Delhi District Court
State vs 1) Tauhid Khan @ Shahid @ Lambu on 27 November, 2020
IN THE COURT OF SH. AJAY KUMAR JAIN : SPECIAL JUDGE NDPS: PATIALA
HOUSE COURTS: NEW DELHI
Case No. SC/8721/2016
ID No. 02403R0083522012
FIR No. 17/12
PS Special Cell
U/s 21(c)/25(A)/29 NDPS Act
State Versus 1) Tauhid Khan @ Shahid @ Lambu
S/o Sh. Mallu Khan
R/o Village Mohanpur,
PS Faridpur, Distt. Bareilly, UP.
(In JC)
2) Ashhab Khan @ Sabbu Khan
S/o Sh. Nawab Khan
R/o Village Mohanpur,
PS Faridpur, Distt. Bareilly, UP.
(In JC)
3) Mohd. Tabrez
S/o Sh. Abdul Karim
R/o Village Maharaj Ganj,
PS Chauparan, Distt. Hazaribagh,
Jharkhand.
(In JC)
Date of Institution : 15.12.2012
Judgment reserved on : 24.11.2020
Date of pronouncement : 27.11.2020
JUDGMENT
1. Prosecution story as per charge sheet in brief is that on 23.07.2012 at around 10:15 PM, one secret information was received by SI Praveen Kumar through informer that one Tauhid Khan @ Shahid @ Lambu resident of Bareilly presently at Khoda colony would come on his bike and would go from Anand Vihar side via Ghazipur Murga Mandi T point. After recording of the said information, the concerned ACP directed to constitute the raiding party, but the accused did not turn up. Thereafter, the secret information was received at around 9:30 AM in morning of 24.07.2012 that Tauhid will deliver the large Case No. SC/8721/16 State Vs. Tauhid Khan & Ors. Dated: 27.11.2020 Page No. 1 of 56 consignment and will go towards Anand Vihar side via Murga Mandi side between 12:00 PM to 1:00 PM on motorcycle thereafter raiding party was constituted and went to the spot and asked the public witnesses to join, however, none joined. Nakabandi was done at the said T point with the help of barricade. HC Sanjeev Kr was positioned about ½ km from the spot towards UP border and was directed to inform upon mobile in case the motorcycle crosses him. At around 12.30 PM HC Sanjeev informed, thereafter, barricades were narrowed and the motorcycle was forced to stop then informer pointed towards accused Tauhid Khan who was carrying black colour bag upon his shoulder, but accused tried to run away after leaving his motorcycle however apprehended after chase of 2025 steps. SI Praveen Kumar informed about apprehension of accused to ACP. Notice u/s 50 was given to accused, however he refused to get himself searched in presence of gazetted officer or magistrate. From the search of bag two transparent polythene packets containing camel colour powder on testing found to be heroin was recovered. Each polythene was found to be containing around 1 kg of heroin. Separate samples were drawn and FSL form was filled. Rukka was prepared. The case property was deposited in malkhana and investigation was marked to SI Jitender Tiwari who reached the spot.
2. IO SI Jitender Tiwari prepared the site plan, arrested the accused, Nokia mobile having two SIM cards bearing no. 9411622923 and 956006594 were recovered from the possession of Tauhid Khan. From personal search a key ring having three keys and other articles were recovered. Accused Tauhid Khan disclosed that he can get recovered 1 kg of heroin kept in one of the two houses in Khoda Colony which had been taken on rent by accused Sabbu Khan @ Ashhab Khan. Thereafter, on search of the said house, 1 kg of heroin was recovered however none of the neighbours agreed to join the proceedings as stated they cannot give evidence against such persons. Seizing and sealing proceedings were conducted, samples were drawn, contraband was deposited in malkhana.
3. Mobile phones of suspects were on interception and it was found that areas in which they used to operate is Khoda Colony. On 26.07.2012, the cell ID of Case No. SC/8721/16 State Vs. Tauhid Khan & Ors. Dated: 27.11.2020 Page No. 2 of 56 accused Sabbu Khan was found located in the area of Jama Masjid thereafter the team led by SI Praveen Kumar alongwith accused Tauhid Khan which was already in the area of Khoda Colony was asked by Inspector Attar Singh to reach Jama Masjid and IO SI Jitender Tiwari who was in FSL Rohini to give the letter to record the voice samples of accused Tauhid Khan, on the instructions of Inspector Attar Singh IO reached Jama Masjid. At around 12.30 PM accused Ashhab Khan was identified by accused Tauhid Khan in the parking area of Parade ground, Jama Masjid. At around 12.35 PM SI Praveen Kumar alongwith SI Pramod Kumar, ASI Bhushan and accused Tauhid Khan sent to Rohini for taking voice sample of accused Tauhid Khan. Accused Sabbu Khan @ Ashhab Khan was given notice u/s 50 however nothing was recovered from his personal search. Arrest memo was prepared. Two SIM cards bearing mobile no. 9917819884 and 9917373910 were recovered from accused Sabbu Khan. Three keys and other articles were also recovered from personal search. He also disclosed that he used to supply heroin to Tabrez Khan, Phullo @ Kali, Ossi, etc through Tauhid Khan and Tabrez would come to receive heroin on Saturday in a restaurant at Khoda Colony. He also disclosed that he had taken three houses on rent in the area of Khoda colony and could get heroin recovered from the said houses. On 26.07.2012, the accused Tauhid Khan was taken to FSL in presence of public witnesses for recording of voice sample however voice sample of accused Sabbu Khan could not be taken due to his sore throat. He alongwith staff and accused Sabbu Khan departed from FSL Rohini to Khoda Colony, and from the first floor of house no. RC209, B Parbati Niwas, Rajiv Vihar, Khoda Colony which was on rent 5 liters of Acetic Anhydride and 500 gm of powder used in processing of heroin was recovered, thereafter at his instance 1 kg of heroin was recovered from his Wagon R car parked nearby to said house.
4. During investigation, accused persons were taken to their village in district Bareilly however nothing could be recovered from their house, but during monitoring of intercepted mobile numbers of Tabrez, Chand and other Case No. SC/8721/16 State Vs. Tauhid Khan & Ors. Dated: 27.11.2020 Page No. 3 of 56 associates, a call at 20.21 hours on 27.07.2012 was detected upon mobile no. 9891815612 used by Tabrez with mobile number 7209672766 used by Chand in which Chand asked Tabrez to meet Sabbu on 28.07.2012 before 07.00 AM to return 500 gm of heroin which was of poor quality, prior to this call also another call between Chand and Sabbu was recorded in which Chand talked about the poor quality of heroin. Sabbu Khan who was in PC was made to talk to Chand as a tactical move and Inspector Attar Singh recorded the said information on separate paper, thereafter, team went to Khoda Colony to arrest Tabrez who had to come to receive consignment of heroin from Sabbu Khan as per disclosure made by him. At about 06.13 AM on 28.07.2012Tabrez talked to his handler Chand stated that he was going to meet Sabbu Khan. Inspector Attar Singh recorded the said information at around 06.14 AM, thereafter trap was laid and accused Mohd. Tabrez was apprehended near NH24, second Pushta, Khoda Colony at the pointing out of accused Ashhab Khan. Accused Tabrez was carrying white plastic bag in his hand. None of the public persons gathered a the spot joined the proceedings. Notice u/s 50 was served to accused Tabrez however he refused to get himself searched in presence of gazetted officer or magistrate, and from the polythene packet 500 gm of heroin was recovered, seizure and sealing proceedings were conducted. A mobile phone Nokia having one SIM bearing no. 9891815612 was recovered from the possession of Tabrez.
5. Voice samples of Tabrez and Ashhab Khan were also taken at FSL after seeking prior permission of court and due consent of accused. Third disclosure statement of accused Ashhab Khan was recorded and thereafter in presence of Ashhab Khan on 30.07.2012 the team went to the house of accused i.e. RC 209B, Rajiv Vihar, Khoda Colony and collected the keys of house of Azad Vihar from the secret cavity of bed kept inside the house in Rajiv Vihar thereafter the house at Azad Vihar was searched three transparent polythene packets each containing biscuit colour powder were recovered and from the same bed, white colour powder in light parrot colour polythene was also recovered which was told to be phenobarbital weighed 5 kg, three transparent polythene bag found Case No. SC/8721/16 State Vs. Tauhid Khan & Ors. Dated: 27.11.2020 Page No. 4 of 56 to have been containing 1 kg each of heroin. Seizing and sampling proceedings were conducted.
6. During PC remand the mobile phones recovered from accused were kept on active mode and after expiry of PC remand were switched off and deposited in malkhana. The motorcycle recovered from accused Sabbu Khan was found in the name of Shabbo Begum who stated that she had purchased the said motorcycle and given it to Ashhab Khan. She was also having knowledge of accused involved in drug trafficking activities. The Wagon R car recovered at the instance of Ashhab Khan was found in the name of Irfan who stated that accused Ashhab Khan, his nephew had taken this car for personal use. The owners of three houses of accused Ashhab Khan @ Sabbu Khan were examined.
7. Accused Ashhab Khan @ Sabbu Khan was found to be kingpin and used to bring crude heroin from Bareilly to Khoda Colony where he used to process the same with the help of Tauhid Khan. He used to supply heroin to various persons with the help of Tauhid Khan in the area of Khoda Colony. Accused Ashhab Khan used to directly talk to the residents. Accused Mohd. Tabrez used to work as a carrier with one Chand and Chand used to talk with Ashhab Khan and sent Tabrez to receive heroin. The CDR of mobile phone of arrested persons shows their connectivity and intercepted calls between them is also another proof of their indulgence, association and conspiracy in drug supplying. The voice samples also matched. Accused Irfan Balidas @ Imran, Guddu, Ossi and Chand could not be arrested and on completion of investigation, chargesheet was filed.
8. Vide order dated 15.10.2013, all the accused were charged for commission of offence u/s 29 and 21(c) r/w section 29 and 21, 25(A) r/w 29 and also 21(c) r/w 29 NDPS Act. Accused Tauhid Khan @ Shahid @ Lambu, Mohd. Tabrez are also separately charged for offence u/s 21(c). Accused Ashhab Khan @ Sabbu Khan is separately charged for offence u/s 21(c) and 25(A) NDPS Act.
9. Prosecution for substantiating its case examined 30 witnesses. Summary details of their testimony is reproduced as under:
Case No. SC/8721/16 State Vs. Tauhid Khan & Ors. Dated: 27.11.2020 Page No. 5 of 56 Testimonies of IO, ACP, Inspector and other material witnesses of apprehension and recoveries
10. PW29 IO/SI Jitender Tiwari stated that on 24.07.2012 on the directions of Inspector Attar Singh he alongwith the team proceeded to Ghazipur Murga Mandi T point and found SI Praveen Kumar, and accused Tauhid Khan with other members. Accused Parveen handed over to HC Rajbir copy of seizure memo, six sealed parcels, FSL form, rukka and one motorcycle. He interrogated accused Tauhid Khan, prepared site plan, arrested accused, seized mobile phone of accused Tauhid, recorded his disclosure statement thereafter telephonically informed Inspector Attar Singh about disclosure of Tauhid Khan that he can recover 1 kg of heroin from his rented house taken by Sabbu Khan, thereafter with team went to his house no. 149, gali barat ghar, Shankar Vihar, Khoda Colony however neighbours not agreed to join the search. The house was opened with key found during personal search of Tauhid Khan and one transparent thaili was recovered containing 1 kg of heroin. Seizure and sealing proceedings were conducted and team left the house of accused at around 08.30 PM and reached PS Special Cell at about 09.30 PM. On 24.07.2012 accused was produced before the court and three days PC remand was taken.
11. On 26.07.2012, IO went to FSL office, Rohini for getting the date fixed for obtaining voice sample of accused Tauhid Khan and SI Praveen Kumar alongwith other staff and accused Tauhid Khan left for Khoda Colony however at around 11.30 AM, he was informed by Inspector Attar Singh to reach Jama Masjid area as the location of Sabbu Khan had been traced there, thereafter he returned from FSL office to his office and reached Jama Masjid at 12.10 PM. After five minutes SI Praveen Kumar alongwith team members and Tauhid also reached there. Inspector Attar Singh kept informing about the cell ID location of Sabbu Khan, then at about 12.40 PM on the pointing of accused Tauhid, accused Sabbu Khan was apprehended, then, he sent SI Praveen Kumar and other staff to FSL Rohini. Nothing incriminating was recovered from accused Sabbu Khan. Accused Sabbu Khan was arrested and produced before the court, Case No. SC/8721/16 State Vs. Tauhid Khan & Ors. Dated: 27.11.2020 Page No. 6 of 56 and then taken to FSL for obtaining his voice sample but could not be obtained as he was having soar throat. The accused disclosed about two rented premises in which he manufactures heroin, then accused taken to the house at Rajiv Vihar where the neighbours refused to join on the ground that they cannot participate in proceedings as accused is involved in drug supplying/trafficking. With the help of key which was found from his personal search, the house was opened and from the kitchen slab two big glass bottles, one small glass bottle and one plastic jar were found which were filled with chemical however on inquiry stated by accused to be needed for preparing heroin from crude heroin. These were seized and sealed. Accused Sabbu Khan was again interrogated who stated that he had shifted heroin in his Wagon R car when he came to know about the arrest of accused Tauhid Khan which was parked in the street. With the ignition key of car recovered from his personal search, car was opened and beneath the driver seat one polythene containing camel colour powder tested positive for heroin was recovered, sealing and seizure formalities were conducted.
12. On 27.07.2012, the team alongwith accused Ashhab Khan and Tauhid left for Bareilly. Nothing incriminating was found from the house of accused Ashhab Khan and Tauhid Khan. The brother of accused Tauhid Khan handed over driving license of accused Tauhid Khan. During the said time, the mobiles phones of accused were on interception. Inspector Attar Singh informed that as per interception of calls, one Chand who had received 500 gm of heroin would send his carrier Tabrez for returning the same to Ashhab Khan at Khoda Colony. Thereafter, on 28.07.2012 at around 06.55 AM, accused Mohd. Tabrez carrying white colour polythene identified by accused Ashhab Khan apprehended. The said polythene found to contain light brown colour powder which was found positive for heroin on testing. Sample and seizing proceedings were conducted. The mobile phone recovered from personal search of Tabrez already on interception was seized however not deposited in malkhana. Accused Tabrez was taken to his house at Jama Masjid however nothing was recovered from the Case No. SC/8721/16 State Vs. Tauhid Khan & Ors. Dated: 27.11.2020 Page No. 7 of 56 rooms. Two days PC remand of accused Tabrez was taken.
13. Accused Ashhab Khan on 30.07.2012 in subsequent disclosure statement disclosed that at ground floor in property at Azad Vihar, he had concealed 3 kg of heroin and 5 kg of phenobarbital in a secret cavity made in wooden bed. At around 06.00 AM they reached the said place and from the wooden bed, three keys in a key ring from secret cavity of bed was handed over, then they reached H.No. I61, Azad Vihar. 34 neighbours were requested to join but none agreed and from the cavity of bed in the left side room of ground floor, three transparent polythene containing biscuit colour powder and light parrot colour polythene containing white colour powder was recovered. On inquiry, accused stated the same to be phenobarbital. On testing, the biscuit colour powder, it was found to be heroin having 1 kg in each transparent polythene and weight of phenobarbital was found to be 5 kg. Seizing and sealing proceedings were conducted. Some utensils stated to be used for preparing pure heroin were also seized. In FSL Rohini the voice sample of accused Tabrez and Ashhab Khan were taken as per their intercepted calls.
14. On 08.08.2012, one CD each of intercepted voice call of accused Tauhid Khan, Tabrez and Ashhab Khan were prepared. The ownership of mobile phone recovered were verified however no mobile was found in their name. The Wagon R was found to be in the name of Irfan, distant relative of accused Ashhab Khan. One Babu Lal told that Ashhab Khan has purchased the house at Shankar Vihar from him. It was verified that while applying for electricity meter, accused Ashhab Khan has filed ownership of his house at Rajiv Vihar. Accused Ashhab Khan found to have taken on rent the house at Azad Vihar from one Saleem however Saleem could not present any rent receipt. Owner Babu Lal also produced one affidavit and documents of ownership stated that the payment of house was made by Ashhab Khan though the documents were executed in favour of Babu Lal.
15. In crossexamination stated that on 24.07.2012, he came to know about the present case at around 01.45 noon and reached spot at around 03.30 PM, and Case No. SC/8721/16 State Vs. Tauhid Khan & Ors. Dated: 27.11.2020 Page No. 8 of 56 not joined any independent witness either from office or at the spot. He remained present at Shankar Vihar from 06.30 to 07.30 PM, and at that time sun was setting, prepared the seizure memo at around 06.45 PM. He denied suggestion that disclosure statement of accused Tauhid was false and fabricated. No search warrant was taken for Shankar Vihar house. Accused Ashhab Khan was arrested on 26.07.2012. No independent witness were joined at the time of his arrest. Despite knowing the whereabouts of accused Ashhab Khan he did not go anywhere to apprehend him. The place of arrest i.e. parade ground was very thickly populated and accused was not resident of the said area. Two mobile phones were recovered from his possession. He came to know about the name of Sabbu Khan from the statement of Tauhid Khan two days prior to the raid at parade ground. Accused Tauhid Khan only told him about parade ground not any specific place with regard to arrival on 26.07.2012. He had not searched accused Ashhab prior to his apprehension on 26.07.2012, however SI Praveen Kumar raided the house at Khoda Colony. No public person was associated at the time of search. The mobile of accused was also on interception prior to his apprehension and they reached parade ground on the direction of Inspector Attar Singh as per interception of mobile number. He got information about parade ground from Inspector Attar Singh at around 11.00 AM and at that time he was in FSL Rohini and reached within 50 minutes from his office at Rohini. We searched the property on the same day at Rajiv Vihar, Khoda Colony on 26.07.2012. The key was recovered in his personal search memo. The chemical recovered from the said house as disclosed by accused is acetic anhydride powder however he could not conduct any test on the said substance. He also stated that he has not placed the permission given by ACP to hear the intercepted calls. On 04.08.2012, he finally retrieved those folders from computer and converted the same into different CDs.
16. In crossexamination on behalf of accused Tauhid Khan, stated that it is correct that SI Praveen sent the rukka after he reached at the spot. He did not inform local police after arrest of Tauhid and recovery from him. The sun was not set Case No. SC/8721/16 State Vs. Tauhid Khan & Ors. Dated: 27.11.2020 Page No. 9 of 56 when they reached Shankar Vihar. The key of said house was recovered from personal search of accused Tauhid. Public persons were residing at first and second floor however he did not ask them to join the investigation. No handing over memo of seal was prepared. No signature of accused were taken on parcels. No local police officials of PS Jama Masjid were informed. He denied suggestion that addresses on which SIMs were issued were genuine. He did not record statement of any person to prove that SIMs were issued on fake address.
17. In crossexamination on behalf of accused Mohd. Tabrez stated that he did not attach any call detail showing that Inspector Attar Singh made a call to him at around 08.45 PM when he was in Bareilly, however not informed the local police about the search. No public person was present at the time of apprehension of accused Mohd. Tabrez. He further stated he did not receive any call of Tabrez on the mobile phone of Tauhid and Ashhab Khan. He also stated that he tried to trace Chand however address was found fake. He denied suggestion that no such person in the name of Chand exists. The intercepted calls of all the accused were converted into CD however not attached any proof that CDs were issued from office. He is not having original orders dated 22.06.2012, 05.06.2012 and 02.07.2012 and denied suggestion that all these orders are manipulated.
18. PW4 SI Praveen Kumar stated that on 23.07.2012 one secret informer informed him that accused Tauhid Khan will come today at around 12 midnight from Khoda colony to Anand Vihar thereafter, he recorded the said information and informed Inspector Attar Singh who then informed ACP Subhash Tondon then he constituted the raiding party on instructions however, accused did not turn up despite waiting till 04.00 AM. Thereafter, on 24.07.2012 at 09.30 AM secret informer informed through telephone that accused will come on motorcycle between 12 noon to 01.00 PM, then, the said information was recorded in writing and on instructions raiding party was prepared. During the course, independent persons were asked to join the raiding party however two gave their names and addresses but other did not reveal their names but none Case No. SC/8721/16 State Vs. Tauhid Khan & Ors. Dated: 27.11.2020 Page No. 10 of 56 agreed, thereafter accused was stopped at around 12.30 PM found to be coming on motorcycle however after seeing the police he dropped motorcycle and started running towards UP side with bag but chased and apprehended. Accused was given notice u/s 50, however accused refused to be searched before gazetted officer or magistrate. From the bag of accused, 1 kg of heroin was recovered, samples were taken and FSL form was filled up. Motorcycle was also seized. SI Jitender Tiwari also prepared the site plan. From personal search one key ring containing three keys were also recovered alongwith one Nokia mobile phone of dual SIM. He made efforts to trace accused Ashhab Khan @ Sabbu Khan and Tabrez but none could be traced. On the next day during investigation, this accused pointed different places of search of Sabbu Khan but he could not be traced thereafter at around 11.30 AM Inspector Attar Singh through mobile of Ct. Sandeep informed that as per interception the location of Sabbu Khan is reflected in the area of Jama Masjid. Thereafter, they rushed to Jama Masjid area where SI Jitender Tiwari was already there and SI Ranjeet also arrived. Tauhid Khan pointed towards a person standing near Wagon R car parked at Parade ground by saying that he is Ashhab Khan @ Sabbu Khan. Thereafter, he was apprehended and upon instructions of Jitender Tiwari he left the place alongwith accused Tauhid Khan to FSL. In presence of public witness Rahul Raghav voice samples of accused Tauhid were taken by FSL expert. On 30.07.2012 accused Ashhab Khan @ Sabbu Khan during interrogation disclosed that he can get recovered the contraband from house at Azad Vihar and key of house is concealed at Rajiv Vihar. SI Jitender Tiwari took the key of house of accused Ashhab Khan situated at Rajiv Vihar and police party reached the said house and one key concealed in the cavity of the bed and the key was in the key ring having total three keys. Then the team went to Azad Vihar where neighbours asked to join raiding party but none agreed. Three polythene packets were recovered from the bed inside the room found to be tested positive for heroin. Separate samples were taken. Seal after use was given to HC Rajbir. From the right side of room articles meant for manufacturing of heroin were Case No. SC/8721/16 State Vs. Tauhid Khan & Ors. Dated: 27.11.2020 Page No. 11 of 56 seized.
19. In crossexamination on behalf of accused Tauhid Khan stated that the distance between their office and T point Ghazipur is 30 KM, and secret informer met him at T point Ghazipur itself and UP border is around 150200 mtr. On 24.07.2012, on receipt of another secret information he had taken same to office of ACP but SO was not found available. He has not issued any legal notice to public witnesses. He informed the apprehension of Tauhid Khan on the mobile phone of Inspector Attar Singh and ACP but not informed the local police. He prepared notice u/s 50 in his own handwriting. He also stated that he do not remember the mobile numbers which were on surveillance and the mobiles under interception were having names of Ashhab Khan @ Sabbu Khan, Tauhid Khan and Tabrez. During hearing, names of Chand, Ossi and Azad were also heard. He only heard the interception conversation but not recorded them. He also cannot tell the dates and time of hearing the conversation. He had not noted down the contents of conversation heard. He recovered the contraband from Tauhid Khan and HC Suresh and Rajbir assisted him. Articles recovered during jamatalashi of accused Tauhid were not sealed in separate pullanda. They did not have any photograph of Tabrez and Ashhab Khan but their physical description was disclosed by Tauhid Khan. He was in Khoda Colony when received the message from Inspector Attar Singh that accused was in Jama Masjid area. The polythene having inscription of thank you and black colour bag were not sealed in any pullanda but kept in open condition.
20. On behalf of accused Ashhab Khan, in crossexamination stated that secret informer left the spot after arrival of accused. He further stated that entire proceedings were concluded at 06.00 PM on 24.07.2012, and he left the spot at around 06.00 PM alongwith HC Suresh and all other members of raiding party left and went to the house of accused Tauhid Khan. He also heard the telephonic conversations between accused persons prior to 23.07.2012, and by then they were already known about the residential location of accused persons. On 24.07.2012 SI Jitender Tiwari left the spot at around 06.00 PM and returned Case No. SC/8721/16 State Vs. Tauhid Khan & Ors. Dated: 27.11.2020 Page No. 12 of 56 back by 07.30 PM and distance between the spot and house of Tauhid was about 1 km and SI Jitender Tiwari returned back to spot after 07.30 PM after conducting search of house of accused Tauhid. He did not enquire about the ownership of house of accused Ashhab from 23.07.2012 to 30.07.2012. Accused Tauhid did not tell him to locate Ashhab Khan between 06.0007.30 PM in the area however he had told physical description of accused Tabrez. Accused Tauhid told on 26.07.2012 the Ashhab can be traced in 45 houses and during this time he got a call from SI Jitender Tiwari who was present in FSL Rohini that Attar Singh told him that accused Ashhab is present in Jama Masjid, thereafter, met SI Jitender Tiwari at petrol pump which is situated in front of Jama Masjid at Subhash Park. The location of accused Ashhab was determined on the basis of Cell ID and while they were roaming accused Tauhid pointed out at Ashhab Khan who was standing near the Wagon R parked in parade ground parking. Then they surrounded accused Ashhab Khan however he did not prepare any pointing out memo then left the spot alongwith Tauhid for getting voice samples recorded. He further stated he do not remember the mobile numbers which were on surveillance in their office however the mobile phones under interception having names of Ashhab Khan, Tauhid Khan and Tabrez and there were other names also heard during the interception. He only heard the interception but not recorded. He had made entry for departing from Special Cell on 26.07.2012 for conducting investigation but cannot tell the number of houses that accused Tauhid pointed out in which accused Ashhab Khan was found. He also cannot tell the number of Wagon R next to which accused Ashhab was standing. The polythene having inscription Thank You and black colour bag were not sealed by him in any pullanda but kept in open condition.
21. PW27 Subhash Tandon, ACP stated that on 23.07.2012 at around 9.30pm SI Praveen Kumar, Insp Attar Singh along with SO met him at his office and submitted a written information that accused Tauhid Khan would come on motorcycle with large quantity of heroin and thereafter stated that on 24.07.2015 at around 6.20 AM again an information through telephone was Case No. SC/8721/16 State Vs. Tauhid Khan & Ors. Dated: 27.11.2020 Page No. 13 of 56 received by Insp Attar Singh that accused is coming on motorcycle thereafter he instructed Insp Attar Singh to proceed as per law. During examination in chief, Ld. Counsel for defence stated that this witness has written something on palm and this witness was directed to be careful by court. He also stated that report u/s 57 NDPS Act was presented to him. In crossexamination stated that he do not enquire from the officials regarding the informer and he had talked to Insp Attar Singh at 9.30 AM in the morning. At around 12.40 PM, he had talked with SI Praveen with regard to present case. He had not seen any disclosure made by accused Ashhab in his own handwriting. He further stated that he had mistakenly told that he was not present in the office on 24.07.2012, and on that day he came late in the office for some time only.
22. PW28 Insp Attar Singh stated that on 23.07.2012 SI Praveen Kumar informed about the information then recorded the said information upon a separate piece of paper and handed over the documents to SO to ACP and put up the same before ACP. SI Praveen along with team departed from office and waited at T point Murga Mandi. On 24.07.2012 SI Praveen came and informed telephonically then thereafter he informed ACP Subhash Tandon at his residence. At around 12.45pm, SI Praveen informed from his mobile about apprehension of accused Tauhid Khan then SI Jitender Tiwari deputed for further investigation. On 26.07.2012 SI Jitender Tiwari informed him about the arrest of accused Ashhab Khan at around 12.35 PM.
23. On 27.07.2012, when he was monitoring the interception of mobile number, and during monitoring, a call figured upon mobile number of Chand who was associated with Ashhab Khan @ Sabbu Khan that Tabrez would meet him tomorrow at 7am to return 500gm of poor quality of heroin then he recorded the information and put up before ACP. On 28.07.2012, he again monitored the interception and heard that he was living Ghazipur to return 500 gm of heroin then he recorded the information on separate piece of paper then informed SI Jitender Tiwari and SI Jitender Tiwari informed about the apprehension of Tabrez. On 30.07.2012 accused Ashhab Khan made supplementary disclosure Case No. SC/8721/16 State Vs. Tauhid Khan & Ors. Dated: 27.11.2020 Page No. 14 of 56 statement pursuant to which SI Jitender Tiwari along with team reached the house of accused Ashhab Khan and recovered the contraband. On 08.08.2012 SI Jitender Tiwari selected a few incriminating voice calls of 03 accused persons and copied these in CDs. These envelopes were seized with seal of JT in his presence. In crossexamination stated that SI Praveen Singh did not produce the informer to him. On 23.07.2012 the said information was not put up before ACP as he was not in the office but duly informed telephonically. No verification of subscribers were done before taking numbers for interception.
24. PW30 SI Rakesh Kumar stated that on 28.07.2012, he reached with staff to Khoda Colony where he also noticed SI Jitender Tiwari with his team along with accused Tauhid Khan and Sabbu Khan, meanwhile, Inspector Attar Singh informed that one Tabrez was about to reach as Tabrez had a talk with accused Chand. At around 6.15 PM a telephone call from Chand came on the phone of accused Sabbu Khan. At around 6.55am, accused Tabrez came on foot having a white colour polythene in his hand which is identified as accused Tabrez who is over powered. The notice u/s 50 NDPS Act was given and from search of polythene, 500 gms of heroin was recovered. SI Jitender Tiwari handed over the seal to him. One mobile was recovered from his personal search and another was also recovered which was already on interception, thereafter accused also taken to hospital vali gali Jama Masjid where from the search of house, no contraband was recovered. In crossexamination stated that he had no written instructions from Insp Attar Singh, and during his stay at the spot, he do not receive any telephonic call from any police staff. A telephone call came around 6.15pm on mobile of Sabbu Khan however he had not heard the conversation. The senior officer who gave the direction was Attar Singh. He do not remember whether any entry in the logbook was made by him or any member of raiding team with respect to government vehicle. He denied suggestion that SI Jitender Tiwari was not present at the spot at that time and he was in Delhi. It is correct that accused was given an offer that he can be taken to gazetted officer or magistrate before his search. It is correct that at that time no gazetted officer or Case No. SC/8721/16 State Vs. Tauhid Khan & Ors. Dated: 27.11.2020 Page No. 15 of 56 magistrate was present. He denied suggestion that accused was lifted from gali neem wali near Kasturba hospital, Delhi on 26.07.2012 with Shakir. It is also wrong to suggest that Shakir was released on 29.07.2012 without registration of any case. He further stated that accused Mohd. Tabrez did not disclose his address of Jama Masjid but disclosed his address of Jharkhand. No notice u/s 100 Cr.PC was served upon landlord of accused Tabrez. Name of landlord was Hari Singh. The colour of contraband from three pullandas was same. No police officials from UP police came to the spot and spot is situated in UP.
25. PW2 HC Suresh Kumar accompanied the raiding team on 23.07.2012 thereafter on 24.07.2012. He also stated that at around 12.30 PM on 24.07.2012 HC Sanjeev informed SI Parveen about the motorcycle. Accused after seeing the police dropped the motorcycle and started running towards UP side with bag. Accused refused to call any officer or magistrate for search. From the shoulder bag, 2 transparent polythene bags were recovered containing heroin of weight of 1 kg. He further stated that on 26.07.2012, he joined investigation with SI Parveen and reached Khoda Colony at around 07.00 AM and at around 11.30 AM Inspector Attar Singh through mobile of Ct. Sandeep informed SI Parveen that location of Sabbu Khan is reflected in the area of Jama Masjid. From the personal search of accused Sabbu Khan one carbon copy of driving license, two mobile phones, three keys and one remote car key, etc were recovered. At around 06.30 PM, he alongwith SI Jitender Tiwari and team reached Rajiv vihar, Khoda Colony and accused took police party to H.No. RC 209B, Parbati Niwas saying that he is residing at first floor. The containers were sealed and at his pointing out from the Wagon R car 1 kg of heroin was recovered. On 27.07.2012 accused Tauhid and Sabbu Khan took the raiding party to their village. In crossexamination stated that he is not aware whether the mobile being used by Tabrez was under surveillance before his apprehension or not. The call was received by SI Parveen on 24.07.2012 but not in his presence. SI Parveen prepared notice u/s 50 in his own handwriting and SI Jitender Tiwari reached the spot at around 03.25 PM. The key of motorcycle Case No. SC/8721/16 State Vs. Tauhid Khan & Ors. Dated: 27.11.2020 Page No. 16 of 56 and other articles recovered from search of accused were not sealed.
26. PW8 Ct. Sandeep joined the investigation with SI Praveen on 26.07.2012 alongwith ASI Bhushan, ASI Prabodh, ASI Ranjit, HC Rajbir and Ct. Suresh and left the office at around 06.00 AM with accused Tauhid, reached Khoda Colony at 07.00 AM, accused Sabbu Khan was searched at 34 places but he could not be traced and at around 11.30 AM Inspector Attar Singh called him on his mobile and stated that he wants to speak to SI Praveen. Thereafter, informed that accused Sabbu Khan is found to be present in the area of Jama Masjid. Then they rushed to Jama Masjid. The staff was deployed by Jitender Tiwari in different strategic area. At around 12.30 PM accused Tauhid pointed towards accused Ashhab Khan standing near Wagon R car thereafter, he was apprehended. No contraband was recovered from his personal search however two mobile phones, three keys and one remote car key was recovered. He was produced before the court and remanded and the application for recording of his voice sample was also allowed thereafter, at FSL in presence of public witness Rahul, the voice samples were recorded. At around 06.30 PM they reached Khoda Colony, Rajiv Vihar and from the kitchen, two big, one small glass bottle and one plastic jar was recovered found to contain a chemical which stated by the accused used for manufacture of heroin. He further stated that he has concealed 1kg in his house and after arrest of Tauhid Khan, 1 kg in the car belonging to his relative, then pointed out the car from which heroin was recovered. Car was opened by SI Jitender Tiwari from the remote key recovered from his personal search.
27. In crossexamination on behalf of Tabrez stated that he do not know which mobile phone was used by Tabrez under surveillance. On crossexamination on behalf of Tauhid stated that he know that some of the mobile number were on surveillance of accused persons on 26.07.2012 but SI Jitender did not disclose the mobile numbers and user name of mobile numbers. He do not remember whether SI Praveen requested public persons to join proceedings at Khoda Colony. He also do not remember any gali with respect to search of accused Case No. SC/8721/16 State Vs. Tauhid Khan & Ors. Dated: 27.11.2020 Page No. 17 of 56 Ashhab. He also do not know whether SI have any mobile number on 26.07.2012 when they were at Khoda colony. Inspector Attar Singh did not disclose any information to him at him mobile number. He had no knowledge that anyone informed local police about the investigation conducted by SI Praveen on 26.07.2012. They reached FSL Rohini at around 04.25 PM.
28. PW10 HC Rajbir stated that on secret information on 23.07.2012, they did not find the accused thereafter again reached the spot on secret information on 24.07.2012 and at 12.30 PM HC Sanjeev informed SI Praveen on his mobile about the motorcycle, then the staff was alerted by SI Praveen and HC Suresh intercepted the way by putting barricade. Accused came on motorcycle near barricade having rexine bag on his shoulder however after seeing police party started running towards UP side with the bag. After being chased about 1015 steps he was apprehended. From the bag, 1 kg of heroin was recovered. He took the rukka from the spot and reached Lodhi Colony at around 04.05 PM and produced rukka before Duty Officer and other contraband and FSL form before SHO. On 30.07.2012 he joined investigation with SI Jitender Tiwari and in his presence the disclosure statement was recorded at around 04.00 AM then they reached at Khoda Colony at around 06.30 AM, took the key of the house of accused Ashhab Khan at Rajiv Vihar, and thereafter took three keys from the cavity of bed and on opening the ground floor from the bed, three polythene packets each containing 1 kg of heroin was recovered. On calling of SI Jitender Tiwari, one vehicle for transporting the recovered items reached at around 10.00 AM then they left for Azad Vihar. On 30.07.2012 after effecting recovery from Ashhab Khan, the seal was handed over to him by IO. IO recorded voice sample of accused Ashhab and Tabrez, and prepared a CD and same were sealed with the seal of RK.
29. In crossexamination stated that secret informer met SI Praveen at spot. He do not remember what colour clothes were worn by secret informer. He do not know of which PS the barricades belong however UP border is around ¼th KM. HC Sanjeev was stationed ½ KM away from other members. The polythene bag Case No. SC/8721/16 State Vs. Tauhid Khan & Ors. Dated: 27.11.2020 Page No. 18 of 56 bearing word thank you and rexine bag were taken into possession but not sealed. He left the spot with rukka at around 03.30 PM. Key and helmet recovered alongwith motorcycle were not sealed in separate pullanda.
30. PW14 HC Hawa Singh stated that he joined investigation and reached spot i.e. T point, Murga Mandi at around 03.30 PM with SI Jitender Tiwari and HC Rajbir. At spot, SI Jitender Tiwari conducted investigation and at around 06.00 PM they reached residence of accused at Ghaziabad and from the small room, one iron box was opened and one polythene lying in the box found to have containing heroin weighed around 1 kg. In crossexamination stated that at spot all the writing work was done by SI Jitender Tiwari while sitting in government vehicle. The box in which alleged contraband was recovered was not seized by SI Jitender Tiwari. He do not have any knowledge that any public person was gathered at the spot i.e. 149, Shankar Vihar, Khoda Colony which is situated in UP. Seal after use was not handed over to anyone by SHO. Seal was returned to SI Jitender Tiwari by him on 31.07.2012.
31. PW15 ASI Rajbir Singh accompanied Jitender Tiwari and Hawa Singh to the spot i.e. Murga Mandi Chowk and stated that the investigation was conducted by SI Jitender Tiwari at the spot, then he alongwith SI Jitender Tiwari and Hawa Singh sent to house of accused Tauhid alongwith Tauhid and from the box 1kg of heroin was recovered. In crossexamination stated that no personal search memo was prepared in his presence.
32. PW17 HC Radha Krishan stated that on 28.07.2012, he alongwith team with ASI Rakesh Kumar and others went to Khoda Colony where met Jitender Tiwari with staff, and at around 06.55 AM accused Tabrez came on foot with white colour plastic bag, and when he crossed the Scropio, he was apprehended. From the polythene ½ kg of heroin was recovered. In crossexamination stated he had not heard any conversation on his own and at the time of apprehension, no public person or secret informer accompanied them. He do not remember whether SI Jitender Tiwari or ASI Rakesh asked public persons to join investigation after their arrival at the spot and before apprehending accused Case No. SC/8721/16 State Vs. Tauhid Khan & Ors. Dated: 27.11.2020 Page No. 19 of 56 Tabrez. IO Jitender Tiwari briefed them about the intercepted mobile conversation at around 08.30 PM between one Chand and Tabrez that he had been collecting heroin of inferior quality and the interception between Chand and Ashhab where Chand informed Ashhab that Tabrez would be coming to return the inferior quality. Tabrez did not try to run away from the spot. SI Jitender Tiwari received telephonic call from Inspector Attar Singh of Special Cell about arrival of accused at the spot. He denied suggestion that accused was lifted from H.No. 3867, Gali Hospital Wali, Jama Masjid and contraband was planted over him.
Testimonies of other police officials, nodal officers, experts, etc
33. PW1 Amar Nath Singh, Nodal Officer, Idea exhibited the call records of mobile no. 9917375910, 9917819884, 9891815612 and 8750576557.
34. PW3 Chandrashekhar, Nodal Officer exhibited the call record of mobile no. 9560065945 and stated that this number was allotted to one Guddu however in crossexamination stated that he cannot tell whether Mr. Guddu had made any request to deactivate the number and stated that it is correct that the said number is not in the name of Tabrez.
35. PW5 Rahul Raghav is the public witness who joined the investigation with SI Praveen and went to FSL and in his presence voice sample of accused Tauhid was recorded. He denied suggestion that the voice sample of accused Tauhid were recorded at Special Cell. PW6 Ram Avtar is the witness to recording of voice sample of accused Tabrez and Ashhab Khan. PW7 Rajesh Kain, Nodal Officer, BSNL brought the call records of mobile no. 9411622923 stated that this number belong to one Guddu.
36. PW9 Balkar Singh, Duty Officer who recorded FIR exhibited roznamcha and DD No.7A. PW11 Saleem Khan owner of H.No.63, Khasra No. 325, Azad Vihar, Khoda Colony stated that said house consists of ground floor and first floor. Police did not enquire anything from him though the police had taken his signatures on some papers. Accused Ashhab and Tauhid are residents of their village. He used to live on ground floor and first floor was locked. Ashhab Khan Case No. SC/8721/16 State Vs. Tauhid Khan & Ors. Dated: 27.11.2020 Page No. 20 of 56 also resides in Ghaziabad near Yadav Chowk. He never resided at first floor of his premises. After declaring him hostile, in crossexamination stated that he purchased the said house in 2009 for Rs. 8 lacs. He further stated he know Ashhab Khan and they used to visit each other's house on the occasions of marriage and presently Ashhab Khan is in jail for last two years however denied that Ashhab was his tenant at first floor and he accompanied the court with Mehtab, brother of Ashhab however he did not instruct him what to depose in court.
37. PW12 Irfan, owner of Maruti Wagon R car stated that he handed over the said car to accused Sabbu Khan 1012 days before he was arrested. He was his distant relative. In crossexamination stated that he came to know about the arrest of accused only when the police came to his village however police officials had not brought any photograph of accused. He however could not meet the police because had gone to Aligarh to buy some medicines. He denied suggestion that he had not given said vehicle to accused.
38. PW13 Rajkumar, Assistant Account Officer, Vidyut Nagri, Khoda Colony exhibited the electricity connection of house at Rajiv Nagar, Khoda Colony with photocopy of registry purchased from Raja Ram.
39. PW16 Sh. Dinesh Kumar, LDC stated that order regarding interception was destroyed.
40. PW18 HC Harpreet is a witness of recording of voice sample at FSL of accused Sabbu Khan and Tabrez. In crossexamination stated that both HC Hawa Singh and ASI B.B. Gurang were present when voice of accused were taken. He do not remember what accused persons were made to say at the time of recording of voice samples. He further stated that he do not remember if the cassettes in question were played prior to recording of the voice.
41. PW19 HC Harjeet Singh deposed that he deposited FSL form and other documents to FSL, Rohini. In crossexamination stated that FSL form was filled not blank however cannot tell how many seals of RK and JT were on individual envelopes.
Case No. SC/8721/16 State Vs. Tauhid Khan & Ors. Dated: 27.11.2020 Page No. 21 of 56
42. PW20 Inspector R.S. Sehrawat, SHO Special Cell who sealed the parcels produced before him on respective dates. In crossexamination stated that IO can explain the blanks appearing in statements and he had not made any personal efforts to know about the recovery from accused persons.
43. PW21 SI Gyan Chand, SO to ACP stated that he received secret information written on paper alongwith DD No.35. Same was put up before ACP Subhash Tondon, thereafter, another secret information recorded on 24.07.2012. On 25.07.2012 and 27.07.2012 received report u/s 57 NDPS Act. Thereafter on 28.07.2012 a secret information written on paper was received in the office of ACP through Attar Singh. In crossexamination stated that he do not remember whether the secret information was received in morning, noon or evening. Inspector Attar Singh never requested ACP to join raiding party.
44. PW22 V Lakshmi Narasimhan, Sr Scientific Officer, FSL, Rohini exhibited the voice sample report of the accused persons Ex PW22/A. The voice samples of accused persons were found matched.
45. PW23 Babu Lal stated that he do not know accused Sabbu Khan @ Ashhab Khan however police came to his place perhaps one or two years back asking accused Sabbu Khan @ Ashhab Khan and he replied that he had no knowledge about said accused Sabbu Khan @ Ashhab Khan however during search of premises, police had recovered documents pertaining to property belonging to him under the bed however he do not remember to whom the said property was let out. On being crossexamined after declared hostile by Ld. Addl. PP denied suggestion that accused Sabbu Khan met him in Khoda Colony and choose the plot of 25 yards in Shankar Vihar, Khoda Colony which belonged to one Geeta. He also denied the suggestion that he continuously asked Sabbu Khan to transfer the said house in his name and also denied that he came to know about Sabbu Khan who used to prepare heroin in the said premises. He also denied suggestion that house no. 149, Shankar Vihar whose number was alloted subsequently does not belong to him however admitted his signatures on affidavit and sale deed, also identified the signatures of Geeta on sale deed.
Case No. SC/8721/16 State Vs. Tauhid Khan & Ors. Dated: 27.11.2020 Page No. 22 of 56 Further denied the suggestion that he handed over the documents to police on 04.11.2012 but documents were taken by police when they had searched the premises. He denied the suggestion that he purchased the said property and inducted Sabbu Khan as tenant in the said property. In crossexamination stated that it is correct that at the instance of police, the document Ex PW23/B was prepared and had not read the contents of said document but signed the said paper out of fear of police. He further stated that he could not identify the accused Sabbu Khan.
46. PW24 HC Sanjeev Kumar, MHC(M) who exhibited entries of malkhana register no. 19. PW25 ASI Shamsher Singh deposited the exhibit pullandas to FSL. PW26 Dr Lingraj Sahoo, SSO, FSL, Rohini exhibited the FSL report of contraband.
47. All the accused in their statements u/s 313 Cr.PC denied the incriminating circumstances put to them and stated that they are falsely implicated in this case. Accused Ashhab Khan also stated that he was forcibly taken by Special Cell officials from his home and brutally tortured to sign many blank papers etc and wanted to lead DE. Accused Tabrez also stated that he was lifted from rented accommodation at gali hospitalwali, Jama Masjid.
48. Accused Ashhab Khan examined DW1 Rafiq Khan who stated that on 23.07.2012 at around 07.00 AM when he was standing outside his house for brushing his teeth, Delhi police officials saw pulling the accused from his house and took him from there. In crossexamination stated that 1015 neighbours were also connected and he had seen police prior to that also at his house, and he himself came to the court today and he do not know if accused Ashhab Khan is arrested in this case, further denied suggestion that he is deposing on legal advise.
Material exhibits
49. Ex.PW4/E is the rukka. Ex.PW9/A is the FIR. Ex.PW29/B is the site plan of place of apprehension of accused Tauhid Khan. Ex.PW9/F is the site plan of H.No. RC209B, Rajiv Vihar from where the chemical and powder were Case No. SC/8721/16 State Vs. Tauhid Khan & Ors. Dated: 27.11.2020 Page No. 23 of 56 recovered as well as the place from where Wagon R car containing heroin was recovered. Ex.PW29/H is the site plan of H.NO. I61, Azad Vihar, Khoda Colony, from the ground floor room from the single bed 5 kg of phenobarbital and 3 kg of heroin was recovered. Ex.PW29/D is the site plan of H.NO. 149, Shankar vihar, Khoda Colony from where 1 kg of heroin was recovered from the iron box. Ex.PW17/A, PW2/A, PW2/I are the notices u/s 50 to accused Tabrez, Tauhid Khan and Ashhab Khan. Ex.PW2/G is the seizure memo of heroin from accused Tauhid Khan. Ex.PW15/A is the seizure memo of heroin from the house pointed out by accused Tauhid Khan. Ex.PW2/B is the seizure memo of heroin from Wagon R car. Ex.PW2/O is the seizure memo of chemicals at the instance of accused Sabbu Khan. Ex.PW4/J is the seizure memo of heroin and phenobarbital from accused Ashhab Khan. Ex.PW13/C is the seizure memo of 500 gm of heroin from Mohd. Tabrez. Ex.PW2/D is the seizure memo of motorcycle from accused Tauhid. Ex.PW2/Q is the seizure memo of Wagon R car. Ex.PW29/I is the seizure memo of original papers and one affidavit by Babu Lal Chauhan of H.No. 149, Shankar Vihar, Khoda Colony by stating the said house is of accused Ashhab Khan @ Sabbu Khan however it was in his name. Ex.PW4/K is the seizure memo of utensils from H.No. 61, I Block, Azad Vihar. Ex.PW2/T is the seizure memo of driving license of accused Tauhid Khan. Ex.PW4/I is the seizure memo of key pointed out by accused Ashhab Khan at H.No. RC209B, Rajiv Vihar from the secret cavity of a bag in a key ring containing three keys stated to be of H.No. 61, I Block, Azad Vihar. Ex.PW28/F dated 08.08.2012 of seizure memo of three CDs of voice recordings. Ex.PW4/G, Ex.PW29/J and PW29/K is the seizure memo of audio cassettes of voice samples of accused Tauhid Khan, Ashhab Khan and Tabrez. Ex.PW10/A is the seizure memo of palang (diwan) from H.No. 61, I Block, Azad Vihar from which 5 kg of phenobarbital and 3 kg of heroin was recovered. Ex.PW30/A is the seizure memo of mobile phone Nokia no. 9891815612 which is on legal interception from accused Tabrez. Ex.PW2/G is the seizure memo of mobile phone Nokia having two SIMs 9411622923 and 9560065945 from accused Case No. SC/8721/16 State Vs. Tauhid Khan & Ors. Dated: 27.11.2020 Page No. 24 of 56 Tauhid Khan. Ex.PW2/Q, PW2/S and PW2/K is the seizure memo showing no recovery from house of accused Tauhid Khan and Ashhab Khan from their villages. Ex.PW2/L, PW17/D, PW2/E are the arrest memos of accused Ashhab Khan, Mohd. Tabrez and Tauhid Khan. Ex.PW30/B, PW29/C and PW29/E are the body inspection memos of accused Mohd. Tabrez, Tauhid and Ashhab Khan. Ex.PW2/M is the personal search memo of Ashhab Khan showing recovery of driving license, two mobile phones bearing no. 9917819884 and 9917375910, one car key with remote, three keys, one purse having cash of Rs. 2200/. Both these mobile phones stated to be kept open. Ex.PW2/F is the personal search memo of accused Tauhid Khan with recovery of 1 keyring with three keys. Ex.PW17/E is the personal search memo of accused Tabrez with recovery of mobile phone Nokia 8750576557.
50. Ex.PW2/H is the disclosure statement dated 24.07.2012 of accused Tauhid Khan in which he disclosed that accused Sabbu Khan is his cousin brother and residents of same village used to supply the heroin, and one year back he started residing with Sabbu Khan at Khoda Colony and he is also supplying heroin to one Tabrez residing near Jama Masjid and also to other persons. He had also supplied heroin to one Shabbo r/o Loni. He further disclosed mobile number of Tabrez 9891815612. He also disclosed that he can arrest Sabbu Khan from whom heroin can be recovered and he had also received one motorcycle in marriage solemnized on 10th of June, and today he is sent for supply of heroin by accused Sabbu Khan near Anand Vihar bus stand. Sabbu Khan has already taken one house at Shankar Vihar and in that house around 1 kg of heroin is lying. Ex.PW2/N is the disclosure statement dated 26.07.2012 of accused Ashhab Khan @ Sabbu Khan stating that accused Tauhid is related to him and used to work with him for supply of heroin and he used to supply heroin to Tabrez also and other persons. He used to direct Tauhid Khan from his mobile no. 9560065945 for supply of heroin and the persons used to take heroin from his house at Khoda Colony. He also has another house in Khoda Colony where he used to prepare the raw material. He also had a talk with Tabrez who also Case No. SC/8721/16 State Vs. Tauhid Khan & Ors. Dated: 27.11.2020 Page No. 25 of 56 resides in Jama Masjid area who will come to take delivery on Saturday. He used to talk from his mobile no. 9917375910 and 9917819884. Ex.PW4/H is the supplementary disclosure statement dated 30.07.2012 in which he disclosed that he had one more H.No. 61, I Block, Azad Vihar where he had concealed the heroin and phenobarbital and the key of that house is concealed in his house at Rajiv Vihar. Ex.PW8/A another supplementary disclosure statement dated 26.07.2012 of accused Ashhab Khan in which he alleged that as Tauhid Khan was already apprehended therefore he has concealed the heroin in Wagon R car which was lying outside the house. Ex.PW17/F is the disclosure statement of accused Mohd. Tabrez dated 28.07.2012 in which he stated that he met Sabbu Khan through Chand and also disclosed that Chand used to tell him from his mobile no. 9661789955 to collect the heroin from Sabbu Khan through his mobile no. 9891815612. He used to take supply from Sabbu Khan and Tauhid by talking on their mobile by coming nearby Khoda Colony.
51. Ex.PW28/D, PW28/B, PW28/E, PW28/A and PW4/F are the reports u/s 57 of accused Tabrez, Ashhab Khan and Tauhid. Ex.PW28/C is the information recorded by Inspector Attar Singh on 27.07.2012 regarding intercepted call at around 2021 hours on 27.07.2012 between accused Tabrez and Chand in which Chand was asking to meet Sabbu tomorrow before 07.00 AM. Ex.PW4/A is the secret information recorded at around 10.15 PM on 23.07.2012. Ex.PW21/C is the entry on this DD the direction of ACP to proceed accordingly. Ex.PW4/C is the secret information recorded by SI Parveen at around 09.30 AM through telephone that accused Tauhid will come from Khoda Colony side on his motorcycle and will go to Anand Vihar Side through Ghazipur Murga Mandi T Point between 1201.00 PM. Ex.PW27/C is the direction of ACP to conduct raid as per secret information. Ex.PW4/B (Ex.PW21/A) is the DD No. 35 dated 23.07.2012 recorded at around 10.45 PM regarding secret information received at 10.15 PM. Ex.PW27/B is the direction of ACP to proceed. Ex.PW4/D is the DD No.6 dated 24.07.2012 recorded at 09.40 AM of the information received by SI Parveen at around 09.30 AM. Ex.PW27/D is the direction of ACP to conduct Case No. SC/8721/16 State Vs. Tauhid Khan & Ors. Dated: 27.11.2020 Page No. 26 of 56 raid as per secret information. Mark A1 is the DD No. 33 dated 28.07.2012 recorded at 06.20 AM regarding receiving of a mobile call on phone number 9661789955 at computer system at around 06.13 AM. Mark A (Ex.PW28/C) information dated 27.07.2012 recorded by Inspector Attar Singh about interception of mobile call from no. 9891815612 used by accused Tabrez and mobile no. 7209672766 used by Chand thereafter another call at 20.18 hours between mobile no. 9661789955 and 9917375910 about sending of Tabrez to return the poor quality of heroin. Ex.PW29/A is the DD No. 19 dated 24.07.2012 recorded at 02.00 PM regarding handing over of investigation to SI Jitender Tiwari. Ex.PW29/D is the DD No. 34 dated 24.07.2012 regarding investigation and arrest of accused Tauhid Khan on 24.07.2012. Ex.PW29/W is the DD No. 7 dated 27.07.2012 regarding investigation conducted on 27.07.2012 from accused Ashhab Khan. Ex.PW29/X is the DD No. 13 dated 28.07.2012 of investigation conducted from accused Tabrez. Ex.PW29/Y is the DD No.10 dated 30.07.2012 is the departure at around 05.00 PM by SI Jitender Tiwar with team. Ex.PW29/Z is the DD No. 24 dated 30.07.2012 regarding investigation conducted on 30.07.2012. Ex.PW29/AA is the DD No.2 dated 31.07.2012 is the departure entry for deposit of exhibits at FSL Rohini. Ex.PW20/A is the DD No.8A dated 24.07.2012 regarding deposit of case property. Ex.PW20/B is the DD No.11A dated 24.07.2012 regarding deposit of case property. Ex.PW20/C is the DD No.2A dated 27.07.2012 regarding deposit of case property. Ex.PW20/D is the DD No.4A dated 28.07.2012 regarding deposit of case property. Ex.PW20/E is the DD No.4A dated 30.07.2012 regarding deposit of case property. Ex.PW29/M is the information from State transport department of motorcycle no. DL 7SBJ 7536 in the name of Sabbo Begum. Ex.PW29/O is the information that Wagon R UP 21AC 6123 is in the name of one Irfan. Ex.PW29/B is the letter of IO asking about the electricity connection of house of Ashhab Khan at Rajiv Vihar, Khoda Colony. Ex.PW1/F is the CDR of mobile no. 9891815612, 9917819884. Ex.PW1/B is the CDR of mobile no. 9917375910. Ex.PW1/D is the CDR of mobile no. 9917819884.
Case No. SC/8721/16 State Vs. Tauhid Khan & Ors. Dated: 27.11.2020 Page No. 27 of 56 Ex.PW29/R is the transcription of recorded mobile conversations. Mark PW29/X, Y are the letters of Addl. Deputy Commissioner of Police to Nodal Officer regarding interception of mobile numbers. Ex.PW23/B is the affidavit of Babu Lal wherein he stated that the property at Rajiv Vihar Khoda Colony is in his name however the entire money is of Sabbu Khan alongwith original papers of said property showing to be purchased from one Geeta. Ex.PW3/B is the CDR of mobile no. 9560065945 from 01.07.2012 to 26.07.2012. Ex.PW7/B is the CDR of mobile no. 9411622923 from 06.07.2012 to 20.07.2012. Ex.PW12/A (colly) are the photographs of Wagon R car found to be parked. Ex.PW13/A, PW13/B and PW13/D are the documents showing electricity connection at Rajiv Vihar, Khoda Colony house in the name of accused Ashhab Khan. Ex.PW16/A (colly) is the notification of Ministry of Communication and Information. Ex.PW16/A is the list of interceptions which are destroyed of Superintendent Home, Government of NCT. Ex.PW21/P, PW21/N are the reports u/s 57 regarding seizure of 3 kg of heroin and 5 kg of phenobarbital and 500 gm heroin from accused Tabrez. Ex.PW21/K is the information dated 28.07.2012 recorded by Inspector Attar Singh regarding interception received at 06.13 AM upon mobile 966178995 used by Chand which was informed to ACP at around 06.20 AM. Ex.PW21/L is the DD No. 33 regarding the said information. Ex.PW21/I is the information regarding receiving of intercepted call at 20.21 PM on 24.07.2012 thereafter another interception at 20.18 PM reported to ACP at around 08.50 PM. Ex.PW21/A1 to PW21/Q are the DD entries in register at ACP office. Ex.PW21/D and PW27/E is the report u/s 57 regarding recovery of 1 kg of heroin from accused Tauhid and seizure of heroin from house of accused Tauhid. Ex.PW22/D is the forwarding letter of FSL. Ex.PW24/A to PW24/S are the malkhana entries. Ex.PW24/Y, Y1 and Y2 are the acknowledgment of deposit of case property at FSL. Ex.PW24/Z, Z1 and Z2 are Road Certificates. Ex.PW22/A and PW22/C is the voice sample report. Ex.PW26/A is the FSL report over the contraband heroin.
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52. Ld. Counsel for accused Tauhid submitted that in this case first secret information was received on 23.07.2012 at around 10.15 PM regarding raid but no search warrants were obtained which is non compliance of mandatory provisions u/s 42 NDPS Act. Ld. Counsel further submits that there is contradiction in testimony of PW4 and PW28 over the timining of receiving information and informing the same to Inspector Attar Singh. PW4 stated that he received information at around 10.15 PM however PW28 Inspector Attar Singh stated to have received the information at around 10.20 PM and PW27 ACP Subhash Tondon on the other hand submitted that the said secret information received at around 09.30 PM. Furthermore, PW29 SI Jitender Tiwari reached the spot even before sending of rukka at around 03.30 PM which creates doubt over the prosecution story (relied upon State Vs. Ramesh 2013(2) JCC 66). Ld. Counsel submits that as per PW2 and PW4 after apprehension of accused Tauhid and recovery, SI Jitender Tiwari left the spot with accused leaving PW2 and PW4 at the spot, and then SI Jitender Tiwari again came to spot after recovery and left to PS Special Cell however PW29 stated that all the members were with him and after second recovery they all proceeded to PS Special Cell and did not return back to spot i.e. Ghazipur T Point. The prosecution also failed to connect motorcycle DL SBJ 5376 with the accused. The owner of motorcycle was not examined during investigation or in the court. The prosecution also not able to connect accused Tauhid with the house at Shankar Vihar from where the alleged recovery has been made. Ld. Counsel submits that prosecution has not examined the three material raiding team members i.e. ASI B.B. Gurang, ASI Bhushan and HC Sanjeev which itself creates doubt over the fact whether they are raiding team members or not. No independent witness was joined at any point of time. The recovery from the premises at Shankar Vihar which is in UP was conducted however no local police was informed before and after the recovery, therefore creates definite doubt over the prosecution case. The prosecution stated that various mobile phones were on interception however unable to connect the accused with those Case No. SC/8721/16 State Vs. Tauhid Khan & Ors. Dated: 27.11.2020 Page No. 29 of 56 numbers. Prosecution also failed to examine or interrogate the concerned actual consumer of mobiles which is required as per the judgment passed by Delhi High Court in case titled Ram Prakash Vs. State MANU/DE/3328/2014, Mohd. Masoom Vs. State of NCT MANU/DE/1067/ 2016. Furthermore, the entire case of prosecution is the recovery on the basis of secret information not on the basis of any interception. Prosecution also failed to file the orders of interception before this court and the prosecution utterly failed to prove the circumstance of arrest and recovery from present accused and his connections with coaccused hence the present accused is entitled to be acquitted.
53. Ld. Counsel for accused Tabrez stated that the present accused is falsely implicated and has nothing to do with the commission of crime. The mobile phone of Sabbu Khan alleged to be recovered by IO Jitender Tiwari who stated had not deposit the same in malkhana, however, the call were recorded by Inspector Attar Singh in the office. The monitoring of mobiles on surveillance is illegal and unwarranted and without permission of competent authority. PW28 Attar Singh who is monitoring the conversation nowhere stated that he is having permission for monitoring mobile on their computer. PW16 stated that order dated 20.06.2012 and 04.06.2012 do not pertain to his department, and the said order placed on record has already expired more than 7 years ago before recording the alleged recording of accused persons on the computer of police. There is no use of taking possession of mobile phone of accused when they were monitored. The alleged recovery from possession of accused Mohd. Tabrez was by SI Jitender Tiwari however it is sealed with the seal of BK. BK was neither the member of raiding party nor SI with initial BK was present at the spot. The mobile phone recovered from the accused Tabrez is 8750576557 however the used mobile is 9891815612 by accused Mohd. Tabrez therefore, it creates doubt whether the said phone in which accused Mohd. Tabrez communicated was of him or not. There is non compliance of provisions u/s 50 as the search was not conducted in presence of gazetted officer or magistrate. There is also non compliance of section 57 as IO and Inspector Attar Singh hide Case No. SC/8721/16 State Vs. Tauhid Khan & Ors. Dated: 27.11.2020 Page No. 30 of 56 material facts u/s 57 NDPS Act. The hard disk was not sent to FSL for tallying the voice sample. The voice recorded in CD by IO without joining independent/technical witness but he himself converted the voice into CD from their computer. This procedure is in violation of guidelines under IT Act. Furthermore, the interception of mobile numbers without prior permission.
54. The entry in register no.19 mentioned the fard makbuzgi of 500 gm but not the pullandas E, E1 and E2. There is no signature of IO in the malkhana while depositing. PW29 stated that mobile of Mohd. Tabrez taken into possession for the purpose of investigation on 28.07.2012 but on the other hand on 28.07.2012, he deposited the same in malkhana. As per the FSL report, the percentage of the quantity of contraband found to be small quantity and no offence u/s 21(c) is made out. No public person was joined at any point of time. PW4 in crossexamination of Tabrez stated that personal search of accused Ashhab was in his presence however recovery of mobile phone from accused Ashhab Khan was not made in his presence. The personal search of accused Tauhid was conducted in his presence and the mobile phone was recovered and kept by Jitender Tiwari as it was on surveillance. There is nothing explained by IO in his testimony why he used the seal of BK. Ld. Counsel submits that the prosecution case is full of material contradictions and prosecution has failed to prove the factum of arrest and recovery in the manner projected by prosecution hence accused is entitled to be acquitted by granting benefit of doubt.
55. Ld. Counsel for accused Ashhab Khan @ Sabbu Khan stated that entire prosecution case is full of infirmities and contradictions which categorically suggests that accused persons are falsely implicated. PW4 deposed that he made efforts to trace accused Ashhab Khan and Tabrez but none could be traced and returned from spot to PS Special Cell at around 09.15 PM however the name of Tabrez was not revealed by that time. The name of Tabrez was revealed for the first time when raiding team headed by SI Jitender Tiwari was present at Bareilly and Inspector Attar Singh intercepted the call of mobile of accused Ashhab and one Chand at around 08.30 PM on 27.07.2012 when his name is Case No. SC/8721/16 State Vs. Tauhid Khan & Ors. Dated: 27.11.2020 Page No. 31 of 56 surfaced. Inspector Attar Singh informed on the mobile of Ct. Sandeep at about 11.30 AM on 26.07.2012 about the location of accused Sabbu Khan in Jama Masjid area however no public witness was joined at the time of apprehension and nothing was recovered from Sabbu Khan. It is submitted that the information about the present case as per the testimony of PW4 is even prior to 23.07.2012 however there is nothing written down regarding the said aspect thus there is total non compliance of section 41 and 42 NDPS Act. The apprehension of accused Ashhab Khan is doubtful as there is no evidence of location of accused Ashhab at parade ground is part of record and parade ground is a huge area and pointing out in a crowded area is not possible. The accused is shown to be apprehended near Wagon R car however no description of Wagon R car is mentioned. The reaching of both the teams from long distances from Rohini and Khoda Colony is not possible as per the time disclosed by the witnesses. Even no independent witnesses were joined from such crowded places. There was no conversation of accused Ashhab Khan with anybody from midnight of 23.07.2012 till 11.30 AM on 26.07.2012 therefore the location was important however why the location was not intimated to police official prior to 26.07.2012.
56. Ld. Counsel submits that PW4 stated that on 25.07.2012 the disclosure of accused Ashhab was written in his presence therefore suggesting that he was in custody even prior to 26.07.2012. It is the case of prosecution that PW8 Attar Singh disclosed about the location of Ashhab Khan on the mobile of Ct. Sandeep however PW4 Ct. Sandeep disclosed that Attar Singh did not disclose any information to him on his mobile. This itself suggests that accused Ashhab Khan was not apprehended from parade ground however taken into custody much prior to 26.07.2012 from his village which is also proved by DW1. The recovery is made from H.No. I61, Azad Vihar, Khoda Colony on 30.07.2012 after taking keys from Rajiv Vihar but PW21 totally silent whether the property was open or not. Three keys from the bed is doubtful. Moreover the said property was earlier raided on 26.07.2012 and those keys could be recovered on the said date also.
Case No. SC/8721/16 State Vs. Tauhid Khan & Ors. Dated: 27.11.2020 Page No. 32 of 56 The property at Azad Vihar was owned by PW11 and PW11 Saleem stated that accused Ashhab never resided in said property and the said witness was not even crossexamined by the prosecution thus prosecution not able to prove recovery from Azad Vihar. H.No. 149 Shankar Vihar was alleged to be in occupation of Tauhid Khan as rented by Sabbu Khan and the said story is also falsely fabricated by police. PW23 Babu Lal, owner of said house stated that this property belonged to him. PW23 however stated that he did not know Sabbu Khan and also do not know about the present case. Police officials also unable to prove that Wagon R car belonged to accused and the said car was also not found to be searched under any search warrant or authorization because it was effected after sunset. Ld. Counsel submits that no independent witness joined at any time of recovery which is fatal to prosecution case. Non citing of informer as a witness who was present is also fatal to prosecution case. The prosecution has also not complied the statutory provisions u/s 41 and 42. There is no document which authorized PW4 for the raid. PW2 HC Suresh stated that he himself present with PW4, PW28 and PW29 on 23.07.2012 then he cannot be present on the same places on 24.07.2012. PW2 deposed that PW4 prepared notice u/s 50 and served the same to accused Ashhab Khan however as per PW29 after apprehension of accused Ashhab PW4 was asked to leave the place immediately and thereafter PW29 prepared the notice and this itself suggests that PW2 was never present at the spot. PW2 stated that the raid was conducted at around 06.30 PM at Rajiv Vihar where accused led police team to H.No. RC 209B at first floor however nothing was recovered, and the said raid was conducted after 06.30 PM and there is no material on record to indicate that IO was having any search authorization of that place. Ld. Counsel submits that the same is the situation with the search of Wagon R car which was searched after sunset and before sunrise and there is no compliance of section 42 NDPS Act.
57. Ld. Counsel submits that PW4 stated that efforts were made to arrest accused Ashhab Khan and Tabrez after seizure of contraband on 24.07.2012 however accused Tabrez is not even in picture as per prosecution case prior to Case No. SC/8721/16 State Vs. Tauhid Khan & Ors. Dated: 27.11.2020 Page No. 33 of 56 27.07.2012 and even came to picture only after 08.30 PM on 27.07.2012. There is nothing on record to suggest that accused Sabbu Khan was searched or tried to be traced either on 24.07.2012 or 26.07.2012. This PW4 also could not tell anything about the preparation of section 50 notice and its service on accused Sabbu Khan. PW4 stated that on 24.07.2012, SI Tiwari recorded disclosure statement of accused Ashhab however this is not possible because accused was arrested on 26.07.2012 and thus the defence of accused is credible that accused was apprehended on 23.07.2012. PW8 stated that he had not received any information on his mobile qua the presence of accused at parade ground whereas PW4 deposed that he received the information through PW8. PW14 HC Hawa Singh stated that the key of Shankar vihar was with PW29 but he had no knowledge as to where from the said keys were arranged. PW16 LDC Dinesh Kumar stated that number 12/14/2/97T dated 20.04.2012 does not belong to department of NCB thus prosecution miserably failed to prove whether the said numbers were on surveillance or not. Another order was destroyed by Ministry of Communication therefore there is no order for surveillance on record. PW22 V. Laxmi Narsimhan, FSL Expert stated that no system is perfect and thus the FSL report cannot be held to be conclusive. PW24 HC Sanjeev Kumar, MHC(M) had not deposed qua the handing over of any key to PW29 of the house at Rajiv Vihar on 30.07.2011. Similarly PW29 is totally silent qua collecting of keys of Rajiv Vihar from MHCM. PW27 ACP Subhash Tondon could not even disclose properly the time of receiving the information and this witness also cautioned by the court during his testimony as he was again and again looking at his palm to depose as something was written on his palm. This witness stated that he talked to Inspector Attar Singh at about 09.30 AM on 24.07.2012 and not prior to that therefore, it shows that his deposition qua his conversation with PW4 and PW28 on 23.07.2012 is concocted and fabricated. PW28 Attar Singh stated that PW4 recorded DD No.35 and he handed over these documents to SO to ACP however PW4 do not speak about the same. He did not disclose whether he had sent the message of presence of accused Ashhab in parade ground either to Case No. SC/8721/16 State Vs. Tauhid Khan & Ors. Dated: 27.11.2020 Page No. 34 of 56 PW4 or PW29. On the other hand deposed that PW29 informed him about the arrest of Ashhab at 12.30 PM in the area of Jama Masjid on 26.07.2012. This witness is also silent with respect to collection of key from MHCM. PW29 SI Jitender Tiwari, IO not conducted any investigation about the owners of mobile phones alleged to be recovered from accused persons. Accused Tauhid Khan told about the parade ground but did not specify any place of parade ground with respect to accused Ashhab on 26.07.2012. Prosecution could not tell when and where accused Tauhid disclosed the said factum of arrival of accused Ashhab at parade ground on 26.07.2012. SI Praveen told that he raided the house of Ashhab Khan on 26.07.2012 however in crossexamination stated that the team had no exact address of Sabbu Khan prior to his pointing out on 26.07.2012. No mobile phone is recovered from Ashhab Khan and recovery is planted over him. The prosecution unable to comply the rules required for interception, recording of voice sample. The defence witness DW1 stated that accused Ashhab was lifted from his house at his village and there is nothing in his crossexamination to discredit his testimony. Ld. Counsel submits that prosecution miserably failed to prove its case beyond reasonable ground and hence accused Ashhab is entitled to be acquitted.
58. Ld. Defence counsels besides oral arguments have also filed written submissions.
59. Ld. Addl. PP for the State on the other hand submitted that accused Tauhid Khan was apprehended on the basis of secret information pursuant to which the contraband was recovered from the rexene bag carried by him on his shoulder. Consequently the recovery of heroin was also at his instance from Shankar Vihar house. The testimony of police officials regarding his apprehension and recovery are credible and not found impeached in crossexamination. Thereafter Ashhab Khan @ Sabbu Khan was apprehended on the basis of interception by PW28 Inspector Attar Singh which is duly corroborated through the testimony of PW4 and PW29 alongwith other raiding party members. There are consequent recoveries from the houses of accused Ashhab Khan on 26.07.2012 Case No. SC/8721/16 State Vs. Tauhid Khan & Ors. Dated: 27.11.2020 Page No. 35 of 56 and 30.07.2012 as well as from Wagon R car. The testimonies of police officials on these recoveries are credible and reliable. Accused Tabrez was also apprehended on the basis of interception and there is consequent recovery of 500 gm of heroin from him. The intercepted voice calls of accused found matched with the sample voice by the FSL expert. As per FSL report, heroin was detected from the samples sent to FSL of recovered contraband. The houses used by accused Ashhab Khan are duly proved to be in possession of accused Ashhab Khan. Accused Tauhid is also found to be working with him.
60. Ld. Addl. PP submits that the main plea of counsel for accused is that no independent witnesses were joined. However it is admitted positions of present day that no independent witness is ready to join in such cases. The police officials tried to join the investigating to independent witnesses but none agreed therefore no benefit could be given to accused over non joining of independent witnesses. Accused themselves refused to search before the gazetted officer or magistrate therefore there is no requirement of calling gazetted officer or magistrate. There is no infirmity in compliance of procedure mandated u/s 50 NDPS Act. The raid was conducted after due permission from senior officers. There is total compliance of section 41 and 42 NDPS Act. There is also compliance of u/s 57 NDPS Act. There is no infirmity in the sealing and seizure of case property. The testimony of DW1 is not at all credible. Ld. Addl. PP submits that there is a presumption u/s 35 and 54 in favour of prosecution once the incriminating recoveries are proved however accused persons unable to rebut the said presumption. There is even nothing that the accused have ever complained against police officials about their illegal arrest or plantation of recoveries on them. Ld. Addl. PP submits that prosecution is able to prove its case beyond reasonable doubt hence, accused are liable to be convicted for the offences charged.
61. Arguments heard. Record perused.
62. The brief sequence of facts is that one secret information that accused Tauhid will come at the T Point Murga Mandi, Ghazipur on 23.07.2012 for supplying of Case No. SC/8721/16 State Vs. Tauhid Khan & Ors. Dated: 27.11.2020 Page No. 36 of 56 heroin for going towards Anand Vihar at around 10.15 PM received by PW4 SI Praveen. After taking the requisite permission, PW4 SI Praveen alongwith raiding party and secret informer reached the spot however accused Tauhid did not turn up. Thereafter, again received secret information around 09.30 AM on 24.07.2012 that accused Tauhid will come at same place for supplying the contraband between 1201.00 PM, then raiding party reached the spot and on the pointation of secret informer, accused was apprehended and 1 kg of heroin was recovered from the bag carried by him. Thereafter accused was taken to the house at Shankar Vihar which was of coaccused Ashhab and accused Tauhid Khan being his cousin working with accused Ashhab and on that day also, going to supply the said contraband to somebody on the directions of coaccused Ashhab and 1 kg of heroin was recovered from the house at Shankar Vihar at the instance of accused Tauhid. Thereafter, accused Ashhab was searched but was not found, however on 26.07.2012 at around 11.30 AM PW28 Inspector Attar Singh intercepted the location of accused Ashhab Khan @ Sabbu Khan and found his location of parade ground, Jama Masjid. Thereafter, PW4 SI Praveen alongwith team and accused Tauhid was informed who was with the accused in Khoda Colony area for search of accused Ashhab @ Sabbu Khan and PW29 IO SI Jitender Tiwari was also informed who was at FSL, Rohini. Both the teams reached parade ground, Jama Masjid and at the pointing out of accused Tauhid Khan, Ashhab Khan was apprehended from the parade ground however nothing was recovered from his possession thereafter, the accused Ashhab Khan during PC remand was taken to his house at Rajiv Vihar, Khoda Colony from where 5 liters of Acetic anhydride and 500 gm of powder used in processing of heroin recovered however no contraband was recovered. The accused Ashhab Khan @ Sabbu Khan however on interrogation also disclosed that one Wagon R car parked in the gali used by him is having 1 kg of heroin, which, he had put inside the car because he came to know about the arrest of accused Tauhid Khan, thereafter, 1kg of heroin was recovered from the said Wagon R car.
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63. On 27.07.2012, accused Tauhid Khan and Ashhab Khan were taken to their village near Bareilly however nothing was recovered from there but around 08.30 PM on 27.07.2012, IO SI Jitender Tiwari received call from PW28 Inspector Attar Singh that one accused would come to return the defective contraband to the accused Ashhab Khan near Khoda Colony thereafter, at around 05.00 AM, PW29 IO SI Jitender Tiwari alongwith staff and accused reached Khoda Colony, then another call was received from Attar Singh that accused will come near Pushta. Then at the instance of accused Ashhab Khan, Tabrez was apprehended near Pushta and 500 gm of heroin was recovered from him. Accused Tabrez was also taken to his house at hospitalwali Gali, Jama Masjid but nothing was recovered from the said house. On 30.07.2012 accused Ashhab Khan during PC disclosed at around 04.00 AM that he is also having one house at Azad Vihar the keys of which are lying in the secret cavity of bed at his Rajiv Vihar house thereafter, PW29 took the keys from the malkhana of Rajiv Vihar house and recovered the keys of Azad Vihar from that house from the secret cavity of the bed and reached Azad Vihar house where three transparent polythene bag containing 1 kg of heroin and also 5 kg of phenobarbital were recovered. The accused Ashhab Khan is found to be kingpin and used to bring crude heroin from Bareilly to Khoda Colony where he used to process the same with Tauhid Khan. The mobile phone conversation during investigation of suspected accused alongwith present accused were already on interception however except these three accused no other suspect could be apprehended. The telephonic conversations of accused persons were intercepted and taken into CDs by IO PW29 SI Jitender Tiwari and thereafter sent the same with the sample voice of accused. As per the FSL report, the voice stands matched. The FSL report of the contraband was also received opined to have been containing diacetylmorphine (heroin).
64. It is pertinent to notice that all the accused were apprehended from a public place either on secret information or through phone interceptions therefore, the detailed appreciation of the manner of apprehension of accused persons is very Case No. SC/8721/16 State Vs. Tauhid Khan & Ors. Dated: 27.11.2020 Page No. 38 of 56 material.
Circumstances of receiving of secret information and apprehension of accused Tauhid Khan
65. PW4 SI Praveen stated that on 23.07.2012 at around 10.15 PM he received a secret information at office that accused Tauhid who resides in Khoda Colony will come today at around 12 midnight from Khoda Colony to Anand Vihar via Ghazipur T Point thereafter he recorded the said information on plain paper and further recorded DD NO.35 and informed the said information to PW28 Inspector Attar Singh who informed the same to PW27 ACP Subhash Tondon. Thereafter PW27 ACP Subhash Tondon instructed to raid immediately. This witness in crossexamination stated that he had taken the said information to SO to ACP however not made any entry in the office of ACP and also not aware whether ACP was present in the office when he handed over the said information to SO and Inspector Attar Singh spoken to ACP on his mobile. However this version of PW4 is completely contradictory to the version of PW27 ACP Subhash Tondon who stated that on the said day PW4 SI Praveen Kumar, PW28 Inspector Attar Singh alongwith his SO met him in his office and submitted the original information. There is a material inconsistency regarding the meeting of officials with ACP. This infact creates doubt over the recording of information and seeking permission to form raiding party from ACP in the manner projected. However, on the said night, the accused not turned up.
66. PW4 thereafter stated that on 24.07.2012 at around 09.30 PM, he again received information on call and thereafter followed the same procedure and Inspector Attar Singh informed ACP Subhash Tondon about the same and ACP Subhash Tondon instructed on telephone to do the raid immediately. PW27 ACP Subhash Tondon however in his examination in chief stated that on 24.07.2012 at around 06.20 AM Inspector Attar Singh informed him about the information however again later corrected the timing as 09.30 AM. This witness during examination in chief on 08.09.2012 asked sometime as he is feeling backache and after lunch he was called again and while recording of the Case No. SC/8721/16 State Vs. Tauhid Khan & Ors. Dated: 27.11.2020 Page No. 39 of 56 examination in chief, he was found searching of writing something on his palm therefore directed to remain careful by court. In crossexamination it is pertinent to notice that he stated that he had talked to Inspector Attar Singh first time regarding present case at 09.30 AM on 24.07.2012, and prior to that he had not talked to any officer which also creates doubt over the information received in the night of 23.07.2012. This witness in crossexamination also stated that he was not informed about the outcome of raid on 23.07.2012 whereas PW4 stated that he has informed the outcome of raid on 23.07.2012 to ACP. PW27 in crossexamination stated that he used to get the information sometime on telephone and sometime physically however from the endorsement it is not clear when he received the said information telephonically and when physically. He also stated in crossexamination he do not remember when for the first time he came to know about the present case. Therefore, the manner of receiving of secret information on the night of 23.07.2012 and thereafter in the morning of 24.07.2012 and consequent proceedings on the basis of these informations appear to be somewhat suspect.
67. Now it is pertinent to appreciate that on 24.07.2012 PW4 SI Praveen Kumar alongwith his team including ASI B.B. Gurang, ASI Bhushan, HC Suresh, HC Sanjeev in government vehicle reached T point Ghazipur at around 11.30 AM where he met the informer and deployed HC Sanjeev half kilometer towards UP border instructed to convey the signal. Thereafter at around 12.30 PM HC Sanjeev informed him about the motorcycle which was then intercepted by HC Suresh and accused was stopped with motorcycle having bag on his shoulder thereafter tried to run however apprehended after 20 steps. This witness categorically stated that he was informed by HC Sanjeev about the arrival of the motorcycle. However HC Sanjeev who is material witness is not examined. The position of HC Sanjeev in the site plan of the spot prepared is also not mentioned. There is inconsistency in the testimony of raiding team members over the factum of non joining of independent witnesses and the places where independent witnesses were asked to join. No independent witness admittedly Case No. SC/8721/16 State Vs. Tauhid Khan & Ors. Dated: 27.11.2020 Page No. 40 of 56 joined at the time of apprehension and recovery from accused.
68. The accused Tauhid Khan was apprehended with contraband and motorcycle. The motorcycle of the accused recovered during investigation is found to be of one Shabbo however in the evidence no such document was exhibited nor any Shabbo was examined at any point of time. The motorcycle is stated to be deposited in malkhana however malkhana register do not show that said motorcycle was deposited alongwith the key. It only mentions that motorcycle alongwith helmet is deposited. There are two mobile numbers recovered from accused Tauhid Khan however prosecution not try to substantiate that these mobile phones showing the location of Ghazipur T Point or nearby at the time of apprehension of accused Tauhid Khan. Admittedly neither before apprehension of accused Tauhid nor after his apprehension, local police of Ghazipur or Khoda Colony was informed. The log books of government vehicles also not exhibited. The driver who has driven the said government vehicles is also not examined. All these infirmities collectively create doubt over the manner of apprehension of accused Tauhid from near the T point Ghazipur. Circumstance of apprehension of accused Ashhab Khan @ Sabbu Khan
69. It has come in the testimony of PW4 and recording of intercepted calls that present accused alongwith other accused were talking to each other even well prior to 23.07.2012, however no particular intercepted call prior to 23.07.2012 is emphasized during the evidence of the witnesses regarding the deliveries of contraband though cryptically it could be inferred that some talks were going on. The prosecution case is primarily dependent upon the secret informations and subsequent recoveries from accused persons, and not on the contents of the intercepted calls. Neither the IO nor any other official witness emphasized about the contents of intercepted calls. IO only exhibited the intercepted call transcription vide Ex. PW29/R.
70. Admittedly as per the prosecution case, the accused Tauhid was apprehended at around 12.40 PM on 24.07.2012 and he was found to be delivering the contraband at Anand Vihar on the instructions of accused Ashhab Khan @ Case No. SC/8721/16 State Vs. Tauhid Khan & Ors. Dated: 27.11.2020 Page No. 41 of 56 Sabbu Khan however prosecution could not decifer any information from the mobile record or from the accused Tauhid Khan to whom he was going to deliver the said contraband at Anand Vihar. Prosecution also not tried to take the accused after apprehension to Anand Vihar so that the receiver of contraband could be apprehended.
71. It can be very well inferred that once the accused Tauhid was apprehended, it must have come into the knowledge of accused Ashhab Khan @ Sabbu Khan and this fact is also corroborated through prosecution case because PW29 categorically stated that accused Ashhab Khan disclosed that he has concealed the heroin in Wagon R car because he came to know about the apprehension of accused Ashhab Khan therefore, it is also quite unlikely that accused Ashhab Khan will think of meeting the accused Tauhid Khan at parade ground, Jama Masjid.
72. On 26.07.2012 at around 11.30 AM, accused Tauhid stated to be with PW4 SI Praveen and his team in Khoda Colony when the intimation received that accused Ashhab Khan is located in Jama Masjid area however PW29 IO Inspector Jitender Tiwari in crossexamination stated that accused Tauhid only told him about the parade ground with regard to his arrival on 26.07.2012 not any specific place. It appears somewhat strange that how the IO is told about accused Tauhid Khan that accused Ashhab Khan will come to parade ground at 11.30 AM. It is unlikely that accused Ashhab Khan will make a planning to meet Tauhid Khan at parade ground on 26.07.2012 when he already came to know that accused Tauhid had already been apprehended by police. There is nothing in prosecution case for what purpose accused Ashhab Khan came to the parade ground.
73. The intimation of the accused in Jama Masjid area is of 11.30 AM and the raiding party of Jitender Tiwari and PW4 SI Praveen reached around 12.30 PM. It is unlikely that the accused will roam around for such a period in the said area without any work and will wait in open parade ground at some parking without any purpose. The prosecution not try to substantiate why he came to Case No. SC/8721/16 State Vs. Tauhid Khan & Ors. Dated: 27.11.2020 Page No. 42 of 56 parade ground that too on foot. The entire prosecution story is unnatural over the presence of accused at parade ground.
74. It is also pertinent to notice that the mobile phone of accused Ashhab Khan was on interception and PW28 Inspector Attar Singh was monitoring the location of mobile phone of accused Ashhab Khan. As per the version of PW4 and PW29, this witness informed them about his location at parade ground, Jama Masjid and thereafter PW4 alongwith his team reached parade ground where apprehended accused Ashhab Khan on the pointation of accused Tauhid. There is no call location pointed out of accused Tauhid and Ashhab Khan of parade ground, Jama Masjid. PW28 Inspector Attar Singh informed about the location to PW4 and PW29, however PW28 in his testimony not stated this material fact that he was observing the location and movement of the accused Ashhab and told this fact to PW4 and PW29.
75. The parade ground as stated by PW4 and PW29 is found to be crowded place and no independent witness was joined at the time of apprehension. The testimony of official witnesses over non joining of independent witnesses is somewhat inconsistent. Finally there is no occasion for accused Ashhab Khan to move to parade ground to meet accused Tauhid when he already knew that he was arrested by police. The manner of apprehension of accused Ashhab Khan @ Sabbu Khan from Parade Ground, Jama Masjid is not at all credible. Circumstance of apprehension of accused Tabrez.
76. As per the mobile conversations recorded and the transcriptions, number of suspects including Tabrez was on watch prior to 23.07.2012. However as per prosecution case, the accused Tabrez came into picture on the night of 27.07.2012 when PW28 Inspector Attar Singh during monitoring of interception recorded information (Ex.PW21/I, Mark A, Ex.PW28/C) in which he recorded that a call was intercepted at around 20:21 hours on 27.07.2012 upon mobile no. 9891815612 (used by Tabrez) with mobile no. 7209672766 used by Chand, and in the said call Chand had asked him to meet Sabbu tomorrow morning before 07.00 AM to return the 500 gm heroin of inferior quality and Chand had Case No. SC/8721/16 State Vs. Tauhid Khan & Ors. Dated: 27.11.2020 Page No. 43 of 56 asked him to meet at the place where they used to meet prior to this call. It is also recorded in this information that prior to this call Chand had talked with Sabbu Khan in another call at around 20:18 hours on 27.07.2012 between mobile number 9661789955 and 9917373910 about sending of Tabrez to return the said poor quality heroin.
77. The material part is to be appreciated that on 27.07.2012 the accused Sabbu Khan @ Ashhab Khan was in custody of PW29 and PW29 IO SI Jitender Tiwari with his team was at Bareilly alongwith accused Ashhab Khan at around 08.30 PM when the said call was intercepted. This information suggests that accused Ashhab Khan must have attended the said call while talking to Chand at around 20.18 PM on 27.07.2012 however PW29 IO SI Jitender Tiwari nowhere in his testimony stated that when the accused Sabbu Khan was in his custody on receiving the said call, he asked Sabbu Khan to talk to Chand or that Sabbu Khan talked with Chand. There is nothing in his testimony that accused had a talk with anybody leave aside Chand from his mobile phone during his custody. This created material doubt over the information (Ex.PW21/I Mark A, Ex.PW28/C) recorded by PW28 Inspector Attar Singh. This also then consequently create doubt over the subsequent recording of DD entries in this regard. PW28 Inspector Attar Singh also not deposed that at the time of interception, accused Ashhab Khan @ Sabbu Khan was made to talk by IO/SI Jitender Tiwari.
78. Another important aspect of this information Ex.PW21/I is that accused Chand also talked with accused Tabrez that he had asked Sabbu to meet tomorrow at the same place and he can go to return the said defective heroin to him. The conversation records suggest that suspected persons know each other prior to their apprehensions resides in the same vicinity. The accused Tauhid had already been arrested on 24.07.2012 and thereafter taken to the said area for recovery and also for the search for other accused persons on 25/26.07.2012, and thereafter accused Ashhab Khan was also arrested on 26.07.2012 and also taken to Khoda Colony and his village at Bareilly for further recoveries. In these Case No. SC/8721/16 State Vs. Tauhid Khan & Ors. Dated: 27.11.2020 Page No. 44 of 56 circumstances, it is unnatural that the other associates i.e. Chand, Tabrez, etc do not know about their apprehension and will talk to them on mobile phones for returning defective heroin.
79. The information of intercepted calls at around 20.21 hours from the mobile conversation between accused Tabrez and Chand is that he will return the heroin to Sabbu Khan at the same place where he used to meet before at 07.00 AM on 28.07.2012, however there is no mention of the place either in any disclosure statement of accused Sabbu or in the conversation/information. Thereafter in the morning at around 06.13 AM, another call was intercepted upon the mobile phone no. 9661789955 used by Chand in which somebody is telling him that the carrier has departed from his house and on the way to meet Sabbu. In this information (Ex.PW21/K) also, there is no mention of the place where accused Tabrez will meet Ashhab Khan. PW28 Inspector Attar Singh stated that he has apprised the said call to SI Jitender Tiwari.
80. At this stage, it is pertinent to notice that PW30 SI Rakesh Kumar also reached the spot of apprehension of accused Tabrez. PW30 SI Rakesh stated that on the directions of senior officer he reached the spot with team i.e. at around 06.00 PM at NH24, Pushta NO.2 where he met the team led by SI Jitender Tiwari. In the meanwhile, Inspector Attar Singh informed SI Jitender Tiwari that one Tabrez was about to reach as Tabrez had a talk with one Chand. Now it is pertinent to relook at the information Ex.PW21/K in which there is no mention that Chand had a talk with Tabrez. There is only mobile number of Chand mentioned and not of Tabrez. It is also not mentioned in said information that Tabrez and Chand talked to each other for reaching the said place.
81. This PW30 also deposed that around 06.15 PM a telephone call from Chand came on the mobile phone of Sabbu Khan that Tabrez was about to reach there. This is neither the case of prosecution nor IO PW29 SI Jitender Tiwari stated that at around 06.15 AM a call of Chand also received on mobile of Sabbu Khan by Chand about the fact that Tabrez is going to reach there. PW29 IO SI Jitender Tiwari however nowhere stated that any mobile call was received on Case No. SC/8721/16 State Vs. Tauhid Khan & Ors. Dated: 27.11.2020 Page No. 45 of 56 the mobile of Sabbu Khan at 06.15 AM when they were near the Pushta.
82. PW29 deposed that on 28.07.2012, he alongwith team members and accused reached Khoda Colony at around 05.00 PM from Bareilly and thereafter checked the area of Khoda Colony and stationed at pushta no.2, Khoda Colony where he met with SI Rakesh at around 06.00 AM and his team, and there he also informed about the intercepted conversation that one Tabrez would come at pushta no.2 at 07.00 AM. This witness stated that PW28 Inspector Attar Singh informed him about the location i.e. pushta no.2, NH24 however the information Ex.PW21/K or PW21/I do not show any such location. It only mentions that location as per previous meetings. There is nothing that accused Sabbu had told to the IO that they used to meet at Pushta no.2 therefore, meeting of team at pushta no.2 without any previous information recorded or the information disclosed by accused Sabbu Khan appears suspect and creates doubt the entire circumstance of recording of informations and apprehension of accused Tabrez from the said pushta by prosecution.
83. On overall appreciation, the prosecution case on the manner of apprehension of accused Tabrez also do not appear credible and cannot be relied upon therefore, the subsequent recoveries also become doubtful.
Circumstance of search and recovery of contraband from Shankar Vihar house at the instance of accused Tauhid Khan.
84. As per prosecution case, accused was taken to Shankar Vihar house by PW29 IO alongwith his team and from the recovered keys of said house from the personal search of accused Tauhid, it was opened and contraband was recovered. The said house is found to be in the name of one Babu Lal and the said Babu Lal purchased in his name from the amount of accused Ashhab Khan and accused Ashhab Khan and Tauhid Khan used this house for illegal activities. However none of the neighbours or public witnesses were joined at the time of recovery of contraband at the instance of accused Tauhid Khan from the said house. PW29 stated that after the proceedings of recovery, he straightaway went with the team to PS Special Cell whereas PW4 stated that after search PW29 Case No. SC/8721/16 State Vs. Tauhid Khan & Ors. Dated: 27.11.2020 Page No. 46 of 56 alongwith accused and team came back to the spot i.e. T Point Ghazipur. These all circumstances alongwith the manner of apprehension create doubt over the recovery from the said house. PW4 in his crossexamination has given a very sketchy answers to proceedings conducted at the spot after apprehension of accused. He stated that he had left the spot at around 06.00 PM alongwith HC Suresh and all other raiding team party members went to the house of accused Tauhid Khan. He also stated that from the telephonic conversation prior to 23.07.2012 they have already known about the residential locations of accused persons. Accused Jitender Tiwari left the spot at 06.00 PM and returned back at around 07.30 PM therefore suggesting that he remained there even after 06.00 PM which is in contradiction to the version of IO that they had reached from Khoda Colony straight to Special Cell office. This witness also stated that on 26.07.2012 the accused Tauhid Khan was taken to 34 houses for search as he told that Ashhab can come to any of the four houses however could not tell any particulars of those houses. The houses in the present case searched either at the instance of Tauhid or Ashhab are at Khoda Colony therefore it can be inferred that those houses were already raided even prior to the apprehension of Ashhab Khan. In overall circumstances, the recovery of 1 kg of heroin from house at Shankar Vihar in the manner projected appears suspect. Circumstance of recovery of contraband or other chemicals at the instance of accused Ashhab Khan @ Sabbu Khan from Rajiv Vihar and Azad Vihar house of Khoda Colony
85. As already discussed, the circumstance of apprehension of accused in the manner relied upon by the prosecution appears not credible however as per prosecution case the accused Ashhab Khan was taken on PC remand for 26.07.2012 to 30.07.2012, and in the evening of 26.07.2012the accused house at Rajiv Vihar, Khoda Colony was searched from where chemical alleged to be used to preparing heroin was recovered. The said house was found in the name of accused Ashhab Khan however no independent witness was joined. Testimony of raiding team members over non joining of independent witnesses Case No. SC/8721/16 State Vs. Tauhid Khan & Ors. Dated: 27.11.2020 Page No. 47 of 56 is inconsistent. The said house is located in a crowded place. No intimation was given about the search before and after search to local police. The Wagon R is stated to be also searched on the basis of disclosure statement recorded at the house itself from which 1 kg of heroin was recovered. As per site plan Ex.PW29/F the car was found parked at the gate of the house however the testimony of raiding party members is inconsistent over the location of said Wagon R car. No photographs of the house or the car were taken to corroborate the factum of the search lying of the articles or Wagon R car in front of the house particularly when as per prosecution case, no independent witness was ready to join. The recovery of contraband in these facts and circumstances do not appear to be credible and cannot be relied upon.
86. During custody, as per prosecution case, in the morning at around 04.00 AM on 30.07.2012, the accused Ashhab Khan @ Sabbu Khan again made disclosure statement that the contraband is lying at his another house at Azad Vihar, Khoda Colony. IO PW29 stated that thereafter he obtained the keys of the house of accused Ashhab Khan of Rajiv Vihar from the malkhana and reached the house at Rajiv Vihar and from the secret cavity inside the bed, recovered the keys of Azad Vihar house and thereafter went to Azad Vihar house and from there 5 kg of phenobarbital and 3 kg of heroin was recovered from secret cavity, furthermore some utensils used for preparing heroin were also recovered.
87. This witness stated that after disclosure statement of accused Ashhab Khan recorded on 30.07.2012, he took the key from malkhana of Rajiv Vihar house and thereafter from the secret cavity in the bed at Rajiv Vihar keys of Azad Vihar house were taken. PW24 MHCM nowhere stated about any taking of keys from malkhana by PW29 SI Jitender Tiwari. The Ex.PW24/G of deposit of three keys of house at Rajiv Vihar do not show that these keys were again taken out from malkhana and handed over to the IO. This itself falsifies the stand of IO that he opened the house at Rajiv Vihar after taking the keys from malkhana and thereafter recovered the keys of Azad Vihar. At that time also, no independent witness was joined. At Azad Vihar house also no independent Case No. SC/8721/16 State Vs. Tauhid Khan & Ors. Dated: 27.11.2020 Page No. 48 of 56 witness was joined. The said house is also stated to be rented house from one Salim however that Salim was not also called. No photographs of the house were taken particularly when as per prosecution version no independent witness was ready to join in present facts and circumstances. Therefore, in overall facts and circumstances recovery from Azad Vihar house that too on the last day of PC remand appears suspect. The entire sequence in which the house of accused was alleged to have been searched appears suspect because it has come in the testimony of PW4 that the residential locations of all mobile phones were in their knowledge. The manner of apprehension as already discussed do not appear to be at all credible. Thus the recovery of contraband at the instance of accused Ashhab Khan do not appear to be at all credible.
Recovery of 500 gm of heroin from accused Tabrez.
88. As per prosecution case, when accused Tabrez was apprehended, 500 gm of heroin was recovered from polythene carried by him however as already discussed, the manner of apprehension of accused Tabrez from the spot is not at all credible therefore, the recovery in the same manner at the same time also cannot be believed.
Activated mobiles of all three accused even after their apprehension vis a vis malkhana register
89. As per malkhana register entry, Ex.PW24/D the mobile numbers 9411622923, 9560065943 of Tauhid were deposited in malkhana on 24.07.2012. Two mobiles of accused Ashhab bearing no. 9917819884 and 9917375910 were deposited on 26.07.2012 (Ex.PW24/G) and mobile no. 9891815612 of accused Tabrez was deposited vide entry Ex.PW24/K on 28.07.2012. This itself suggests that all these mobile phones were not kept in open condition on dates alleged and had already been deposited in malkhana on 24.07.2012, 27.07.2012 and 28.07.2012 therefore created doubt over the prosecution story that they were on active mode in the custody of IO till 30.07.2012. If the prosecution case is believed that they were in active mode in the custody of IO then it creates doubt over the malkhana entries thus then it can be inferred that articles deposited in Case No. SC/8721/16 State Vs. Tauhid Khan & Ors. Dated: 27.11.2020 Page No. 49 of 56 the malkhana in the manner stated cannot be relied upon.
Motorcycle
90. Accused Tauhid wad apprehend when coming on motorcycle however during evidence prosecution could not prove to whom the said motorcycle belongs through from the investigation it can be inferred that it was from some Shabbo but that Shabbo is not examined. There is nothing how said motorcycle came into the possession of accused. The key of said motorcycle is also not found to be deposited alongwith the motorcycle and helmet as per malkhana entry Ex.PW24/C. If the key is not deposited then it could be inferred that accused might not be apprehended while driving the said motorcycle. CD of the recordings of intercepted calls
91. Vide seizure memo dated 08.08.2012 (Ex.PW28/F), PW29 IO SI Jitender Tiwari in presence of PW28 Inspector Attar Singh have made the copies of intercepted calls of accused Tauhid Khan, Ashhab Khan and other persons in the CD and same is marked as Q1 and the said envelope sealed with JT. The intercepted call between accused Mohd. Tabrez and other have been copied in the CD and kept in two envelopes Q2 and Q3. As per this seizure memo, these CDs were installed in the computer system at the office of Special Cell, Sector 6 Rohini. PW28 Inspector Attar Singh stated that on 08.08.2012 IO SI Jitender Tiwari selected few intercepted voice calls and copied in the CD from computer with due process of rules and regulations. PW29 IO/SI Jitender Tiwari also deposed that on 08.08.2012, he prepared CD and put in separate CD marked Q1, Q2 and Q3 and put in separate envelopes with the seal of RK. It is pertinent to notice that PW29 deposed that these were sealed with the seal of RK however as per Ex.PW28/F these CDs were sealed with the seal of JT. The prosecution has not explained the said anomaly and it also creates doubt over the manner of copying of CD from the computer system. The said computer system from which the selected voice call CD was prepared is maintained at the office of Special Cell however it cannot be held that the said system was run by IO SI Jitender Tiwari. PW29 IO SI Jitender Tiwari in crossexamination stated that ACP Case No. SC/8721/16 State Vs. Tauhid Khan & Ors. Dated: 27.11.2020 Page No. 50 of 56 concerned was incharge and the computer system is in custody of ACP. The CD is secondary evidence therefore, form u/s 65B is necessary for admissibility of said CD (relied upon Arjun Panditrao Khotkar Vs. Kailash Kushanrao Gorantyal & Ors. 2020 SCC Online SC 571) however there is no such form 65B on record from concerned incharge ACP therefore the said CD is inadmissible, hence the consequent voice sample reports Ex.PW22/A also cannot be relied upon. Even otherwise, there is a dispute over manner of recording of intercepted call on the night of 27.07.2012 and in the morning of 28.07.2012. Thus, the prosecution case is also suspect accused connection through intercepted calls in the present case.
Non joining of independent witnesses
92. It is a settled law that the failure to associate independent witnesses is not fatal to prosecution case as long as it is shown that efforts were made and none was willing. In present case, the IO as well as other members of raiding team stated that they have tried to join the independent witnesses at the time of apprehension or recovery however none agreed but the testimony of the official witnesses in this regard sketchy. Apex Court in Ram Swaroop Vs. State 2013 (14) SCC 235 held that if the evidence of police witnesses are found absolutely unimpeachable then the failure to associate independent witnesses did not affect prosecution case however in present case as already discussed there is ample lacuna in the statement of official witnesses over the manner of apprehension of accused persons and recovery at their instance therefore the non joining of independent witnesses is a circumstance to be read against the prosecution.
Voice matching report
93. PW22 V. Laxmi Narsimhan, Senior Scientific Officer of FSL exhibited the voice sample report Ex.PW22/A vide which the intercepted voice calls found matched with the voice samples of accused taken during investigation however when the manner of recording of interception appears doubtful and the CD prepared which is secondary evidence is not admissible therefore, no benefit could be Case No. SC/8721/16 State Vs. Tauhid Khan & Ors. Dated: 27.11.2020 Page No. 51 of 56 given to prosecution for this voice sample report.
FSL reports over contraband
94. PW26 exhibited the FSL report showing the presence of diacetylmorphine, phenobarbital, etc from the sample sent for examination however when the recovery is found to be not credible therefore, no benefit could be given to prosecution for proving the said report.
No details of subscribers of mobile phones shown to be recovered from accused persons
95. The mobile phones shown to be recovered from accused persons admittedly as per prosecution's case are not in their name. The IO stated that subscribers of those phones are found fake but there is no document exhibited in this regard during evidence. IO also stated in crossexamination that documents on which SIMs were issued were not verified from concerned authority. The circumstance of apprehension of accused in the manner projected by prosecution has already been disbelieved, these deficiencies also make the recovery and connection of accused with these mobiles suspect.
Proceedings u/s 50 NDPS Act
96. PW2 deposed that notice u/s 50 NDPS Act was given by PW4 SI Praveen to accused Ashhab Khan however PW29 stated that after apprehension, PW4 was asked to leave to FSL. This creates doubt over the manner of preparation of notice u/s 50 NDPS Act. However, this infirmity is not material because nothing is recovered from personal search of accused Ashhab Khan.
97. Ld. Counsels for accused persons also submit that there is no compliance u/s 50 as the search was not conducted in presence of gazetted officer or magistrate. The accused persons were explained about their legal rights of search in presence of the magistrate and gazetted officer however accused persons refused therefore, it cannot be held that there is no compliance of section 50 (relied upon Sayaed Md. Ridwan @ Munna to state Crl.A.785/2014 dated 22.02.2019 (DHC), Ram Gopal Vs. State Crl.A. 676/2016 dated 16.10.2018 (DHC) and Innocent Vs. State Crl.A. 139/2017 dated 14.01.2020 (DHC)). Even Case No. SC/8721/16 State Vs. Tauhid Khan & Ors. Dated: 27.11.2020 Page No. 52 of 56 otherwise, the recoveries in the present case are not made from bodily search of accused persons. The recovery from accused Tauhid is from the shoulder bag and from the accused Tabrez from the polythene carried in the hand. Apex court in case titled Than Kumar Vs State of Haryana, Crl. Appeal No. 2172/2011 dated 02.03.2020 after relying upon the judgment of Baljinder Singh (2019 (10) SCC 473) held that when the recovery was effected from the bag then the compliance of section 50 of NDPS Act is not required. This view reiterated by Apex Court in recent decision titled 'Jeet Ram Vs The Narcotics Control Bureau, Chandigarh, Crl Appeal No. 688/2013 dated 15.09.2020. Therefore, there is no requirement of compliance of section 50 in present case as recovery from shoulder bag and polythene bag or from the house however as the recovery is not believed as already discussed, therefore the compliance or non compliance of section 50 NDPS Act is not material.
Compliance of section 41 and 42 NDPS Act
98. Ld. counsel for accused persons submitted that there is total non compliance of section 42 in present case as no search warrants were taken for house search and searches were conducted after sunset. Ld. Counsels submit that in terms of section 42(1) the search warrants are required if the searches are conducted after sunset and before sunrise. Ld. Counsel submits that in this case the house at Shankar Vihar from where 1 kg of heroin was recovered at the instance of accused Tauhid Khan was searched after sunset however the said search was conducted without any search warrant. Even otherwise, there is also no compliance of section 42 regarding reasonable belief why the search warrant could not be obtained. The same is position with regard to search from house at Rajiv Vihar at the instance of Ashhab Khan and search from Maruti car. Ld. Counsel further submits that accused Tauhid Khan was apprehended with motorcycle, and as per secret information the accused was carrying the contraband on motorcycle which is also a conveyance therefore search warrants are required.
Case No. SC/8721/16 State Vs. Tauhid Khan & Ors. Dated: 27.11.2020 Page No. 53 of 56
99. PW4 on receiving the secret information on 24.07.2012 informed the said fact to PW28 Inspector Attar Singh pursuant to which PW27 ACP Subhash Tondon authorized PW4 SI Praveen to conduct the raid therefore, there is a specific authorization from ACP concerned to conduct the raid. Thus there is total compliance of section 41 and 42 NDPS Act. the contraband from the accused Tauhid was recovered from bag not from the motorcycle therefore, no compliance of section 42 is required. However after apprehension of accused Tauhid the FIR is registered and the investigation is taken by PW29 IO SI Jitender Tiwari. Other informations regarding the lying of contraband was disclosed during investigation. Kerala High Court in case titled Andichami @ Andiappan Vs. The Sub Inspector of Police & Ors. CRL.A.No. 2074 of 2010 dated 24.08.2011 held as under:
"13.....From the above finding, it can be seen that on receiving the information, PW12 has duly complied with the requirement of S.42 consequent to which seizure was effected. In view of Sections 41 and 42 of the NDPS Act, in the present case, according to me, it can be seen that the requirement of recording of an information received u/s. 42 is satisfied with. Nowhere in the NDPS Act it is stated that, as and when information received during the course of investigation, the officer concerned should repeat the formalities contemplated u/s.41 or 42 as the case may be. In view of the various provisions contained in the NDPS Act as well as in the Code of criminal procedure, even if a new information is obtained during the course of investigation connected with the seizure of contraband article in pursuance of a former information, the officer concerned need not repeat the formalities that contemplated either by S.41 or by S.42 of NDPS Act...."
As per the mandate of this judgment once the investigation started, there is no requirement of again permission for any search etc., during investigation therefore, the said contention raised by Ld. Counsel for accused is not tenable. Even otherwise, as the manner of apprehension of accused as well as the recoveries are not found credible therefore the issue of compliance and non compliance is not material in present case.
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100. It is settled proposition of appreciation of evidence that minor discrepancies in evidence and procedural lapses in prosecution case are bound to occur and prosecution case cannot be thrown on that account however, if the discrepancies and lapses are such which can create definite doubt over the foundations of prosecution case then the accused is entitled for benefit of same.
101. Apex court in case titled Haneef Khan @ Anu Khan Vs. CBN Crl. Appeal No. 1206/2013 dated 20.08.2019 held in no uncertain terms that though the NDPS Act carries reverse burden of proof but it does not absolve the prosecution from establishing a prima facie case against the accused. Apex court in Noor Aga Vs. State of Punjab 2008 (16) SCC 417 held that section 35 and 54 no doubt raise presumption with regard to culpable mental state on part of accused however, bare perusal of the said provision would clearly show that presumption would operate in trial of accused only in the event of the circumstances contained therein are fully satisfied. An initial burden exist upon the prosecution and only when it stands satisfied then the legal burden would shift. Therefore the prosecution has to prove first the foundational facts before invoking presumption of culpable mental state u/s 35 and 54 NDPS Act.
102. The evidence as discussed above, creates definite doubt over the manner of arrest of accused persons and consequent recoveries therefore, the prosecution failed to prove the foundational facts before raising presumption in their favour u/s 35 and 54 NDPS Act. It is also the cardinal principle of criminal law that severe the punishment the greater has to be taken care to see all the safeguards are followed and the suspicion however high cannot substitute the legal evidence and the prosecution has to prove the guilt of accused beyond reasonable doubt but considering the discrepancies as discussed the prosecution not able to prove its case beyond reasonable doubt (Noor Aga case (supra)).
103. On overall appreciation of evidence, the prosecution not able to prove the foundational facts beyond reasonable doubt therefore presumption u/s 35 and 54 cannot be invoked. The prosecution miserably failed to prove manner of apprehension of accused and consequent recoveries of contraband, hence Case No. SC/8721/16 State Vs. Tauhid Khan & Ors. Dated: 27.11.2020 Page No. 55 of 56 accused Tauhid Khan @ Shahid @ Lambu, Ashhab Khan @ Sabbu Khan and Mohd. Tabrez are acquitted of the charges framed against them by granting benefit of doubt. All the accused are directed to furnish personal bonds in the sum of Rs. 1 lac with one surety in like amount in terms of section 437A Cr.PC.
104. File be consigned to record room after compliance u/s 437A Cr.PC. Case property is confiscated to State and the same may be disposed of after the expiry of the period of the appeal.
Announced in the open court
on this 27th day of November, 2020 (Ajay Kumar Jain)
through Video Conferencing Special Judge NDPS
Patiala House Courts
New Delhi
Case No. SC/8721/16 State Vs. Tauhid Khan & Ors. Dated: 27.11.2020 Page No. 56 of 56