Delhi District Court
State vs . on 17 May, 2023
IN THE COURT OF SHRI ARUL VARMA, ASJ-04 AND
SPECIAL JUDGE (NDPS) SOUTH-EAST: SAKET COURTS: NEW
DELHI
CNR No. DLSE01-002717-2018
SC No. 137/2018
FIR No. 176/2017
P.S. Crime Branch South-East
State
Vs.
Alok Kumar Pal
S/o Jitender Nath Pal
R/o Ichapur, Bidhan Pally,
P.O Ichapur, PS Nowapara
Distt Noth 24 Pargana,
West Bengal.
........ Accused
Date of Institution : 31.03.2018
Date of reserving the Judgment : 17.05.2023
Date of Judgment : 17.05.2023
JUDGMENT
FACTS IN BRIEF / CASE SET UP BY THE PROSECUTION
1. The facts as alleged by the prosecution,are hereby succinctly recapitulated. It was alleged that on 06.10.2017, at about 02:05 PM, near Khatta Hanuman Park, Gurudwara Road, Taimur Nagar, Delhi, accused was found in conscious possession of 1.500 Kg of heroine. Thereafter, the accused person was arrested and investigation was conducted. Whereafter, the present chargesheet came to be filed.
CHARGES FRAMED QUA THE ACCUSED
2. Charges under section 21 (c) of NDPS Act, were framed qua accused FIR No176/2017 State Vs. Alok Kumar Pal Page No. 1/38 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.05.17 17:03:26 -0300 person to which he pleaded not guilty and claimed trial.
EVIDENCE LED BY PROSECUTION
3. In the trial, the prosecution in support of its case, examined thirteen witnesses, the succinct testimonies whereof are as follows:
4. PW-1.ASI Mahesh Chand deposed that on 06.10.2017, he was posted as ASI and was working as MHC(M) Narcotics Cell, Kotwali, Daryaganj, Delhi. On that day, he had issued one seal of 3C PS/NB DELHI to ASI Dushyant No. 276/CR and an entry in this regard at Sl. No. 19 in official seal issuing Register N & CP 2017 was made by him. Photocopy of which was proved as Ex.PW1/A bore his signatures at pointA and signatures of ASI Dushyant at pointB. He further deposed that on the same day, he had also issued one electronic weighing machine to ASI Dushyant at 12;55 pm regarding which an entry in issuing Electronic weighing machine Register N & CP of 2017 at Sl. No. 36 was made by him photocopy of which was proved as Ex.PW1/B (OSR) bearing his signatures at pointA and signatures of ASI Dushyant at pointB. ASI Dushyant had returned the electronic weighing machine to him on 07.10.2017 at 4 am regarding which an entry was made in the said register at pointX which bore his signature at pointA and signatures of ASI Dushyant at pointB.
5. PW-2 ASI Jag Narain, deposed that on 06.10.2017, he was posted as FIR No176/2017 State Vs. Alok Kumar Pal Page No. 2/38 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.05.17 17:03:41 -0300
ASI and was working as MHC(M) in PS Crime Branch, New Delhi. On that day, on being called by Inspector Attar Singh, SHO, PS Crime Branch reached in his office alongwith Register No. 19. In the office SHO handed over to his 7 sealed pullandas No. A1, A2, B1, B2, A, B & C alongwith form FSL having seals of 3C PS/NB DELHI and AS alongwith carbon copy of seizure memo in this case regarding which an entry at Sl. No. 2810 in Register No. 19 was made. Thereafter SHO had signed in Register No. 19 against the said entry. Photocopy of the said entry was proved as Ex.PW2/A (OSR). Thereafter, on the same day at about 4 am ASI Pawan Kumar had deposited with him the belonging of personal search items of Alok Kumar vide two personal search memos regarding which an entry at Sl. No. 2811 was made by him in register no. 19 photocopy of which was proved as Ex.PW2/B. It was further deposed that both above entries bore his signatures at pointA. On 09.10.2017, he had sent the two cloth sealed parcels marked A1 & B2 alongwith FSL Form and other documents to FSL Rohini through Constable Vijay, as per the directions of the SHO vide RC no. 337/21/17 photocopy of which was proved as Ex.PW2/C bearing his signatures at pointA. On return, Ct. Vijay produced acknowledgement of case acceptance to him from FSL, Rohini which he pasted in Register No. 19 photocopy of which was FIR No176/2017 State Vs. Alok Kumar Pal Page No. 3/38 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.05.17 17:03:52 -0300 Ex.PW2/D. He had made an entry in this regard in register No. 19 from pointA to A in entry Ex.PW2/A bearing his signatures at pointX. On
06.03.2018, the FSL Result in this case in two sealed parcels sealed with the seal of FSL were received in the Malkhana through ASI Dushyant. The sealed parcels were deposited in the Malkhana and the FSL result was handed over to IO and an entry in this regard from pointB to B was made in Register No. 19 against entry Ex.PW2/A bearing his signatures at pointX. The case property remained intact during the period it remained in his possession and was not tampered with in any manner.
6. PW-3 ASI Dinesh Kumar deposed that on 6.10.2017 he was posted as ASI and was working as Reader to ACP Sh. Sanjeev Tyagi, N&CP, Crime Branch, Daryaganj, Delhi. On that day a report u/s 42 NDPS Act vide DD No. 9 dated 6.10.2017 regarding secret information prepared by ASI Dushyant Kumar and forwarded by Insp. Brij Pal Singh was received in the office by him through dak. He made an entry in diary register at sl. no. 1811 dated 6.10.2017 photocopy of which was proved Ex. PW3/A and thereafter he immediately put up the said report before ACP. ACP has gone through the said report and then signed on it at point A. The said report was proved as Ex. PW3/B. He further deposed that he identified the signatures of the ACP on the said report at point A as he has signed FIR No176/2017 State Vs. Alok Kumar Pal Page No. 4/38 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.05.17 17:04:00 -0300 in his presence. On 7.10.2017 special report u/s 57 NDPS Act regarding seizure memo of 1.5kg heroin from possession of accused Alok Kumar Pal prepared by ASI Dushyant Kumar and forwarded by Insp. Brij Pal Singh was received in the office by him through dak. He made an entry in diary register at sl. no. 1822 dated 7.10.2017 photocopy of which was proved as Ex. PW3/C and put up the said report before ACP. ACP gone through the said report and then signed on it at point A. The said report was proved as Ex. PW3/D. He further deposed that he identified the signatures of the ACP on the said report at point A as he has signed in his presence.
7. PW-4 Ct. Vijay deposed that on 09.10.2017, he was posted as Constable in Narcotics Cell, Crime Branch, Delhi. On that day, on the directions of IO, he left his office of Narcotics Cell and reached at the Malkhana of Crime Branch. He obtained two sealed pullandas markA1 & B1 duly sealed with the seals of 3 CPS NB DELHI & AS and copy of seizure memo, copy of FIR, FSL Form having affixed aforesaid seal vide RC No. 337/21/17 photocopy of which was already proved as Ex.PW2/C, bearing his signatures at pointC and alongwith the same he reached FSL Rohini and deposited the same there. Thereafter, he obtained the receipt already Ex.PW2/D, bearing his signatures at pointA and thereafter, he returned. FIR No176/2017 State Vs. Alok Kumar Pal Page No. 5/38
Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.05.17 17:04:15 -0300 Case property remained intact till it remained in his possession and it was not tampered with in any manner.
8. PW-5 ASI Parma Ram deposed that on 6.10.2017, he was working as ASI and was on duty at PS, Crime Branch,SED as DO from 8am to 08:00 pm. At around 6:15 pm, Ct. Pankaj, No. 925/Crimes produced one rukka to him for registration of the FIR. On the basis of said rukka, he got registered FIR of this case through Computer Operator, copy of which was proved as Ex. PW5/A bearing his signatures at pointA. He further deposed that he had brought the original FIR register. His endorsement on rukka was proved as Ex.PW5/B and certificate u/s 65B of the Indian Evidence Act was proved as Ex.PW5/C both bore his signatures at pointA. On the same day, he had also recorded DD No. 16 and 18, copy of which was proved as Ex. PW5/D to E. DD No. 17 was recorded by the concerned SHO/Insp. Attar Singh in his own handwriting, copy of which was proved as Ex. PW5/F.
9. PW6 ASI Ram Dev deposed that on 1.3.2018 he was posted as ASI at Narcotic Cell,Crime Branch, Kotwali, Delhi. On that day, he received case file of the present case as IO/ASI Pawan Kumar had proceeded on long leave. During investigation on 6.3.2018 he collected FSL result from the MHC/M and placed the same on file. As investigation was already complete, he prepared charge sheet against the accused and filed the same in the court for trial.
FIR No176/2017 State Vs. Alok Kumar Pal Page No. 6/38
ARUL Digitally signed by ARUL VARMA VARMA 17:04:26 -0300 Date: 2023.05.17
10. PW-7 Insp. Attar Singh deposed that on 6.10.2017 he was posted as S.H.O, P.S Crime Branch New Delhi. On that day AT 6.20PM Ct Manoj came to his office at about 06.20pm and produced before 5 sealed parcels bearing seal of 3C PS NB DELHI" which were marked as A1,A2, B1,B2 and C alongwith FSL form having same impression of abovesaid seal with carbon copy of seizure memo. He endorsed the seizure memo and put his seal of AS on all the already sealed pullandas and FSL form. Thereafter he called duty officer and after asking concerned FIR number, he mentioned details of present on all the produced pullandas, FSL forms and copy of seizure memos and put his signature. Thereafter, he called the MHC(M) ASI Jag Narayan P.S. Crime Branch alongwith Malkhana register and handed over all the abovesaid pullandas and carbon copies of seizure memos to MHC(M) and signed the relevant malkhana entry. Thereafter he lodged DD no.17 P.S. Crime Branch dated 6.10.2017 at 7pm in this regard in compliance of provision of Section 55 of NDPS Act. The DD was already proved as Ex. PW5/F. Photo copy of the relevant entry of Register No. 19 regarding deposit of case property by him was already on record which was mark X1 bearing his signature at point A. Later on, IO inquired him and recorded his statement under Section 161 Cr.P.C to the above said fact. So long the case property remained in his possession same was not tampered with in any manner.
FIR No176/2017 State Vs. Alok Kumar Pal Page No. 7/38
Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.05.17 17:04:37 -0300
11.PW-8 ACP Sanjeev Tyagi deposed that on 06.10.2017, he was working as ACP Narcotic Branch. On that day, Insp. Brij Pal Singh informed hi regarding an information at around 12.40pm that one Alok Kumar Pal R/o Bengal was coming to supply heroin at Hanuman Park, Taimur Nagar, Delhi between 1.30 to 2pm. O this information, he directed him to conduct raid. Thereafter his reader put up before him DD no. 9 dated 6.10.2017 forwarded by Insp. Brijpal Singh in compliance of section 42 NDPS Act which was perused by him and put his endorsement and signature at point A on said DD already proved as Ex. PW3/B. On the next day, i.e. 7.10.2017 his reader put up before him report u/s 57 of the NDPS Act in this case regarding recovery of 1.5KG heroin from possession of accused Alok Kumar Pal and regarding his arrest which was perused by him and put his endorsement and signature at point A which were proved as Ex. PW3/D and PW3/F respectively.
12.PW-9 ASI Dushyant Kumar deposed that on 06.10.2017, he was posted at Narcotics Crime Branch, Daryaganj Kotwali, New Delhi as ASI. On that day, at about 12.20 pm, when he was present in the office, a secret informer came to him and informed that a Bengali person namely Alok Kumar Pal who was involved in supply of heroin from Bengal to Delhi and nearby areas would be coming between 01.30 pm -02.00 pm near Hanuman Park, Taimur Nagar, to supply heroins to one person FIR No176/2017 State Vs. Alok Kumar Pal Page No. 8/38 Digitally signed by ARUL ARUL VARMA Date:
VARMA 2023.05.17 17:04:49 -0300
namely Farookh and he can be apprehended with contraband heroin if raided. He produced the secret informer to Insp. Brij Pal Singh/ his senior of his branch, who inquired the secret informer and after being satisfied informed about the secret information to Sanjeev Tyagi of our Cell. Thereafter,he recorded DD no. 9 dt. 06.10.2017, Narcotics Cell PS Crime Branch at about 12.45 pm regarding receiving of secret information in compliance of section 42 of NDPS Act and forwarded its copy which was already proved as EX.PW3/B bearing his signature at point B to Insp. Brijpal Singh.
13.PW-10. Insp. Brijpal Singh, deposed that on 06.10.2017, he was posted at abovesaid in Narcotics Cell, Crime Branch, Kotwali, Daryaganj, New Delhi. On that day, at about 12.30 pm, when he was present in the office, ASI Dushyant Kumar came in his office and produced to a secret informer who on enquiry told that a person namely Alok Kumar Pal R/o West Bengal who used to supply heroin from West Bengal to Delhi would be coming between 01.30 pm to 02.00 pm near Hanuman Park, Taimur Nagar, New Delhi for the purpose of supply of heroin who could be apprehended with contraband if raided. After inquiring, the secret informer and being satisfied, he went to office of then ACP of their Cell Sh. Sanjeev Tyagi, who met him there and he told him about receiving of secret information, contents of the said information. Sh. Sanjeev Tyagi FIR No176/2017 State Vs. Alok Kumar Pal Page No. 9/38 Digitally signed by ARUL ARUL Date:
VARMA VARMA 2023.05.17 17:05:01 -0300
after being satisfied with the information, directed him to get formed a raiding party and get appropriate proceedings conducted for seizure of contraband and arrest of accused. Thereafter, ASI Dushyant lodged DD no.09 dt. 06.10.2017 of Narcotics Cell regarding receiving of secret information and forwarded to he copy of same in compliance of Sec. 42 NDPS Act which he perused and forwarded to concerned ACP of the Cell in compliance of abovesaid section. He further deposed that he forwarded the abovestated DD no. 09 at about 12.55pm 01:00PM on 06.10.2017 and immediately sent it to the office of concerned ACP Sh. Sanjeev Tyagi. Original copy of above stated DD no. produced to him as above stated was already proved as Ex.PW3/B bearing his forwarding and signature at point C. Thereafter, he directed ASI Dushyant to form a raiding party and proceed appropriately. ASI Dushyant formed a reading party comprising himself, HC Ramesh, Const. Pankaj, Driver/HC Satender and they along with Secret Informer left the spot after recording their departure vide DD no. 10 dated 06.10.2017 Narcotics Cell, Crime Branch. In the same night after the registration of present case, at about 12.20 am, on 07.10.2017, ASI Pawan produced before him the accused Alok Kumar Pal. He interrogated him and found his arrest and recovery of contraband justified. IO recorded his statement. Thereafter, ASI FIR No176/2017 State Vs. Alok Kumar Pal Page No. 10/38 Digitally signed by ARUL ARUL Date:
VARMA VARMA 2023.05.17 17:05:12 -0300
Dushyant Kumar forwarded to him the report of Section 57 NDPS Act regarding seizure of 1.50 kilo gms heroin from the possession of accused, which was already proved as Ex.PW3/D bearing his forwarding and signature at point B. Simultaneously ASI Pawan also forwarded to him report under Section 57 NDPS Act regarding arrest of accused Alok Kumar Pal, which was already proved as Ex.PW3/F bearing his forwarding and signature at point B. He immediately forwarded both the reports Ex.PW3/D and Ex.PW3/F to concerned ACP Sh. Sanjeev Tyagi.
14.PW-11 Shailender Yadav, Senior Scientific Officer deposed that he was working as above stated in FSL Rohini for the last 3 years. On 09.10.2017, two sealed cloth parcels were received in their office with FSL form and forwarding letter. The case was marked to him for examination. He tallied seals on both the cloth parcels with the impression of seals on FSL form/forwarding letter and found them correct and intact. The first parcel marked as A1 sealed with seal of 'P.S./N.B.3C DELHI' and 'A.S' and was found containing exhibit A1 i.e. light brown coloured powdry material kept in plastic pouch tied with rubber band stated to be heroin weighing 5.70 gms approximately. The second parcel marked as B1 sealed with seal of 'P.S./N.B.3C DELHI' and 'A.S' and was found containing exhibit B1 i.e. light brown coloured FIR No176/2017 State Vs. Alok Kumar Pal Page No. 11/38 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.05.17 17:05:23 -0300 powdry material kept in plastic pouch tied with rubber band stated to be heroin weighing 5.8 gms approximately. On Chemical, TLC, GC & GC MS examinations. (I) Exhibits 'A1' and 'B1' were found to contain Diacetylomorphine, 6monoacetylmorphine, Acetylcodeine and Acetaminophen. (II) Exhibit 'A1' was found to contain 'Diacetylmorphine' 6.4%. (III) Exhibit 'B1' was found to contain 'Diacetylmorphine' 3.0%. After examination remnants of the exhibits have been sealed with the seal of SY FSL DELHI and were returned. His detailed report in this regard was proved as exhibit PW11/A bearing his signatures on each pages.
15.PW-12 Const. Pankaj deposed that on 06.10.2017, he was posted as Const, at Narcotics Cell, Crime Branch, Darya Ganj, New Delhi. It was deposed that on that day, at about 12:55pm, ASI Dushyant called him, HC Ramesh and HC Satender in his room and informed them about the reception of secret information that a Bengali person, namely, Alok Kumar Pal who used to supply heroin from West Bengal to areas of Delhi, who would be coming between 01:30PM to 02:00PM near Hanuman Park, Taimur Nagar, New Delhi for the purpose of supplying contraband heroin to a person namely, Farooq, and who can be apprehended red handed. With the instructions of Insp. Brij Pal Singh, FIR No176/2017 State Vs. Alok Kumar Pal Page No. 12/38 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.05.17 17:05:33 -0300
ASI Dushyant formed a raiding party comprising IO himself, PW12, HC Satender/Driver and HC Ramesh and they all with Secret Informer left their office after recorded departure entry vide DD no. 10 dated 06.10.2017 at 01:00PM. They left their office and went to spot by private Honda Amaze Car having registration no. DL 3CCC 9431. They took the route of Shanti ban red light, Sarai Kale Khan, Maharani Bagh, C.V. Raman Marg, Gurduwar Road to Hanuman Park where their vehicle was got stationed near the gate of Hanuman Park on the roadside. In their way at Sarai Kale Khan Bus stand and Gurudwara situated at Taimur Nagar, IO requested 44 public persons/passerby to join the raiding party after informing them about the secret information but none of them agreed. At the spot, IO/ASI Dushyant briefed entire team. HC Satender remained inside our car. He took position near Khatta (Kudedaan house) near the corner of Hanuman Park on the Gurdwara Road. ASI Dushyant along with secret informer and HC Ramesh also took position on the Gurdwara road in front of Hanuman park at a distance of 1520 meter on the road.
At about 02:05PM, IO ASI Dushyant pointed out towards a person who had come from Gurdwara side and after waiting for 34 minutes was again started moving towards Gurdwara, whom he along with IO and other staff apprehended. The said person was having a black colour pithu FIR No176/2017 State Vs. Alok Kumar Pal Page No. 13/38 Digitally signed by ARUL ARUL VARMA Date:
VARMA 2023.05.17 17:05:42 -0300
bag on his right shoulder. On enquiry, the said person revealed his identity as Alok Kumar Pal, S/o. Sh. Jitender Nath Pal resident of West Bengal. At the direction of the IO, SI Satender brought their car near them. IO requested 34 public persons/passerby who gathered there to join the investigation after disclosing them the facts of the case but none of them agreed. IO disclosed identity of raiding party to the accused and told him that they had secret information of accused being in a possession contraband heroin for which his search was required. IO also told to the accused that it was his legal right to be searched in presence of gazetted officer/Magistrate and if accused wishes so, he could be taken to such officer. IO also told that before offering his search, accused can take search of raiding party members and of their vehicle but accused refused to avail his aforesaid right and to take search of police party or their vehicle. Thereafter, IO served notice under Section 50 NDPS Act to accused carbon copy of which was already proved as Ex.PW9/A bearing his signature at point X. The original notice was already proved as Ex.P6 bearing his signature at point B. Accused replied the said notice on its carbon copy Ex.PW9/A vide his reply encircle at portion X bearing his signature at point Y and signature of accused at point B. Thereafter, IO checked the black colour bag found in the possession of the accused FIR No176/2017 State Vs. Alok Kumar Pal Page No. 14/38 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.05.17 17:05:55 -0300 which was found containing one nekar, one pant, one shirt and two transparent (momi) polythene pouches tied with rubber band both containing matmaila colour powder. IO checked contents of both the polythenes separately on field testing kit and the same were found to be heroin. IO marked the transparent (momi) polythene pouches separately as Mark A and Mark B respectively. IO weighed the powder along with transparent polythene mark A on electronic weighing machine and its total weight came out as 1 kilogram. IO separated two samples of 5 gram each from the contents/ powder of mark A in separate transparent polythene (momi) and tied their mouth with rubber band and sealed them separately with the help of white cloths with the seal of "3CPS NB DELHI" and gave them mark A1, A2. Rest of the case property in transparent momi polythene Mark A was tied with rubber band. IO weighed the powder along with transparent polythene mark B on electronic weighing machine and its total weight came out as 500 grams. IO separated two samples of 5 gram each from the contents/ powder of mark B in separate transparent polythene (momi) and tied their mouth with rubber band and sealed them separately with the help of white cloths with the seal of "3CPS NB DELHI" and gave them mark B1, B2. Rest of the case property in transparent momi polythene Mark B was tied with FIR No176/2017 State Vs. Alok Kumar Pal Page No. 15/38 Digitally signed by ARUL ARUL VARMA Date:
VARMA 2023.05.17
17:06:05 -
0300
rubber band. Thereafter, IO kept back the case property mark A and mark B with the recovered cloths /articles in the same black colour pitthu bag found from the possession of accused and sealed them with white cloth pullanda with the seal of "3CPS NB DELHI" and gave the said pullanda mark C. Thereafter, IO filled FSL Form using the same seal impression and seized the case property vide seizure memo Ex.PW9/B bearing his signature at point B. After use, IO handed over the seal to HC Ramesh. Thereafter, IO prepared rukka Ex.PW9/C bearing his signature at point A and handed over the same to him with the case property i.e. five sealed pullandas along with FSL form and copy of seizure memo with direction to hand over the tehrir/ rukka to Duty Officer and rest of the articles to SHO. He took abovesaid articles to PS Crime Branch by their car driven by HC Satender and handed over rukka to duty officer and rest of the articles to SHO Atar Singh, who after checking the pullands and documents called the duty officer and after enquiring the FIR number, mentioned the same on the pullandas and documents and put his signatures on the pullandas. SHO has put his seal of 'AS' on all the pulandas and also put the same seal on FSL form and thereafter called MHCM ASI Jag Naryan with register no. 19 and handed over all the pulandas and documents to MHCM who made the entry in register no. 19 FIR No176/2017 State Vs. Alok Kumar Pal Page No. 16/38 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.05.17 17:06:14 -0300 which was signed by SHO. SHO has made entry vide DD no. 17 in the roznamcha in compliance of Section 55 NDPS Act. Duty officer handed over to him the copy of FIR and rukka to him and thereafter, he came to his office where second IO, ASI Pawan Kumar met him to whom IO handed over FIR and rukka. He remained in the office. Second IO left for the spot.
16.PW-13 ASI Pawan Kumar deposed that on 06.10.2017, he was posted at Narcotics Cell at Kotwali Dariya Ganj, PS Crime Branch. On that day at about 08:30 PM, one Ct. Pankaj came to his office and gave one copy of computerized FIR of this case alongwith original rukka. The investigation of this case was assigned to him after registration of the FIR. He made a DD No. 17 recorded Ex. PW 13/A and in pursuance of which he alongwith HC Satender driver went to the spot by a private vehicle, bearing no. DL 3CCC 9431, silver colour Honda Amaze and at about 09:10 PM reached the spot at Hanuman Park, Taimoor Nagar. Upon reaching the spot, ASI Dushyant, HC Ramesh and one Alok Kumar Pal, ie accused met. It was further deposed that ASI Dushyant handed over him the accused and the documents prepared by him. He apprised him about the recovery proceedings of 'heroin' from the accused. He prepared the site-plan of the place of recovery at the instance of ASI Dushyant.
The same was already proved as Ex. PW9/D, which bore his signature at FIR No176/2017 State Vs. Alok Kumar Pal Page No. 17/38 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.05.17 17:06:22 -0300
Point B. He then recorded the statement of HC Ramesh at the spot u/s 161 Cr.P.C. from 09:30 PM to 11:00 PM. Then, he made inquiry from accused Alok Kumar Pal and arrested him in this case at 11:15 PM vide arrest memo Ex. PW9/E, which bore his signature at Point B. He conducted the personal search of accused and prepared the memo thereof vide Ex. PW9/G and Ex. PW9/F. In respect of the recovery of two mobile phones, he prepared a separate seizure memo which was proved as Ex.
PW9/F. In personal search, one notice u/s 50 NDPS Act, one purse, DL, one ID, one pan card and some other belongings were recovered vide already mentioned memo Ex. PW9/G. He further deposed that he interrogated the accused and recorded his disclosure statement already Ex. PW9/H. At about 11:50 PM, he finally left the spot and reached in the office at about 12:20 AM. He produced the accused before the Inspector Brijpal Singh, who made inquiry from the accused and found his arrest to be satisfactory. He then recorded the statement of witnesses. Then, he went to PS Crime Branch and deposited the personal belongings with the malkhana. However, he kept both the mobile phones with him for the purpose of investigation and the same were deposited in the malkhana on 16.10.2017. He recorded the statement of SHO Crime Branch Insp. Atar Singh and the MHC(M). Witness further deposed that he returned to his office at Dariya Ganj and then prepared the report u/s 57 NDPS Act and sent to ACP through the Inspector Narcotics Cell, which was already FIR No176/2017 State Vs. Alok Kumar Pal Page No. 18/38 Digitally signed by ARUL ARUL Date:
VARMA VARMA 2023.05.17 17:06:32 -0300
proved as Ex. PW3/F, bore his signature at Point X. The accused was produced before the Court. He obtained the PC of accused for 8 days. On 09.10.2017 the sample parcel was sent to FSL through Ct. Vijay.
Thereafter, he took the accused to Village Radhikantapura, District Nadia, West Bengal in order to search the co-accused Hafiz-ul-haq but he could not be found. One notice u/s 67 NDPS Act was given to the wife of Hafiz-ul-haq. Thereafter, they returned to Delhi. the accused was produced before the Court and he was remanded to Judicial Custody. On 25.10.2017, SI Sujit Gosh In-charge police post Dev Gram, District Nadia, West Bengal gave information that the alleged Hafiz-ul-haq had been died due to some fatal accident. He also sent his death certificate, which was got verified by him from the concerned authority and the same was found to be true. He further deposed that he also made an entry no. 2 dated 07.10.2017 regarding his arrival in the office. The attested copy of the same was proved as Ex. PW13/B. The investigation of this case remained with him till 23.02.2018 and thereafter the investigation was assigned to ASI Ramdev.
17.The relevancy of the witnesses examined are succinctly delineated in the following tabular form:
PW NAME RELEVANCE 1 ASI Mahesh Chand He was posted as MHC(M) ,PS Narcotics Cell, Kotwali, FIR No176/2017 State Vs. Alok Kumar Pal Page No. 19/38 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.05.17 17:07:19 -0300 Daryaganj, 2 ASI Jag Narain He was also posted as MHC(M) PS Crime Branch on 06.10.2017 and who sent the sealed parcels to FSL Rohini.
3 ASI Dinesh Kumar He was the Reader to ACP N&CP, Crime Branch, Daryaganj and he proved the compliance of Section 42 and Section 57 of NDPS Act vide Ex. PW3/A, Ex.
PW3/B and Ex. PW3/C 4 Ct Vijay On the instructions of the IO, he had taken to ther FSL the case property ie two sealed pullandas markA1 & B1 duly sealed with the seals of 3 CPS NB DELHI & AS and copy of seizure memo, copy of FIR, FSL Form having affixed aforesaid seal vide RC No. 337/21/17.
5 ASI Parma Ram He was the Duty Officer at PS Crime Branch who registered the present FIR on the basis of FIR No176/2017 State Vs. Alok Kumar Pal Page No. 20/38 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.05.17 17:07:29 -0300 Rukka brought by Ct Pankaj. He proved the FIR as Ex. Pw5/A 6 ASI Ram Dev He had collected the FSL result from the MHC(M) on 06.03.2018, had prepared the chargesheet and filed the same before the Court.
7 Inspector Attar Singh He was posted as SHO PS Crime Branch and had received five sealed parcels, FSL form and carbon copy of seizure memo on which he affixed his seal of AS and deposited the same in the Malkhana after making entry in Malkhana Register in compliance of Section 55 of the NDPS Act.
8 ACP Sanjeev Tyagi He was posted as ACP, N&CP Crime Branch Daryaganj, and proved receipt of reports u/s 42 and 57 of NDPS Act.
9 ASI Dushyant Kumar He produced the secret informer to Inspector Brij Pal Singh and who proved the compliance of FIR No176/2017 State Vs. Alok Kumar Pal Page No. 21/38 Digitally signed by ARUL ARUL Date:
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0300Section 42 NDPS Act by way of recording of DD no. 9 dated 06.10.2017 viz Ex. PW3/B. He was the part of the raiding team.
He also served notice u/s 50 NDPS Act upon the accused and also took out samples from the seized contraband item.
10 Inspector Brijpal Singh He proved the factum of relaying of secret information to the ACP Sh. Sanjeet Tyagi, in compliance of Section 42 NDPS Act.
11 Sh. Shailender Yadav, He was the FSL expert who Senior Scientific Officer proved his report Ex. PW11/A whereby it was opined that the contraband item was heroine.
12 Ct Pankaj He was part of the raiding team.
13 ASI Pawan Kumar He was the IO who conducted the
investigation, effected recovery
of case property, prepared the site
plan, recorded statements of
witnesses, prepared seizure
memos, arrest memo and also
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signed by
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ARUL VARMA
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prepared the report u/s 57 of
NDPS Act.
STATEMENT OF ACCUSED
18.Accused was examined u/s 313 Cr.PC. In her defence, he averred that he does not know anything about this case and has been falsely implicated in this case. He deposed that he is innocent and the police officials have wrongly implicated him in this case. Further, accused did not lead any evidence in his defence.
ARGUMENTS OF LD. ADDL. PUBLIC PROSECUTOR FOR THE STATE AND LD. DEFENCE COUNSEL
19. Sh. Wasi-Ur- Rahman, Ld. Addl. PP for the State all the witnesses have supported the case of prosecution. It was submitted that there has been total compliance of all the relevance provisions of the NDPS Act including Section of 42, Section 52, Section 55 and Section 57 of NDPS Act. It was also submitted by Ld. Addl PP for State that after the prosecution evidence, the statement of accused has been recorded u/s 313 Cr.PC. In his statement, the accused nowhere explained as to why he has been arrested in this case. The accused also did not claim any prejudice for non compliance of any provision, if any,.
20.Lastly, Ld. Addl PP for State contended that there is no reason to discard the testimony of witnesses examined in this case. Furthermore, there is no FIR No176/2017 State Vs. Alok Kumar Pal Page No. 23/38 Digitally signed ARUL by ARUL VARMA VARMA 2023.05.17 Date:
17:07:56 -0300 defence taken by the accused, which can be considered at par with the prosecution evidence. Hence, the accused is liable to be held guilty for the offence he is charged with.
21. Per contra, Sh. Upendra Bahadur, Ld. Counsel for accused submitted that there was no eye witness at the scene of occurrence. It was further submitted that the accused was actually arrested from Nizamuddin Railway station. However, police has wrongly shown the place of arrest as Hanuman Park, Taimur Nagar, Delhi. It was also contended that the police did not make any endeavors to trace the whereabouts of actual culprit namely Farukh. It was further submitted by Ld. Counsel that the notice u/s 50 NDPS Act was not served upon the accused at the spot rather it was served upon the accused at the police station. It was also submitted that a false case has been foisted upon the accused inasmuch as secret information was given to police at 12:30 PM whereas the arrest of accused was made only after 02:15 PM. It was also submitted that no CCTV footage of incident was filed by the police. Lastly, It was submitted by Ld. Counsel for accused that the accused has been falsely implicated in the present matter and thus he ought to be exonerated.
STATEMENT OF REASONS FOR THE DECISION A. APPREHENSION OF ACCUSED AND RECOVERY OF ALLEGED CONTRABAND FROM HIM
22. The manner in which the accused was apprehended and recoveries were FIR No176/2017 State Vs. Alok Kumar Pal Page No. 24/38 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.05.17 17:08:06 -0300 effected by the raiding team comprising of PW ASI Dushyant Kumar, PW HC Ramesh PW-12 Ct Pankaj And PW-13 ASI Pawan Kumar has already been detailed above. They deposed in a similar vein in their examination in chief.
23.As far as the manner of arrest of accused is concerned, it was contended by Ld. Counsel for accused no independent witnesses were joined during the arrest of the accused, and recovery of contraband item from him.
24. The contention of Ld. Counsel for the accused that no public witnesses were joined nor notice to any public witness was given to join the proceedings, pales into insignificance in light of the testimonies of the prosecution witnesses. Significantly, in this context, it would be useful to peruse the following extracts of Ajmer Singh v State of Haryana (2010) 3 SCC 746:
"19 The learned counsel for the appellant has submitted that the evidence of the official witnesses cannot be relied upon as their testimony, has not been corroborated by any independent witness. We are unable to agree with the said submission of the learned counsel. It is clear from the testimony of the prosecution witnesses PW 3, Paramjit Singh Ahalwat, DSP, Pehowa; PW 4, Raja Ram, Head Constable and PW 5, Maya Ram, which is on record, that efforts were made by the investigating party to include independent witness at the time of recovery, but none was willing. It is true that a charge under the Act is serious and carries onerous consequences. The minimum sentence prescribed under the Act is imprisonment of 10 years and a fine. In this situation, it is normally expected that there should be independent evidence to support the case of the prosecution. However, it is not an inviolable rule. Therefore, in the peculiar circumstances of this case, we are satisfied that it would be travesty of justice, if the appellant is acquitted merely because no independent witness has been produced. FIR No176/2017 State Vs. Alok Kumar Pal Page No. 25/38
Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.05.17 17:08:15 -0300 20 We cannot forget that it may not be possible to find independent witness at all places, at all times. The obligation to take public witnesses is not absolute. If after making efforts which the court considered in the circumstances of the case reasonable, the police officer is not able to get public witnesses to associate with the raid or arrest of the culprit, the arrest and the recovery made would not be necessarily vitiated. The court will have to appreciate the relevant evidence and will have to determine whether the evidence of the police officer was believable after taking due care and caution in evaluating their evidence."
25.Thus, the testimony of police witnesses cannot be disregarded merely on account of non joining of public witnesses. B. RECORDING OF SECRET INFORMATION AND COMPLIANCE OF SECTION 42 NDPS ACT
26. As per the prosecution, PW-9 ASI Dushyant Kumar was posted as ASI at Narcotics Crime Branch, Daryaganj, and on 06.10.2017, at about 12:20 PM, a secret informer came to him and informed him that a bengali person namely Alok Kumar Pal, who was involved in the supply of heroine from Bengal to Delhi and nereby areas would be coming between 01:30 PM to 02:00 PM near Hanuman Park, Taimur Nagar, Delhi to supply Heroine to one person namely Farukh. The witness deposed that he reduced this information in writing and recorded DD no. 9 dated 06.10.2017 at about 12:45 PM regarding receipt of secret information in compliance of Section 42 of NDPS Act and forwarded a copy thereof to PW/Inspector Brij Pal Singh. The witness proved the said DD number as Ex. PW3/B. The witness further deposed that he had produced the secret informer to PW-10Inspector Brij Pal Singh, who had made inquiries from FIR No176/2017 State Vs. Alok Kumar Pal Page No. 26/38 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.05.17 17:08:23 -0300 secret informer, and after being satisfied about the secret information, shared this information with the then ACP Sh. Sanjeev Tyagi.
27. The secret information was reduced in writing in the form of DD no. 09 dated 06.10.2017, ie Ex PW3/B. Thus, the requirement of Section 41(2) of NDPS Act stood satisfied. Further, PW-10 Inspector Brij Pal Singh deposed that the DD no. 9 dated 06.10.2017 which was forwarded to him by ASI Dushyant Kumar, was forwarded by PW-10 Inspector Brij Pal Singh at about 12:55 PM to 01:00 Pm on 06.10.2017 to the office of concerned ACP Sh. Sanjeev Tyagi.
28. The receipt of the above report in the office of the ACP was proved by ACP Sh. Sanjeev Tyagi himself who was examined as PW-8 and by PW-
ASI Dinesh Kumar, Reader to the ACP. PW-3 ASI Dinesh Kumar had categorically deposed that on 06.10.2017, the report in compliance of 42 NDPS Act vide DD no. 9 dated 06.10.2017, prepared by ASI Dushyant Kumar and forwarded by Inspector Brij Pal Singh was received in the office by this witness through dak whereafter he made entry in diary Register at serial no 1811 dated 06.10.2017, photocopy whereof was proved as Ex. PW3/A. He further deposed that the said report was immediately put up before the ACP and the ACP, after going through the said report, signed on it at point A. The said report was proved as Ex. PW3/B. This fact was corroborated by PW-8 ACP Sanjeev Tyagi, who affirmed that his Reader had put up DD no. 9 dated 06.10.2017 forwarded FIR No176/2017 State Vs. Alok Kumar Pal Page No. 27/38 Digitally signed by ARUL ARUL VARMA VARMA Date:
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by Inspector Brij Pal Singh in compliance of Section 42 NDPS Act which was perused by him and wherein he put his endorsement and signature at point A. This report was proved by the witness as Ex. PW3/B C. COMPLIANCE OF SECTION 55 OF THE NDPS ACT BY THE SHO
29.At this juncture, it would be apt to refer to Section 55 of the NDPS Act:
"SECTION 55. Police to take charge of articles seized and delivered.- An officer-in -charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in-charge of the police station."
30.In the present case, Inspector Attar Singh, who was the SHO PS Crime Branch was examined as PW-7 categorically deposed that on 06.10.2017, Ct Manoj had come to his office at about 06:20 PM and produced before him five sealed parcels bearing seal of 3C PS NB Delhi which were marked as A1, A2, B1, B2 and C alongwith FSL form and carbon copy of seizure memo. PW-7 further deposed that he called the duty officer and after ascertaining the FIR Number, mentioned the details on all the relevant pullandas and documents. Thereafter, he called the MHC(M) ASI Jag Narayan alongwith Malkhana Register, put his seal of AS on all the sealed pullandas and FSL form and handed over the same to the MHC(M) and also signed the relevant Malkhana register entry. He proved the relevant entry of Register no. 19 regarding deposit of case FIR No176/2017 State Vs. Alok Kumar Pal Page No. 28/38 Digitally signed by ARUL ARUL VARMA VARMA Date:
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property as mark X1 bearing his signatures at point A.
31.As far as the factum of deposit of seized articles in the Malkhana are concerned, ASI Jag Narayan who was working as MHC(M) was examined as PW-2. He submitted that on 06.10.2017, he was called by the SHO /Inspector Attar Singh in his office, and was handed over by the SHO seven sealed pullandas nos. A1, A2, B1, B2, A, B and C alongwith FSL form having seal of 3C AS NB Delhi and AS, alongwith carbon copy of seizure memo. Thereafter, this witness deposed that the SHO had signed the Register no 19, and entry was adduced as evidence as Ex. PW2/A .
32. Thus, as is evident from the above deposition the prosecution evidence clearly discloses that the sealed articles were produced before Officer Incharge of the police station, that he had put his seal over those articles and they were sent for safe custody. Thus, there is due compliance of Section 55 of NDPS Act in terms of Ashok Kumar Vs State of Haryana AIR 2000 SC 3474 D. REPORT UNDER SECTION 57 OF NDPS ACT
33.It would be apposite to refer to Section 57 of the Act, which is reproduced hereunder:
"Whenever any person makes any arrest or seizure, under this Act, he shall, within forty eight hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior." FIR No176/2017 State Vs. Alok Kumar Pal Page No. 29/38
Digitally signed by ARUL ARUL Date:
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34.The legislative intent behind Section 57 of the Act, has been delved upon in Megha Ram v State of Rajasthan 1997 Cri LJ 3091 in the following words:
"Section 57 comes into play in the post-arrest period. It enjoins upon the officer, arresting an accused and effecting recovery of a narcotic drug or psychotropic substance from his possession, to inform his superior officers of the actions taken by him. Compliance of this provision is meant to serve a dual purpose. On the one hand it affords an element of authenticity to the action taken by him in the cause of preventing commission of offences against the NDPS Act. The consciousness of compliance of this section puts, in a sense, a sort of check on the arbitrary exercise of his powers of arrest and seizure by him under the Act and creates a sense of responsibility in him to act in accordance with relevant provisions of law so as not to be undermined in the estimation of his superior officers with regard to the discharge of his duties as a responsible officer. On the other hand the communication of the information apprises the superior officers of the position of offences against the NDPS Act and also of the steps taken and compliance of the relevant rules made by their subordinates in the administration of the said Act. If the officer has acted as a vigilant and duty conscious officer in the pre-arrest-stage of the proceedings and his evidence discloses satisfactory compliance of the mandatory provisions relating to that stage of proceedings and inspires confidence in Court, non-compliance or compliance with some irregularity of certain provisions relating to post-arrest period would not be fatal to the prosecution case as that would be a case of an offence already committed and concluded. The purpose of compliance of S. 57 is to afford further reliability to the action already taken by the subordinate, officer. In that sense of the matter compliance of S. 57 is not mandatory but for that reason its importance in the scheme of the Act cannot be minimised (see State of Punjab v. Balbir Singh)"
35.PW- 09 ASI Dushyant Kumar deposed that the 2nd IO had arrested accused vide arrest memo Ex. PW9/E. He further submitted that the after the accused was interrogated and contraband articles were seized from him, thereafter the witness prepared report u/s 57 NDPS Act, and he FIR No176/2017 State Vs. Alok Kumar Pal Page No. 30/38 Digitally signed by ARUL ARUL VARMA VARMA Date:
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proved the same as Ex. PW9/I bearing his signatures at point-A. Thereafter, PW-10 Inspector Brij Pal deposed that PW-9 ASI Dushyant had forwarded to him the report u/s 57 NDPS Act regarding seizure of contraband item ie Ex. PW3/D. PW-10 further deposed that ASI Pawan also forwarded to him a report u/s 57 of NDPS Act regarding arrest of accused Alok Kumar Pal. This witness immediately forwarded both the reports viz Ex. PW3/D and PW3/F to concerned ACP Sh. Sanjeev Tyagi.
36.The receipt of the above reports in the office of the ACP concerned has been proved by the Reader to the ACP ie PW-3 ASI Dinesh Kumar and also by the ACP Sh. Sanjeev Tyagi himself, who was examined as PW-8. PW-3 ASI Dinesh Kumar proved the factum of production of report u/s 57 NDPS Act before th ACP. He deposed that on 07.10.2017, the special report u/s 57 NDPS Act regarding seizure of 1.5 kg of heroine from the possession of the accused which was prepared by ASI Dushyant Kumar and forwarded by Inspector Brij Pal Singh was received in the office through dak. This witness proved the entry thereof in diary register serial no. 1822 dated 07.10.2017, as Ex. PW3/C (OSR). This witness categorically deposed that he had immediately placed the report before the ACP concerned. He proved the report as Ex. PW3/D. This witness also proved the special report u/s 57 NDPS Act regarding arrest of the accused and proved the same as Ex. PW3/F.
37. The ACP Sh. Sanjeev Tyagi also corroborated the receipt of reports u/s FIR No176/2017 State Vs. Alok Kumar Pal Page No. 31/38 Digitally signed by ARUL ARUL Date:
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57 NDPS Act in his office. He categorically averred that on 07.10.2017 his Reader had put up a report u/s 57 of NDPS Act regarding recovery of heroine from the accused and information regarding his arrest, and he proved the information as Ex. PW3/D and PW3/F respectively, bearing his signatures at point A. E. COMPLIANCE OF SECTION 50 NDPS ACT
38. Ld. Counsel for accused had contended that notice u/s 50 NDPS Act was served to him at the police station itself. However, this contention really cannot be countenanced inasmuch as the accused could not substantiate this claim. On the other hand, the State was successful in establishing due compliance of Section 50 of NDPS Act.
39.To adjudicate this issue, it would be profitable to refer to Section 50 of the Act, which reads as thus:
"Section 50: Conditions under which search of persons shall be conducted:
(1)When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate (2)If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1)"
40.The safeguards mentioned in Section 50 are intended to serve a dual purpose- to protect a person against false accusation and frivolous charges as also to lend credibility to the search and seizure conducted by FIR No176/2017 State Vs. Alok Kumar Pal Page No. 32/38 Digitally signed by ARUL ARUL Date:
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an empowered officer.
41.In the present case, PW-09 ASI Dushyant Kumar had deposed that on 06.10.2017, at the pointing out of the secret informer, the accused was accosted by the raiding team members and it was told to the accused that the police party has secret information that the accused is in possession of heroine, for which his search is necessary. The witness categorically deposed that he had told the accused that if the accused so wishes, his search can be taken in the presence of a Gazetted Officer or a Magistrate, who can be called at the spot, or to whom the accused can be taken. The accused had refused to avail his above stated rights. The witness had deposed that he had served a written notice u/s 50 NDPS Act upon the accused and he proved the same as Ex. PW9/A bearing his signatures at point-A. The witness further deposed that the accused wrote his reply on the carbon copy of notice Ex. PW9/A vide portion encircled with red ink at portion X and put his signature at point B. In the cross-examination of this witness, he avowed that it was correct that no Gazetted Officer or Magistrate was called at the spot. This elicitation would not enure in favour of the accused inasmuch as there was no mandatory requirement of calling a Gazetted Officer or Magistrate to the spot in light of the fact that the accused had unequivocally expressed his refusal to be searched in the presence or by such an Officer/Magistrate.
42.Serving of notice u/s 50 NDPS Act to the accused was also corroborated FIR No176/2017 State Vs. Alok Kumar Pal Page No. 33/38 Digitally signed by ARUL ARUL VARMA VARMA Date:
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by PW-12 Ct Pankaj, who was also a part of the raiding team. He deposed that the IO had served notice u/s 50 NDPS Act to the accused, carbon copy of which was Ex. PW9/A bearing his signatures at point X. He also proved the original notice Ex. P6 bearing his signatures at point-B. He further deposed that the accused had replied qua the notice on Ex. PW9/A vide his reply encircled at portion X bearing the signature of PW-12 Ct Pankaj at point Y. Lastly, it was PW-13 ASI Pawan Kumar who deposed that during the personal search of accused vide Ex. PW-9/G, inter alia one notice u/s 50 NDPS Act was recovered from the accused. F. DEPOSIT OF EXHIBITS IN FSL FOR FORENSIC EXAMINATION AND FSL REPORT.
43. The sanctity of chain of custody qua deposit of Exhibits in FSL from the malkahan was also duly proved by the prosecution. PW-2 ASI Jag Narayan, who was working as the MHC(M) categorically deposed that on 09.10.2017, he had sent the two cloth sealed parcels mark A1 and B2 alongwith FSL Form and other documents to FSL Rohini through Ct Vijay(who was later examined as PW-4), as per the directions of the SHO vide RC No. 337/21/17, and proved the photocopy of the same as Ex. PW2/C bearing his signatures at point A. It was further submitted that after returning from the FSL, Ct Vijay produced acknowledgment of case acceptance which was pasted by PW-2 in Register no. 19, photocopy of which was proved as Ex. PW2/D. The witness also made an entry in this FIR No176/2017 State Vs. Alok Kumar Pal Page No. 34/38 Digitally signed by ARUL ARUL Date:
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regard in Register no. 19 from point A to A in entry Ex. PW-. PW2/A bearing his signatures at point-X. PW-4 Ct Vijay deposed that on 09.10.2017, on oral directions of the IO, he taken the two sealed pullandas mark A1 and B1 duly sealed with the seals of 3CPS NB Delhi and AS and copy of seizure, copy of FIR, FSL form, reached the FSL Rohini and deposited the aforesaid items thereat. The witness proved the RC No. 337/21/17 as Ex. PW2/C. The witness also proved the deposit of above items at the FSL, and proved the acknowledgment receipt as Ex.
PW2/D. This witness categorically deposed that case property remained intact till it remained in his possession and it was not tampered with in any manner.
44.The FSL report Ex.PW 11/A was proved by PW-11 Sh. Shailender Yadav, Senior Scientific Officer, FSL Rohini. The said witness deposed that on 09.10.2017, 2 sealed parcels were received in their office with FSL form and forwarding letter. The first parcel Mark A1 was sealed with the seal of PS NB 3C Delhi and AS and was found containing Ex. A1 ie light brown coloured powdery material kept in plastic pouch tied with rubber band stated to be heroine weighing 5.70 grams approximately. The second parcel Mark B1 was sealed with the seal of PS NB 3C Delhi and AS and was found containing Ex. B1 ie light brown coloured powdery material kept in plastic pouch tied with rubber band stated to be heroine weighing 5.8 grams approximately.
FIR No176/2017 State Vs. Alok Kumar Pal Page No. 35/38 Digitally signed by ARUL ARUL VARMA VARMA Date: 2023.05.17 17:09:47 - 0300
45. The witness deposed that on chemical, TLC, GC and GC-MS examinations, the exhibits were found to contain inter alia Diacetylmorphine. The witness, during his cross-examination, allayed the apprehension that the contraband items were tampered with. It was deposed by him that the exhibits were in his custody and he used the put the same in the almirah and had exclusive possession of the keys thereof. The witness also brought to the fore that he had completed MSC and Mphil in chemistry. Nothing could be elicited to dispute his competence or expertise. Thus, the factum of contraband item being heroine was cogently established by this witness.
G. FAILURE TO EXPLAIN CIRCUMSTANCES APPEARING AGAINST THE ACCUSED
46.It was contended by the State that the accused did not avail the opportunity to explain the circumstances appearing in the evidence against him, and only put forth a mere bare denial or replied to the accusations by merely stating that 'it is incorrect'. He could not explain recovery of contraband items from him. The accused did not even put forth a plea of alibi. He only averred in his defence that he is innocent and that the police officials have wrongly implicated him in the present case.
47. The fact of the matter is that contraband substance were recovered from the accused for which the accused had no substantial justification. There FIR No176/2017 State Vs. Alok Kumar Pal Page No. 36/38 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.05.17 17:09:55 -0300 is a presumption u/s 54 of the NDPS Act which lays down that in trials under the NDPS Act, it may be presumed that the accused has committed an offence, unless and until the contrary is proved. The expression' unless and until the contrary is proved', clearly imposes the burden of proving that possession of prohibited substance is legal, or that he was not so found in possession, is on the accused himself. In this case, neither the presumption could be rebutted, nor could the accused explain the circumstances appearing in evidence against him.
48.Furthermore, nothing could be elicited in the testimony of the prosecution witnesses, and nothing therein could be controverted by the accused. The veracity of the testimony of the witnesses was cogent and credible, and complete reliance can be placed upon them. In this context, it would be pertinent to reproduce the following extracts of Jagjeet Singh Vs State (2015 )219 DLT 199 wherein the court observed as thus;
"All these witnesses were subjected to lengthy cross- examination, however, nothing material could be elicited to discredit their testimony. It has further come in their statements that some independent persons were tried to be joined, however, none agreed. Ordinarily, the public at large show their disinclination to come forward to become the witness. If the testimony of the police officer is found to be reliable and trustworthy, the Court can definitely act upon the same. The Court cannot disbelieve the testimony of police officials solely on the presumption that a witness from the department of police should be viewed with distrust. This is also based on the principle that quality of the evidence weights over the quantity of evidence. These aspects have been highlighted in State of UP v. Anil Singh, 1989 SCC (Cri) 48; State (Govt. of NCT of Delhi) v. Sunil, 2001 SCC (Cri) 248; Ramjee Rai v. State of Bihar, (2007) 2 SCC FIR No176/2017 State Vs. Alok Kumar Pal Page No. 37/38 Digitally signed by ARUL ARUL VARMA VARMA Date:
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(Cri) 626; Kashmirilal v. State of Haryana, (2014) 1 SCC (Cri) 441. Appreciating the evidence on record on the anvil of the aforesaid principles, there is no acceptable reason to discard the testimony of the official witnesses which is otherwise reliable and trustworthy."
CONCLUSION
49.Ergo, in view of the reasons hereinabove discussed in extenso, this Court is of the considered view that the prosecution has proved beyond reasonable doubt that the accused Alok Kumar Pal was found in possession of 1.500 Kg of heroine on 06.10.2017, at about 02:05 PM, near Khatta Hanuman Park, Gurudwara Road, Taimur Nagar, Delhi, and is therefore convicted for the offence punishable under Section 21(c) of NDPS Act.
50.Further, in consonance with the provisions of Section 40 of the NDPS Act, the name and place of business and residence of the convict, nature of the contravention, the factum of the accused being convicted, be published in two English and two Vernacular newspapers and in news websites. Accordingly, copy of this order be sent to the DCP, to do the needful.
51. Put for arguments on quantum of sentence on 31.05.2023 Announced in the open court on.17.05.2023 Digitally signed by ARUL ARUL VARMA VARMA Date:
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(ARUL VARMA) ASJ-04 & Spl. Judge (NDPS) South-East District Saket Courts, New Delhi FIR No176/2017 State Vs. Alok Kumar Pal Page No. 38/38