional Public Prosecutor has argued that the prosecution case stands proved from the the statement of witnesses. There are no contradictions in the statements of witnesses. He argued that there is no motive or reason for the police officials to falsely implicate the accused persons. Therefore, the statement of official witnesses should be SC No. 09A/10, State vs Mohammad page no. 14 of 33 believed.
7.0 On the contrary the defence counsel has argued that there is no compliance with the statutory provisions. He argued that the search has been conducted after the Sunset and before the Sunrise, but there was no search authorization or search warrants. He argued although as per the prosecution case, the ACP Rajender Bakshi (PW11) also reached the spot, but by that time the alleged recovery had already taken place and the case property was seized. He argued that there is no record whether any search authorization was obtained by SI Naresh Sangwan before the search. He also argued that even otherwise, the prosecution case has not been proved beyond reasonable doubt. He submitted that PW3 Ct. Subhash and PW12 Ct. Rajesh Kumar have failed to identify the accused in the Court. This makes their presence at the spot doubtful. He also argued that the present case is in continuation of FIR No. 199/09 of PSCrime Branch, in which two accused namely Raju Dawar and Mohd. Masoom were arrested and had given their statement with regard to the escape of the present accused Mohammad from the Airport and his lodging in Kabuli Hotel, Jungpura. He argued that the accused were convicted in FIR No. 199/09. However, in the Appeal against conviction, the Hon'ble High Court vide its order dated 09.04.2015 has acquitted Mohd. Masoom and Raju Dawar. (The copy of SC No. 09A/10, State vs Mohammad page no. 15 of 33 the judgment in Criminal Appeal No. 1404/2011 decided on 09.04.2015 has been received in the Court from the Hon'ble High Court and the copy thereof has also been filed by the Ld. counsel for accused.) It is submitted that as per the prosecution case, the official vehicle was used to commute from Airport to Kabuli Hotel, Jungpura, but neither the registration number of the vehicle is mentioned in the charge sheet, nor any logbook of the vehicle has been produced. He also submitted that the recovery has been effected allegedly by SI Naresh Sangwan, but surprisingly he is using the seal with the initial of VS. He submitted that SI Vijender Singh is the second IO of the case having initial of VS, but he has denied that the seal belongs to him. He also argued that no public witness has been joined at the time of an alleged recovery from the possession of the accused. The employees of the hotel have not been joined at the time of recovery. He argued that the entire prosecution case is doubtful and therefore, the accused be given benefit of doubt. 8.0 The present case is a sequel to the case registered vide FIR No. 199/09 at PSCrime Branch. The accused in said case were convicted in S.C. No. 02/2/10. The Appeal No. 1404/2011 was filed against the judgment dated 30.06.11. While deciding the Appeal, the Hon'ble High Court had requisitioned file of the present case. The Hon'ble High Court acquitted both accused in S.C. No. 02/2/10. These SC No. 09A/10, State vs Mohammad page no. 16 of 33 details are being noted from the requisition letter of Hon'ble High Court received in this Court and copy of judgment in Crl. Appeal No. 1404/2011 dated 09.04.2015 filed by defence counsel.
9.0 The facts of the said case are necessary to be looked into, which are noted in judgment dated 09.04.2015 in Crl. Appeal no. 1404/2011. On 26.11.09 at around 9:30 am, Inspector Sunil Kumar, Crime Branch, had received an information to the effect that one Raju would receive a huge consignment of drug from an Afghan national, who would arrive at Indira Ganghi International (I.G.I.) Airport at 1:00 pm by Ariana Airlines. Pursuant to this information a team was constituted headed by Inspector Sunil Kumar. They reached I.G.I. International Airport Terminal2. The flight was delayed and it landed at Airport at around 7:30 p.m. The person named in the information namely Raju, who was identified by the informer when he earlier arrived at Airport at 11:30 a.m. was seen alongwith a person namely Mohd. Masoom around 7:40 p.m. The said Mohd. Masoom was carrying a brief case. When the said Raju and Mohd. Masoom were about to sit in the car brought by Raju, they were intercepted. After the registration of FIR No. 199/09, the investigation was assigned to SI Naresh Sangwan, who recorded the disclosure statement of accused Mohd. Masoom and accused Raju in FIR No. 199/09. Accused Mohd. Masoom in his disclosure statement Ex.
SC No. 09A/10, State vs Mohammad page no. 17 of 33 PX1 and accused Raju in his disclosure statement Ex. PX2 (both the statements were admitted by the accused on 24.10.2013 through his counsel Sh. Kamal J.S. Mann) have stated that one more person namely Mohammad had come from Afghanistan. However, he has escaped from the Airport and went to Kabuli Hotel, Bhogal, Jungpura. On the basis of these disclosure statement, S.I. Naresh Sangwan raided Hotel Kabuli in Jangpura and apprehended the accused. He prepared rukka and got fresh FIR registered vide no. 200/09. However, the Court fails to understand why there was a need for registration of a separate FIR after the alleged recovery has been made from the accused Mohammad. This alleged recovery could have been shown in FIR No. 199/09. Without going into this technical issue, the Court would like to concentrate on the evidence which has been collected in the present case and the compliance of statutory provisions of NDPS Act.
10.0 It is the settled position of law that in criminal cases, the prosecution has to prove its case beyond all shadows of reasonable doubt and in case under the NDPS Act is strict compliance of statutory provisions is required.
11.0 Sections 41 and 42 of NDPS Act are statutory provisions, which safeguard the interest of an accused and also acts as a check on the false implication of persons under NDPS Act. The Ld. defence SC No. 09A/10, State vs Mohammad page no. 18 of 33 counsel had argued that there is no compliance with the statutory provisions as there was no search authorization before the search was effected in the present case. To understand the arguments of Ld. defence counsel, it would be appropriate to understand the law contained in Section 41 and 42 of NDPS Act.
12.0 Section 41 of the NDPS Act deals with the powers to issue a warrant and authorization for search of any building or conveyance etc for recovery of such contraband substances. Under subsection (1) of Section 41 of the above said Act, a Magistrate of a given class has been empowered to issue a warrant for the arrest of any person whom he has reason to believe to have committed any offence under the above Act or a warrant for the search of any building, conveyance or a place etc, whether by day or by night, in which he has reason to believe that any narcotic drug or psychotropic substance etc, in respect of which an offence punishable under the above Act has been committed, or any document or article etc, which may furnish evidence of the commission of such offence, is kept or concealed. Under subsection (2) of Section 41 of the said Act, a Gazetted Officer of some given departments, including the DRI, as may be empowered in this behalf by a general or special order issued by the State or Central Government, has been empowered to issue an authorization for arrest of such a person or the search of such SC No. 09A/10, State vs Mohammad page no. 19 of 33 a building or conveyance etc if he has reason to believe, from his personal knowledge or information given by any person and taken down in writing, that any person has committed such an offence or any such narcotic drug or psychotropic substance etc is lying concealed in such a building or conveyance etc and as per this subsection the above authorization has to be made to any officer subordinate to him, but superior in rank to a peon, sepoy or constable etc. In terms of sub section (3) of the above Section, the officer who issues such warrant or authorization and the officer to whom the same is issued shall both have all the powers of an officer acting U/S 42 of the said Act. 13.0 Section 42 of the NDPS Act deals with the powers of entry, search, seizure and arrest etc without a warrant or authorization and sub section (1) thereof provides that if an empowered officer of a given rank, i.e. above the rank of peon, sepoy or constable etc, of the departments as stated above, has reason to believe from his personal knowledge or information given by any person and taken down in writing, that any such narcotic drug or psychotropic substance etc is being transported or concealed in any building or conveyance etc then he can enter into and search such building, conveyance or place etc and seize such drug or substance and he can also detain, search and also arrest, if he thinks proper, any person whom he has reason to believe to have committed an SC No. 09A/10, State vs Mohammad page no. 20 of 33 offence punishable under the above Act. However, the above power of search, seizure and arrest can be exercised by him before sunset and after sunrise only and for effecting the search or seizure etc between the sunset and sunrise, a search warrant or authorization, as mentioned in Section 41 of the NDPS Act, is required by him in his favour, unless, as provided by the proviso to the above subsection (1), such officer has reasons to believe that a search warrant or authorization cannot be obtained without affording an opportunity for the concealment of evidence or facility for the escape of an offender and in such an urgency he can even effect such search, seizure and arrest etc between sunset and sunrise, provided further that he had recorded the grounds of his above belief for doing the same. As per subsection (2) of Section 42 NDPS Act, a copy of the above information or the grounds of belief taken down in writing by such an officer has to be sent by him to his immediate superior official within 72 hours. Under both the above Sections 41 and 42 of the NDPS Act, if the source of the information is not the personal knowledge of the person receiving it, then the same is required to be reduced into writing.
14.0 Thus, as per Section 42 of the Act, the time of search and seizure is important. If search is to be conducted between Sunset and Sunrise, then search authorisation/warrant is required. Coming to the SC No. 09A/10, State vs Mohammad page no. 21 of 33 present case, it may be noted that SI Naresh Sangwan had recorded the statement of the accused Mohd. Masoom and accused Raju Dawar in FIR No. 199/09, in which they disclosed that a person namely Mohammad who had come alongwith Mohd. Masoom from Afghanistan, is lodged in Kabuli Hotel, Jungpura and is possessing the contraband i.e. Heroin. SI Naresh Sangwan communicated this information to ACP vide intimation under Section 42 of NDPS Act, Ex. PW6/B. The perusal of Ex. PW6/B would show that it does not bear the time when it was written or when it was sent to office of ACP The disclosure statement Ex. PX1 and PX2 of Mohd. Masoom and Raju Dawar also would not show at what time they were written. The intimation under Section 42 of NDPS Act Ex. PW6/B was received in the office of ACP and it was diarised in the register vide entry no. 896 on 26.11.2009. Conspicuously the time of receipt of the information is not mentioned in entry no. 896 Ex. PW6/A. SI Naresh Sangwan when appeared in the witness box as PW7, is also silent about time when he reached Kabuli Hotel, Jungpura. However, PW3 Ct. Subhash, who alongwith SI Naresh Sangwan, SI Sharat Chandra and Ct. Jogendra had gone to Kabuli Hotel, Bhogal in his statement has deposed that at about 4:15 am, they reached Kabuli Hotel. He deposed that the Receptionist told that a person namely Mohammad was staying in the room no. 14 of the Hotel. They opened the door of the SC No. 09A/10, State vs Mohammad page no. 22 of 33 room and found that the accused was sitting on the bed having a black colour suit case. He was identified by Mohd. Masoom (in case FIR No. 199/09) as the same person, who had come with him from Afghanistan. So, it is apparent that the accused Mohammad was apprehended and his bag was allegedly searched between Sunset and Sunrise. Section 42 of NDPS Act empowers an officer described therein, that if obtaining search warrants or search authorization will offer an opportunity for the concealment of the evidence or escape of an offender, he may enter and search a building, conveyance or vehicle at any time between Sunset and Sunrise after "recording the ground of his belief". Section 42 (2) of NDPS Act provides that when such grounds for belief have been recorded, they have to be conveyed to the senior officer within 72 hours. But in the present case, there is no such "belief" recorded by SI Naresh Sangwan (PW8), nor be has obtained any search authorisation before search of bag of accused.
15.0 So far as the compliance of the first part of Section 42 (1) of NDPS Act is concerned, SI Naresh Sangwan has reduced the information received by him during the disclosure statement of Mohd. Masoom and Raju Dawar (accused in FIR No. 199/09) regarding the accused, but the Provisio to Section 42 (1) of NDPS Act makes search warrants and authorization mandatory for search between Sunset and SC No. 09A/10, State vs Mohammad page no. 23 of 33 Sunrise. In case search authorization cannot be obtained, the then officer has to record his "reasons of belief" why an immediate search and seizure is required. Neither all these two conditions have been fulfilled by the prosecution in the present case.
16.0 The Ld. Additional Public Prosecutor had argued that the ACP Rajender Bakshi was informed by SI Naresh Sangwan (PW8) regarding the information telephonically. However, the Ld. Additional Public Prosecutor could not produce any record of any such conversation. PW11 ACP Rajender Bakshi in his statement has deposed that SI Naresh Sangwan informed him about the disclosure statement of Mohd. Masoom in FIR No. 199/09 and he sent the information in writing under Section 42 of NDPS Act. However, he has nowhere stated that he authorized SI Rajender Bakshi to conduct the search and seizure. Although as per prosecution case, ACP Rajender Bakshi (PW11) reached the spot, but admittedly by that time, the proceedings of search and seizure had already been concluded. PW11 has deposed that SI Naresh Sangwan had produced before him some sealed parcels containing recovered smack and the samples, meaning thereby whatever recovery was effected, it has already been sealed. Therefore, I found a total noncompliance with the statutory provisions of Section 41 and 42 of NDPS Act in the present case. It has been observed by Hon'ble SC No. 09A/10, State vs Mohammad page no. 24 of 33 Supreme Court in Kishan Chand vs. State of Haryana 2013 I AD (SC) 39 that provision like Section 42 or 50 of the Act are the provisions which require exact and definite compliance as opposed to the principle of substantial compliance. Once, there is total noncompliance and these provisions being mandatory in nature, the prosecution must fail. 17.0 Admittedly, the present case is based on the statement of official witnesses. There is no rule of law which commands that the statement of official witnesses cannot be accepted without independent corroboration but statement of prosecution witnesses must be cogent, coherent and consistent. They must inspire confident and rule out any false implication and manipulation of record. During the investigation number of documents are prepared. If any manipulation is indicated in preparing the documents, then either it is explained by the prosecution or its benefit would go to the accused.
18.0 Coming to the present case, SI Naresh Sangwan (PW8) has deposed that he had sent the case property, samples and the FSL form, a carbon copy of seizure memo Ex. PW8/C to the SHO of PS Crime Branch through SI Sharat Chandra alongwith rukka Ex. PW8/E, which was to be handed over to the Duty Officer. He had deposed in his statement that he had sealed all the pullindas with the seal of VS. PW7 Inspector Akshay Kumar was the SHO of PSCrime Branch on SC No. 09A/10, State vs Mohammad page no. 25 of 33 27.11.2009. He deposed that when he was present in the office on 27.11.2009, he received four parcels sealed with seal of VS and FSL form having the seal of VS and two carbon copies of seizure memo. He put his initials of AK on the same. He called HC Chand Ram MHC(M) (PW1) along with register no. 19 in his office. He handed over the parcels to MHC(M), who made endorsement to this effect in register no. 19 and he appended his signatures also. PW7 Inspector Akshay Kumar had placed on record a copy of register no. 19 "Mark X1". He also recorded a DD No. 3 in the Roznamcha vide Ex. PW7/A. The perusal of the copy of register no. 19 Mark X1 would show that it bears the signatures of Inspector Akshay Kumar in column no. 3 with the date underneath as "28.11.09". This copy of the register no. 19 also has endorsement dated 08.12.2009 by the MHC(M) regarding sending of the sealed pullinda to FSL through HC Om Prakash. This endorsement of the MHC(M) does not have the signatures of the HC Om Prakash in token of receipt of the samples. The manipulation becomes apparent when the statement of HC Chand Ram is considered. HC Chand Ram (PW1) was initially examined on 24.09.2010 and he deposed that the pullindas were deposited vide entry no. 532 Ex. PW1/C. The original register brought on 24.09.2010 in the Court was seen and returned. The perusal of the copy of the register no. 19 Ex. PW1/C shows some SC No. 09A/10, State vs Mohammad page no. 26 of 33 manipulation. The signatures of Inspector Akshay Kumar appear at the same place in column no. 3, but the date is now changed. Now the date is altered to "27.11.09". It is also pertinent to note that the endorsement dated 08.12.2009 regarding sending of the sample to the FSL made by HC Chand Ram also bears the signatures there under of HC Om Prakash. PW1 HC Chand Ram when crossexamined by the defence counsel stated that HC Om Prakash had put his signatures in register no. 19 on 08.10.2009. During the crossexamination of PW1, which was done on 04.05.2012, PW1 had produced a fresh copy of register no. 19, which was placed on record Ex. PW1/DA. In this copy also the date appearing under the signatures of Inspector Akshay Kumar is 27.11.09 and the endorsement date 08.12.2009 also has signatures of HC Om Prakash. HC Om Prakash when examined as PW in the Court has categorically denied having put his signatures in register no. 19 at the time of receiving of the pullinda.
19.0 Thus, some manipulation with the documents is apparent on the record. When and why date under the signature of PW7 was changed? The law is well settled that prosecution has to rule out any tampering with the seal or the samples till they reach the FSL. In the present case the possibility of tampering cannot be ruled out in view of the apparent manipulation of the record. The copy of the register no. 19 SC No. 09A/10, State vs Mohammad page no. 27 of 33 Mark X1 produced by the prosecution bears the date 28.11.2009 under the signatures of Inspector Akshay Kumar and there is no signature of HC Om Prakash under the endorsement dated 08.12.2009, but surprisingly his signatures appear in Ex. PW1/C and Ex. PW1/DA and the date underneath the signatures of Akshay Kumar also got changed to 27.11.2009.
20.0 Entire prosecution case is based on the statement of official witnesses and has no corroboration from independent witness. Therefore, the statement of prosecution witnesses has to be unimpeachable in character. PW3 Ct. Subhash has deposed that the Receptionist at Hotel had accompanied the police officials to the room of the accused to witness the proceedings. However, said person, who had witnessed the proceedings of recovery, has not been cited as a witness in the present case. As per the prosecution case, PW5 Sh. Sukhbir Singh, the owner of the hotel, in his statement to police had stated that his employee had informed him about the recovery of narcotics substance in possession of accused Mohammad. Though in his statement, it cannot be denied having made such statement, when confronted with the statement under Section 161 Cr.P.C. This version of the prosecution again raised a significant question, why the said employee of the hotel has not been made a witness in the present case.
SC No. 09A/10, State vs Mohammad page no. 28 of 33 So far as the PW5 Sh. Sukhbir Singh is concerned, his statement would show that the accused was apprehended from his hotel, but he has not seen the recovery of any incriminating material from the accused. Once it has come in the statement of the witness that some hotel owner has witnessed the recovery then it was incumbent upon the prosecution to join him as a witness, there was no reason to withhold such independent witness from the Court.
21.0 Apart from this, there are other lacunaes in the prosecution case, which makes the entire recovery from the accused doubtful in this matter. The investigation in the case has been assigned to SI Vijender Singh after registration of FIR. PW8 SI Naresh Sangwan has stated that he mentioned in the rukka itself to assign the investigation to SI Vijender Singh. SI Naresh Sangwan (PW8) no where says that he had informed SI Vijender Singh that he would be made the IO of the case, then how SI Vijender Singh on his own reached the spot i.e. Kabuli Hotel, Bhogal, Jungpura, even before the registration of the FIR. SI Vijender Singh had stated during his crossexamination that the investigation was assigned to him by the senior officers i.e. ACPRajender Bakshi. He was directed at about 6:30 am by ACP Rajender Bakshi to go to the Kabuli Hotel. However, these directions were oral and were conveyed to him through the Duty officer. PW11 ACP Rajender Bakshi nowhere states that he had SC No. 09A/10, State vs Mohammad page no. 29 of 33 given direction to the Duty Officer to inform SI Vijender Singh that he should reach Kabuli Hotel, Bhogal, Jungpura. The Duty officer, PW1 HC Chand Ram has nowhere said that he had conveyed SI Vihedner Singh the direction of ACP Rajender Bakshi to reach the spot. The D.D. entry no. 2 dated 27.11.2009, made by SI Vijender Singh Ex. PW14/A shows that SI Vijender Singh had reached the spot i.e. Kabuli Hotel, Bhogal, Jungpura on the directions of senior officials. However, the name of such senior officer is conspicuously absent from the DD entry no. 2 Ex. PW14/A. It is not clear how SI Vijender was conveyed the information to reach Kabuli Hotel, Jungpura.
21.1 Not only this, even the manner of arriving of SI Vijender Singh at the spot is a matter of suspicion. PW4 Ct. Ravi Prakash, who had accompanied SI Vijender Singh from the office of Crime Branch, Chanakya Puri, to the Kabuli Hotel, Bhogal, Jungpura, deposed that he does not know by which mode, whether by bus or by car or any other mode, they had reached the Kabuli Hotel, Bhogal, Jungpura. PW12 Ct. Rajesh Kumar, who had also accompanied SI Vijender Singh deposed that they had gone to the Hotel Kabuli by taxi (yellow and black colour), which was hired from taxi stand behind Chanakya Puri. SI Vijender Singh, however, has a different version. He deposed that they had gone to Hotel Kabuli in Santro car, which belonged to some police official and SC No. 09A/10, State vs Mohammad page no. 30 of 33 he himself was driving the car, although he does not know to whom the car belonged.
22.0 The presence of the ACP at the spot is also doubtful. PW11 ACP Rajender Bakshi does not explain at what time he reached at the spot i.e. Kabuli Hotel, Bhogal, Jungpura. PW17 Vijender Singh, to whom the investigation was assigned, deposed that ACP Rajender Bakshi was also present there when they reached. However, the ACP is silent on this point. PW13 HC Jaleshwar, who had accompanied SI Naresh Sangwan from the I.G.I. Airport to Kabuli Hotel, has deposed that the ACP Rajender Bakshi had also accompanied them to Kabuli Hotel, which is contrary to prosecution case. So, the evidence with regard to presence of ACP in the Hotel is also doubtful.
23.0 Another interesting issue, which is noted in the present case, is about the use of seal. Ct. Jogender (PW16) has deposed that he has an experience of 25 years of service in the police force and all the police officials having seals of their own initials. He deposed that SI Naresh Sangwan had used the seal of SI Vijender Singh. SI Naresh Sangwan interestingly deposed that the seal of VS belongs to him. SI Vijender Singh on the other hand deposed that he had the seal of his initial, but it was with the initial of VK, which he had destroyed years ago. The statement of SI Naresh Sangwan and SI Vijender Singh do not SC No. 09A/10, State vs Mohammad page no. 31 of 33 inspire confidence at all. Even a layman will not accept that SI Naresh Sangwan, would use a seal with the initial of VS. The statement of Ct. Jogender (PW16) is more reasonable and logical, who deposed that SI Naresh Sangwan had used the seal of SI Vijender Singh. If this statement of PW16 Ct. Joginder is accepted, the entire proceeding of recovery becomes doubtful. Admittedly, SI Vijender Singh reached the spot much after the recovery and sealing proceedings. If these proceedings of recovery and sealing had been conducted prior to arrival of SI Vijender Singh, how the seal of VS could have been used in the sealing process. Thus, the entire proceeding of recovery has become doubtful.
24.0 Not only that, the prosecution case suffer from various deficiencies, inconsistencies and weaknesses and the recovery is itself doubtful, even the presence of some of the witnesses in the raiding team is highly doubtful. PW3 Ct. Subhash when asked to identify the accused in the Court categorically stated that the accused is not present in the Court. His examination was deferred till after the lunch and when he was crossexamined by the Ld. Additional Public Prosecutor, he identified the accused when the accused was clearly pointed out.
25.0 PW12 Ct. Rajesh Kumar has also not identified the accused in the Court. Therefore, their presence in the reading team becomes SC No. 09A/10, State vs Mohammad page no. 32 of 33 highly doubtful.
26.0 In view of the above discussion, I have serious doubt about the apprehension of the accused as well as the alleged recovery of contraband substance from his possession. The prosecution story is that when the police officials entered the hotel room of the accused at 4:30 am, it was not bolted from inside and the accused was sitting on the bag with the brief case in his lap. The story appears too artificial and contrived. One can not believe that at 4:30 am, somebody in a hotel room will not lock or bolt the room from inside, and it also does not appeal to reason why the accused would be sitting with the brief case in his lap, just like that. Therefore, the prosecution, in my considered view has not been able to prove its case beyond reasonable doubt. I, therefore, hereby acquit the accused Mohammad of the charge under Section 21 (c) of NDPS Act.
27. Accused has already furnished bail bond (cash surety) in terms of Section 437A Cr.P.C.
28. File be consigned to Record Room after necessary compliance.
Announced in the open Court on 29th April, 2016 (Ajay Kumar Kuhar) Special Judge (NDPS) South District: Saket SC No. 09A/10, State vs Mohammad page no. 33 of 33