Delhi District Court
State vs . on 2 March, 2023
IN THE COURT OF SHRI ARUL VARMA, ASJ-04 AND
SPECIAL JUDGE (NDPS) SOUTH-EAST: SAKET COURTS: NEW
DELHI
CNR No. DLSE01-002751-2015
SC No. 2405/2016
FIR No. 443/2015
P.S. Lajpat Nagar
State
Vs.
Noor Amir ........ Accused
Date of Institution : 17.07.2015
Date of reserving the Judgment : 24.02.2023
Date of Judgment : 02.03.2023
JUDGMENT
FACTS IN BRIEF / CASE SET UP BY THE PROSECUTION
1. The facts as alleged by the prosecution, are hereby succinctly recapitulated. It was alleged that on 09.05.2015 at 03:15 PM onwards, in front to Max 24/7, Medicos Kasturba Niketan, Lajpat Nagar-II, New Delhi and C-2, KU Hospital within the jurisdiction of PS Lajpat Nagar, accused was found in possession of Heroine/diacetylmorphine capsule from his stomach, weighing 292 Grams and thereby he committed an offence u/s 21(c)/61 of NDPS Act. As the prosecution story would evolve, it would demonstrate that the accused was found lying unconscious before a medical store in Lajpat Nagar, and he was taken to AIIMS Hospital through a PCR Vehicle. The doctors examined him and found that some capsules came out from his rectum through his stool. An NCB Officer, Sh. Azad Singh was called on the spot and upon FIR No.443/2015 State Vs. Noor Amir Page No. 1/46 ARUL Digitally signed by ARUL VARMA VARMA Date: 2023.03.02 14:54:32 -0300 examination of the substance contained in the capsules, through his Drug Detection Kit, came to the conclusion that the substance was heroine. Thereafter, the accused was arrested, and investigation was conducted. Whereafter, the present chargesheet came to be filed.
CHARGES FRAMED QUA THE ACCUSED
2. Charges under section 21(c)/61 of NDPS Act, were framed qua the accused to which he pleaded not guilty and claimed trial.
EVIDENCE LED BY PROSECUTION
3. In the trial, the prosecution in support of its case, examined Ninteen witnesses, the succinct testimonies whereof are as follows:
4. PW-1 ASI Gopal Parsad, deposed that on 12.05.2015, he was posted as ASI at PS Lajpat Nagar. On that day he was on duty as Duty Officer from 05:00 pm to 01:00 am (midnight). During his duty hours, at about 09:50 pm, SI Mahesh had sent a rukka for registration of FIR through Ct. Sitaram. Accordingly, on the basis of the said rukka, he had recorded the present FIR by getting typed through Computer operator. The typed copy of the same is Ex.PW1/A. I had also made an endorsement to this effect Ex.PW1/B on the rukka which bear his signatures at point A. After registration of the FIR, copy of the same alongwith the original rukka was given to the said Ct. Sitaram for handing over the same to SI Mahesh for further investigation.
5. PW-2 Ct. Sudhir Kumar, deposed that on 25.05.2015, he was posted as FIR No.443/2015 State Vs. Noor Amir Page No. 2/46 ARUL Digitally signed by ARUL VARMA VARMA 14:55:13 -0300 Date: 2023.03.02 Constable at PS Lajpat Nagar and was deputed at AIIMS Hospital at D-2 Ward, where one Afghan citizen namely Amir was admitted and he was deputed to keep an eye on him. He further deposed that on said date, the Doctors had decided to discharge said Amir upon which he had sent an intimation to the Police Station upon which IO/SI Ranjan Kumar alongwith one translator Manjeet reached Hospital. IO interrogated said accused with the help of translator. After formal interrogation IO arrested the accused vide arrest memo Ex.PW2/A, bearing his signature at point- A. His personal search was also conducted vide memo Ex.PW2/B, bearing his signature at point-A in which nothing was recovered. After his arrest, again his formal medical examination was got conducted by the IO at AIIMS itself and thereafter, he alongwith me, Ct. Sunil, Translator Manjeet and accused returned to the Police Station, where again IO had made further inquiries from the accused with the help of translator. IO had recorded my statement in this case. During cross examination PW deposed that prior to 25.05.2015, it was on two - three earlier occasions that he was deputed to keep watch on accused at AIIMS. It was at around 03:00 PM that Doctors at AIIMS had decided to discharge the accused. he had immediately inform the IO about this decision of Doctors on the mobile phone. IO had reached at the Hospital after two hours of the information. IO had interrogated the accused at Hospital for around half an hour. IO had remained in Hospital for about three hours. Finally, they FIR No.443/2015 State Vs. Noor Amir Page No. 3/46 Digitally signed ARUL by ARUL VARMA VARMA Date: 2023.03.02 14:55:38 -0300 had left the Hospital at around 08:00 PM and came back to Police Station in IO's Car, but he did not remember as to whether it was Santro or Swift. They reached back at PS at around 08:15 PM. IO had interrogated the accused further at PS for around 10-15 minutes. He further deposed that he did not know when translator Manjeet was allowed to leave the PS. His statement was recorded by the IO at AIIMS. Disclosure statement of accused was also recorded by the IO at AIIMS Hospital. He had not know if IO had reduced in writing the interrogation made by him from the accused at PS. Accused was arrested by IO at around 05:00 PM itself. No written order for his deputation at AIIMS was given to him by the SHO. Ct. Sunil was also deputed with him at the Hospital on 25.05.2015. He had told the IO that Ct. Sunil was also on duty with me at AIIMS.
6. PW-3 SI Mahesh Chand, No. D4017 deposed that on 09.05.2015, he was posted as SI at PS Lajpat Nagar. On that day, one call was received vide DD No. 25-A at around 03:51 PM at the DO Room, which was forwarded to him by the DO after which he alongwith Ct. Satish Solanki went to the spot i.e. MAX 24X7 Medicos, Lajpat Nagar -II. At the spot, he saw one person in an unconscious state. The said person was taken to AIIMS Hospital through PCR. In the Hospital, he was medically examined and the Doctors had declared him 'unfit for statement'. He further deposed that on 10.05.2015 and 11.05.2015, Ct. Satish Solanki was sent to Hospital to inquire about the medical condition of the FIR No.443/2015 State Vs. Noor Amir Page No. 4/46 ARUL Digitally signed by ARUL VARMA VARMA 14:56:01 -0300 Date: 2023.03.02 accused, however, he was reported to be 'unfit for statement'. On 11.05.2015, upon receiving the information regarding recovery of capsules, he alongwith Ct. Sitaram went to Hospital, but as the concerned doctor was not available, he left Ct. Sitaram in the Hospital and came back to PS. In the meantime, on 11.05.2015 Doctor had also informed him through Duty Constable regarding capsules coming out through his rectum of the said person. On 12.05.2015, at about 04:00 PM, the patient was declared fit for statement. On 12.05.2015, 28 more capsules came out from his rectum. The contents of the said capsules were taken out and in the mean time team from Narcotics Department had also arrived in the Hospital, in whose presence the contents were weighed and examined. Upon measuring and examination, the contents of those 28 capsules were found to be 292 Grams of 'Heroine', out of which two samples of 5 Grams each were taken out. The case property, two samples and the packing material were sealed in the separate pullanda with the seal of CMO, AIIMS Hospital. he seized them vide memo now exhibited as Ex.PW3/A, bearing his signature at point-A. He also sealed the already sealed pullanda on 11.05.2015 vide seizure memo now exhibited as Ex.PW3/B, bearing his signature at point-A. The name of said person was revealed as Noor Amir, r/o Jilalabad, Afganistan (accused was present in the Court that day, and correctly identified by the witness). He was interrogated with the help of translator namely Edrish, who was called FIR No.443/2015 State Vs. Noor Amir Page No. 5/46 ARUL Digitally signed by ARUL VARMA VARMA Date: 2023.03.02 14:56:32 -0300 from MAX Hospital, Saket. He further deposed that he also served notice u/s 50 of NDPS Act, upon the accused and copy of which is now exhibited as Ex.PW3/C, bearing his signature at point-A. Accused had given it in writing that he did not want to get himself searched in presence of any Magistrate or Gazetted Officer. He had recorded his version in the Hindi script through the translator Edrish. His reply to notice is Ex.PW3/C-1, bearing his signatures at point-A. He also filled FSL Form. He also seized boarding pass, one slip and other paper found in the pocket of the accused vide memo exhibited as Ex.PW3/D, bearing his signature at point-A and the said documents as Ex.D-1 collectively, which was stapled on one separate sheet. He prepared the rukka already exhibited as Ex.PW1/B, bearing his signatures at point-B and got the FIR registered through Ct. Sitaram. He also prepared the site plan of place of recovery i.e. C-2, ICU, AIIMS, New Delhi now exhibited as Ex.PW3/E, bearing his signature at point-A.
7. PW-4 Ct. Suresh Kumar, No. 852/SD, deposed that on 11.05.2015, he was posted as Duty Constable at AIIMS Hospital. On that day, he was called by the Doctor from C-2 ICU Ward and was handed over one sealed pullanda, carrying the Hospital seal alongwith the sample seal. Doctor had also told him that the sealed material was recovered from the stomach of an unknown patient admitted vide MLC No. 6188/15. he made a call to PS Lajpat Nagar regarding the handing over of the sealed FIR No.443/2015 State Vs. Noor Amir Page No. 6/46 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.03.02 14:57:08 -0300 pullanda and the same was entered in Register vide DD No. 37-A. On 12.05.2015, SI Mahesh Chand came in the Hospital and collected the same from him which was seized by him vide seizure memo already exhibited as Ex.PW3/B, bearing his signatures at point-B. He had also handed over boarding pass and other documents to the IO recovered from the possession of the said patient, which were taken into possession by the IO vide seizure memo already exhibited as Ex.PW3/D, bearing his signatures at point-B.
8. PW-5 Constable Kripal Singh, No. 1124/SD deposed that on 16.05.2015, he was posted as Constable in PS Hauz Khas and was on duty at AIIMS Hospital as Duty Constable. Dr. Panda posted at C-II, ICU Ward, AIIMS Hospital handed over him two sealed pullandas with the seal of 'CMO AIIMS Hospital' with sample seal and had told him that the contents of the sealed pullandas were the material came out from the accused admitted in the Hospital. He had handed over the said pullandas to the IO, who seized the same vide memo exhibited as Ex.PW5/A, bearing his signature at point-A. IO also filled FSL Form and recording his statement.
9. PW6 Sh. Sita Ram S/o Sh. Sh. Hira Lal deposed that on 11.05.2015 he was posted as Ct. at PS Lajpat Nagar and was on emergency duty from 8:00 PM. At around midnight he alongwith IO/SI Mahesh Chand had gone to AIIMS Hospital. He was deputed on security duty of accused FIR No.443/2015 State Vs. Noor Amir Digitally signed by Page No. 7/46 ARUL ARUL VARMA VARMA Date:
2023.03.02 14:57:28 -0300
Noor was already admitted in the hospital. Doctor on duty had informed them that contraband substance being excreted by the accused in his stool in the form of 28 capsules till that time. Officials from Narcotics Cell were also called. Test was conducted and substance was deducted as heroin. The recovered contraband and recovered material sealed in pullanda and seized. he had taken seizure memo, carbon copy, CFSL Form, sealed pullandas and Tehrir to PS for registration of FIR. he had handed over all the material and documents to the SHO except Tehrir. he returned to hospital after getting FIR registered.
10.PW-7 Inspector Ranjan Kumar on 15.05.2015, he was posted as SI at PS Lajpat Nagar. On that day, investigation of this case was entrusted to him. On 16.05.2015, he got the information from AIIMS Hospital that capsules had been recovered from the stomach of the accused. he went to the AIIMS Hospital, where two sealed pullandas were handed over to him by Dr. Parsanna Panda, SR Medicines. He seized them vide seizure memo already exhibited as Ex.PW5/A alongwith sample seal, which bears his signature at point-B. he also filled the FSL Form. he recorded statement of Dr. Parsana and Duty Ct. Kripal Singh. The seized pullandas were handed over to the SHO in the PS, who affixed his seal on the sealed pullandas and FSL Form and deposited the same with the MHC(M). On 25.05.2015, he got the information from the Hospital about the accused being discharged from the Hospital. He went to AIIMS FIR No.443/2015 State Vs. Noor Amir Digitally signed by ARUL ARUL VARMA Page No. 8/46 VARMA Date:
2023.03.02 14:58:02 -0300 Hospital alongwith Ct. Sudhir and translator Manjeet Singh. In the Hospital, accused Noor Amir, was interrogated and was informed about the facts and allegations against him with the help of translator. Accused was arrested and his personal search was conducted vide memos already exhibited as Ex.PW2/A and Ex.PW2/B. Both bearing his signatures at points-B. Disclosure statement of the accused was also recorded, which was already exhibited as Ex.PW2/C, bearing his signature at point-B. Information of his arrest was given to Embassy, which is exhibited as Ex.PW7/A. On the next day, one day PC Remand was obtained from the concerned Court during which he was interrogated, but the source of contraband could not be ascertained. He prepared the report u/s 57 of NDPS Act and handed over the same to the SHO, which was exhibited as Ex.PW7/B, bearing his signature at point-A. On 01.06.2015, the exhibits of this case were sent to FSL, Rohini through Ct. Sunil. He recorded the statements of PWs, completed the file and prepared the charge sheet against the accused and filed in the Court, as per rules.
11.PW-8 Ct. Sunil, No. 3859/SE, deposed that on 01.06.2015, he was posted as Constable at PS Lajpat Nagar. On that day, on the direction of MHC(M) he had taken the sealed pullandas from the Malkhana to deposit the same with FSL, Rohini. he had taken the sealed pullandas in his safe custody and had deposited the same with FSL, Rohini against receipt. He had also taken few documents with him in relation to the sealed pullandas Digitally signed by FIR No.443/2015 State Vs. Noor Amir Page No. 9/46 ARUL ARUL Date:
VARMA VARMA 2023.03.02 14:58:34 -0300
to deposit in FSL, Rohini, but he did not remember the name or description of the said documents. The receipt was handed over to MHCM). IO had recorded my statement to this effect.
12.PW-9 SI Jogender Singh, No. 5957/D deposed that he had brought the summoned record i.e. letter no. 408 dated 14.5.2015, which was sent to SHO, PS, Lajpat Nagar in relation to the details of passport and visa of Noor Amir who has arrived from Kabul to Delhi on 8.5.2015 by KAM Air Flight No. RQ115 in reply to the letter of SHO dated 14.5.2015. The said letter is now Ex. PW9/A. The relevant entry qua this communication was entered in the register duly maintained in the office at sl. no. 408 dated 14.5.2015.(OSR) The copy of the said letter which was received by the police official is now mark X-1.
13.PW-10 Kailash Chand, No. 1359/D, deposed that he had brought the summoned record in relation to the information and reports received in the office of ACP, Lajpat Nagar in compliance of provisions of NDPS Act and u/s 57 of NDPS Act in relation to this case. he had produced the said reports and information before the then ACP Deepak Yadav who had seen the same and signed on each reports copies of which was Ex. PW10/A-C which bears his signatures at point A on each page.
14.PW-11 Sh. Deepak Yadav, deposed that on 13.05.2015, he was posted as ACP Lajpat Nagar. On that day, report u/s 57 of the NDPS Act in this case was received in his office by his reader duly forwarded by SHO PS FIR No.443/2015 State Vs. Noor Amir Digitally signed by Page No. 10/46 ARUL ARUL Date:
VARMA VARMA 2023.03.02 14:58:49 -0300
Lajpat Nagar vide Dairy No. 1224/SHO/LN and was put up before him. He had gone through the said report and signed on it at point-A. The said report was already Ex.PW10/A (OSR). Thereafter, on 16.05.2015 another information u/s 57 of NDPS Act was received in his office from SHO Lajpat Nagar vide his Dairy No. 1252/SHO/LN dated 16.05.2015. The same was put up before him by his Reader on the same day. He had gone through the said report and then signed on it. The said report is already Ex.PW10/B (OSR), bearing his signatures at point-A. Thereafter, on 25.05.2015, information regarding the arrest of accused in this case was received in his office by the reader which was duly forwarded by SHO Lajpat Nagar vide Dairy No. 1333/SHO/LN dated 25.05.2015 and same was put up before me on the same day by his Reader. He had gone through the said report and then signed it. The photocopy of the said report was already Ex.PW10/C (OSR) bearing his signatures at point-A.
15.PW-12 Sh. Idrish, s/o sh. Noorul Haq, deposed that on 12.05.2015, he was working temporally with Max Hospital as Afgani language translator and before that he was working in Fortis Hospital as such. On that day, in the evening on receipt of an information from one Mr. Deepak who was employee in Max Hospital, he went to AIIMS Hospital in ICU Block where he met with IO. Accused Noor Amir was found admitted that and was lying the bed. The condition of accused was not good as something was coming out from his mouth. He was made to sit. PW further deposed FIR No.443/2015 State Vs. Noor Amir Page No. 11/46 ARUL Digitally signed by ARUL VARMA VARMA 14:59:16 -0300 Date: 2023.03.02 that he was asked by IO to inform the accused in pashto language that drugs had been recovered through stool from his stomach and that his further test would be done in presence of a Magistrate or a Gazetted officer to which accused reply by saying "theek hai". He had conversed with the accused and came to know that he understands pashto language. Thereafter, he asked about the address of the accused in the same language which he told him that he was from Jalalabad, Afganistan. he informed above facts to IO in Hindi language as disclosed by accused and thereafter he came out from the ward. There he had signed on some papers written in Hindi, but he did not know about the contents of the said documents as he could not read Hindi language but he could only speak and understand the said language. He had seen photocopy of a notice u/s 50 of the NDPS Act which bears his signatures at point-D. The document was already Ex.PW3/C. he had seen another document lying the Court file the same also bears his signatures at point-A. The said document was a seizure memo of Heroine already Ex.PW3/A. PW voluntarily deposed that he did not know about the contents of the documents Ex.PW3/A & C. Further volunteered at that time when he had signed on these documents he was told by the police officials that these documents were relating to the translation done by him with the accused at the behest of the IO. He did not want to say anything else nor could he identify any case property or drugs. He voluntarily deposed that nothing FIR No.443/2015 State Vs. Noor Amir Page No. 12/46 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.03.02 15:00:42 -0300 was recovered or seized in his presence.
16.PW-13 Dr. Subhra Kr. Paul, Senior Scientific Officer deposed that he was Phd. in Science and working as Senior Scientific Officer (Chemistry) in FSL Rohini since 2010. Before that he was working as Technical Assistant in Central Food Laboratory in Kolkata. He worked at Ministry Health and Family since 1998. During his working as Senior Scientific Officer, he had examined around 300 NDPS Cases and 2000 cases in general and had deposed in various courts of law as an expert witness in said respect. In this case, as per record on 01.06.2015 five sealed parcels having four seals of CMO AIIMS Hospital New Delhi and one seal of RK on each parcel alongwith the forwarding letter were received through Ct. Sunil. Alongwith the above sealed pullandas, forwarding letter and other documents were also received (the forwarding letter and the examination sheet etc. were taken on record with the permission of court from the witness and the copy of the same was supplied to Ld. Defence Counsel). The photocopy of the forwarding letter was Ex.PW13/A (1 to 10 pages) (OSR). He also received copy of FIR, copy of seizure memo Heroin, copy of seizure memo pullanda seal shuda with sample seal, copy of seizure memo two pullanda alongwith sample seal, copy of MLC No. 6188/2015 of AIIMS Hospital dated 09.05.2015, carbon copy of RC No. 52/21/15, original acknowledgment of case acceptance. Copy of which was Ex.PW13/B (OSR). The seals on all the parcels were found intact FIR No.443/2015 State Vs. Noor Amir Page No. 13/46 ARUL Digitally signed by ARUL VARMA VARMA 15:00:54 -0300 Date: 2023.03.02 and tallied with the forwarding letter and the same were marked to him for examination. He examined the said exhibits from 06.07.2015 to 29.09.2015. On opening parcel No. S-1 was found containing light brownish coloured powdery material with granules and lumps stated to be Heroin, weight approx. 8.49 gm with polythene. Parcel No. S-2 was found containing light brownish coloured powdery material with granules and lumps stated to be Heroin, weight approx. 8.01 gm with polythene. Parcel No. S-3 was found containing off white coloured powdery material with granules and lumps, weight approx. 11.04 gm with polythene. Parcel No. S-4 was found containing off white coloured material with lumps, weight approx. 10.76 gm with polythene and Parcel No. 5 was found containing light brownish coloured pasty material weight approx. 15.90 gm with polythene. The details and the description and quantity of the substance was mentioned by him in his detailed FSL Report. On chemical, TLC & GC-MS examinations, (I) Exhibits 'S-1', 'S-2', 'S-3/1', 'S-3/2', 'S-3/3', 'S-3/4', 'S-3/5', 'S-3/6', 'S-3/7', 'S-3/8', 'S-3/9', 'S-3/10', 'S- 3/11', 'S-3/12', 'S-3/13', 'S-3/14', 'S-3/15', 'S-3/16', 'S-3/17', 'S-3/18', 'S- 3/19', 'S-3/20', 'S-4/1', 'S-4/2', 'S-4/3', 'S-4/4', 'S-5/1', 'S-5/2', 'S-5/3', 'S- 5/4', 'S-5/5', 'S-5/6', 'S-5/7', 'S-5/8', 'S-5/9', 'S-5/10', 'S-5/11', 'S-5/12', 'S- 5/13', 'S-5/14', 'S-5/15', 'S-5/16', 'S-5/17', 'S-5/18', 'S-5/19', 'S-5/20', 'S- 5/21', 'S-5/22', 'S-5/23', 'S-5/24', 'S-5/25', 'S-5/26', 'S-5/27', 'S-5/28', 'S- 5/29', 'S-5/30', 'S-5/31', 'S-5/32', 'S-5/33', 'S-5/34', 'S-5/35', 'S-5/36','S- FIR No.443/2015 State Vs. Noor Amir Page No. 14/46
ARUL Digitally signed by ARUL VARMA VARMA Date: 2023.03.02 15:01:44 -0300 5/37', 'S-5/38', 'S-5/39' & 'S-5/40' were found to contain, 'Diacetylmorphine, 6-monoacetylmorphine & Caffeine. He also gave the percentage of diacetylmorphine in the above exhibits as per the request of the investigating agency and the same was mentioned by him in his detailed report of examination. His detailed report of examination is Ex.PW13/C, bearing his signatures on each page at point-A which was prepared by him on 29.09.2015. After the examination, the remnants of the exhibits were resealed with the seal of SKP, FSL, DELHI and went sent to SHO, PS Lajpat Nagar alongwith his report and forwarding letter. The impression of the seal was also affixed on the report and the forwarding letter. The forwarding letter is Ex.PW13/D, bearing his signatures at point-A. The photocopies of the case opending sheet are Ex.PW13/E (1 to 14 pages) (OSR).
17.PW-14 Smt. Anju Dixit, MRT deposed that she had been authorized by Chief Medical Record Officer Petty S. Lingdoh to appear in the court and to identify signatures of Dr. Dharni Priya Ari Krishnan, Dr. Prashant Kumar Tripathi and Dr. Azruddin Jalaludin on MLC Nos. 7100/15, 7155/15 & 7198/15 of patient Noor Amir s/o Sh. Sayed Amir aged 45 year male. As per the record, Noor Amir was brought to hospital on 25.05.2015 at 08:58 pm by police for medical examination with the alleged history as mentioned in the above MLCs. The patient was examined by above doctors as she had above doctors writing and signing FIR No.443/2015 State Vs. Noor Amir Page No. 15/46 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.03.02 15:01:54 -0300 during course of officials duties as Doctors come to their Department for taking files etc. and at that time they signed in their presence. The above MLCs were Ex.PW14/A to C upon which she identified the signatures of Dr. Dharni Priya Ari Krishnan, Dr. Prashant Kumar Tripathi and Dr. Azruddin Jalaludin at point-A on each MLC due to above reasons. The above doctors had left the services of the Hospital after completion of their tenure as JR and their present whereabouts were not known. She further deposed that her authorization letter to appear in the Court was Ex.PW14/D which bears her signatures at point-A and the signatures of her Supdt. at point-B which she identified as she had signed on Ex.PW14/D in her presence while authorizing me.
18.PW-15 Dr. Murtaza Ali, Physician in J & K Health Services, deposed that on 09.05.2015 an unknown patient later known to be Noor Amir i.e. accused present in Court, was admitted in the AIIMS Hospital by the police as he was found unconscious on road side. There was no relevant history of the patient at that time. The patient was middle aged man of average built, unconscious with GCSE1V1M1 with BP 110/60 MM HG and PR 106/MIN, RR-10/min. Peoples were bilaterally constricted with minimal reaction to light with bilateral conjuctival congestion. There was no fever, signs of injury, neck rigidity or skin lesions. Chest examination showed bilateral inspiratory crepitation. Other systematic examinations were normal. The patient was given necessary treatment and his FIR No.443/2015 State Vs. Noor Amir Digitally signed by Page No. 16/46 ARUL ARUL VARMA VARMA Date:
2023.03.02 15:02:27 -0300
necessary tests were got done. The patient was not responding to all conventional treatment. Patient was put on nelexon (ante-dot of opoid i.e. some narcotics drugs). Patient responded dramatically and was weaned off ventilator. His X-ray chest showed radiodense shadows near gestric shadow while his X-ray abdomen showed multiple ovoid radiodense shadows throughout abdomen. He spontaneously passed multiple cylindrical shaped packets of polythene with a material which was later found to be heroin on chemical analysis. A CETC confirmed the findings and showed multiple packets throughout the abdomen with maximum(around30) in stomach alongwith features of aspiration pneumonia. His other biochemical parameters were normal and urine examination showed morphine positivity. Naloxone was continued and daily enema was given, and patient passed 52 packets in stool. Patient regained consciousness and on questioning, he was found to be a resident of Afghanistan, and the details were confirmed using an interpreter. On 5th day his sensorium deteriorated with a fall in respiratory rate and he was started on Naloxone IV infusion at 0.2 mg/hr with improvement of sensorium. An emergency Upper GI endoscopy was attempted to remove the packets as there was a suspicion of a leakage of opioid from the packet. Since the packets were getting stuck at gastroesophageal junction and as there was a significant risk of rupture if force was applied, endoscopical removal was abandoned. It was further deposed that his FIR No.443/2015 State Vs. Noor Amir Page No. 17/46 ARUL Digitally signed by ARUL VARMA VARMA 15:02:38 -0300 Date: 2023.03.02 sensorium and respiration worsened and he was reintubated and manitained on Naloxone infusion. Since the patient was deteriorating even with Naloxone infusion and as there was a suspicion of leakage from the packets inside abdomen, he was taken up for emergency Exploratory laparotomy with gastrostomy. All the packets were removed from stomach and rest were removed by milking of the intestine. 40 packets were thus removed surgically. A total of 92 packets (Each one weighing approximately 12 grams) has been handed over to the concerned police officers (Mr. Sudesh Kumar, Mr. Mahesh). He recovered in the postop period and was weaned out of ventilator and the Naloxone infusion was stopped. He was discharged in a stable condition on 25.05.2015 and was prescribed necessary medication and follow up at that time. He further deposed that he prepared the detailed discharge summary of the said patient and same was Ex.PW15/A, bearing his signatures at point-A.
19.PW- 16 Sh. Ramesh Kumar, ACP, Vasant Kunj, deposed that on 12.05.2015, he was posted as S.H.O P.S Lajpat Nagar, New Delhi. On that day Const. Sita Ram came to his office at about 09.55 pm and produced before him 05 sealed pullandas pertaining to the present case out of which four were marked as Mark P-1, H-1, S-1, S-2 and one pullanda with mark S-3 on which MLC No. 6188/15, unknown 135 and other details were mentioned and which was seized on 11.05.2015 and all FIR No.443/2015 State Vs. Noor Amir Page No. 18/46 ARUL Digitally signed by ARUL VARMA VARMA Date:
2023.03.02 15:03:05 -
0300 Digitally signed by ARUL ARUL VARMA Date: VARMA 2023.03.02 15:03:53 - 0300
were duly sealed with the seal of "CMO AIIMS Hospital DELHI" with sample seal of CMO AIIMS Hospital DELHI and FSL form and carbon copy of two seizure memos. Thereafter he called duty officer and after asking concerned FIR number, he mentioned details of present i.e. FIR 443/15 PS Lajpat Nagar on all the produced pullandas, FSL forms and copy of seizure memos and put my signature. Thereafter he sealed all the 05 pullandas with the seal of 'RK' and also put the impression of abovesaid seal on FSL form. Thereafter, he called then MHC(M) HC Harkesh P.S. Lajpat Nagar alongwith Malkhana register and handed over all the abovesaid pullandas, sample seal, FSL form and carbon copies of seizure memos to MHC(M) which was deposited in the malkhana and entry was made in the malkhana register, copy of which was Ex.PW-
16/A. ThereafterheI lodged DD No.47A in the roznamcha, P.S. Lajpat Nagar dated 12.05.2015, true copy of which was Ex.PW-16/B bearing his signature at point A and signature of then ACP Sh. Deepak Yadav at point B, in compliance of provision of Section 55 of NDPS Act. On 16.05.2015, SI Ranjan produced him two sealed pulandas, both duly sealed with the seal of 'CMO AIIMS Hospital DELHI', FSL form and copy of seizure memo. He sealed both the pullandas with his seal of 'RK' and also put the impression of abovesaid seal on FSL form. Thereafter, he called then MHC(M) HC Harkesh P.S. Lajpat Nagar alongwith Malkhana register and handed over both the abovesaid pullandas, sample seal, FSL FIR No.443/2015 State Vs. Noor Amir Page No. 19/46 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.03.02 15:04:07 -0300 form and carbon copy of seizure memos to MHC(M) which was deposited in the malkhana and entry was made in the malkhana register, copy of which was Ex.PW-16/C. Thereafter he lodged DD No.23A in the roznamcha, P.S. Lajpat Nagar dated 16.05.2015, true copy of which was Ex.PW-16/D bearing his signature at point A and signature of then ACP Sh. Deepak Yadav at point B, in compliance of provision of Section 55 of NDPS Act. In compliance of section 57 of NDPS Act on 13.05.2015, intimation was furnished to ACP, Lajpat Nagar vide Diary No.1224/SHO/LN dated 13.05.2015 vide letter already Ex.PW-10/A bearing his signature at point B. Again on 16.05.2015, intimation was furnished to ACP, Lajpat Nagar vide Diary No.1252/SHO/LN dated 16.05.2015 vide letter already Ex.PW-10/B bearing his signature at point B. Intimation of the arrest of accused was sent to ACP, Lajpat Nagar vide Diary No.1333/SHO/LN dated 25.05.2015 vide letter already Ex.PW-
10/C bearing his signature at point B. Later on, IO inquired him and recorded his statement under Section 161 Cr.P.C to the abovesaid fact. So long the case property remained in his possession same was not tampered with in any manner.
20.PW-17 Sh. Azad Singh Asstt. Deposed that on 12.05.2015 he was serving as intelligence officer narcotics control bureau Delhi Zonal Unit, R.K.Puram, New Delhi. On that day he was called by SI Mahesh Chand, PS Lajpat Nagar in AIIMS Hospital to check some narcotics substance. FIR No.443/2015 State Vs. Noor Amir Page No. 20/46
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2023.03.02 15:05:39 -0300 Accordingly he along with his team reached AIIMS Hospital and there SI Mahesh apprised him with the facts. The doctor gave 28 capsule in cylindrical shape to SI Mahesh. Each capsules was wrapped in plastic transparent tape. A very small quantity of substance was taken out from each capsule and he alongwith his team member tested the substance by the drugs detecting kit and the substance taken from each capsules gave positive result of 'Heroin' The substance of each capsules was tested one by one. SI Mahesh recorded his statement to the above said effect on 13.05.2015.
21.PW-18 Dr. Sryma PB, deposed that in month of May, 2015 she was working as JR in AIIMS, New Delhi. In the present case, on 9.5.2015 vide MLC No. 6188/15 a person with unknown credentials was got admitted who was brought by Ct. Satish with alleged history of poisoning and in the evening at about 11.58pm, said patient was admitted in C-2, ICU where she was on duty. Trough clinical features on 10.5.2015 the patient was ascertained to have opioid poisoning. On 11.5.2015 through stool 20 cylindrical pieces wrapped with transparent tape came out of bowel of said person. She collected all the cylindrical pieces and sealed them with seal of CMO AIIMS HOPT ND and handed over the same with sample seal to Ct. Suresh Kumar who was on duty in the hospital. On next date, i.e 12.5.2015 through stool by 5pm total 28 cylindrical pieces wrapped with transparent tape came out of bowel of said person. FIR No.443/2015 State Vs. Noor Amir Page No. 21/46
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2023.03.02 15:05:52 -0300 She collected all the cylindrical pieces and handed over the same to the IO/SI Mahesh Chand who had reached hospital. IO removed the transparent tape with which each cylindrical pieces were wrapped and inside the same, polythene containing powdery material kept in polythene and wrapped with thread was found. IO checked small quantity of the powdery material from the recovered pieces and found them to be heroin. Thereafter, IO collected all the powdery material from all 28 cylindrical pieces and weighed the same. On weighing the total content/heroin/powdery material came tobe 292grams. IO separated two samples of 5 grams each and prepared pullanda of both the samples and the case property which were given mark H1, S1 and S2 and the packing material was converted into a separate pullanda mark P1. Thereafter, on the request of the IO, she sealed all four pullandas with seal of CMO AIIMS HOPT ND and also prepared a sample seal which she handed over to the IO. IO seized all the case property vide Fard Ex. PW3/A bearing her signature at point Y. At the time of aforementioned proceeding were conducted, translator Edrish was also present in the hospital who told the patient from whom aforementioned heroin was recovered about nature of proceedings in his vernacular language. Identity of patient was also established as Noor Amir. IO recorded her statement to the above said fact.
22.PW-19 Dr. Prasan Kumar Panda, deposed that in month of May, 2015 FIR No.443/2015 State Vs. Noor Amir Page No. 22/46 ARUL Digitally signed by ARUL VARMA VARMA Date: 2023.03.02 15:06:02 -0300 he was working as SR in AIIMS, New Delhi. In the present case, on 16.5.2015, he handed over to police two sealed pullandas each with seal of CMO AIIMS HOPT ND alongwith sample seals. Out of those two pullandas, one pullanda was containing 4 cylindrical pieces wrapped with transparent tape which on 13.5.2015 came out of bowel through stool of patient Noor Amir who was admitted in the hospital vide MLC No. 6188/15. He had collected all the four cylindrical pieces and sealed them with aforesaid seal of CMO in a plastic container. On 16.5.2015 through surgery of aforesaid patient, 40 cylindrical pieces wrapped with transparent tape were recovered from his bowel of the patient which he collected and separately kept in a plastic container and tied it with doctor tape and sealed it with seal of CMO AIIMS HOPT ND. he handed over to the above sealed containers with sample seal to the police on 16.5.2015 which was seized by the IO vide Fard Ex. PW5/A bearing his signatures at point A. IO also filled up form FSL containing aforesaid seal impression.
23.The relevancy of the witnesses examined are succinctly delineated in the following tabular form:
PW NAME RELEVANCE
1 ASI Gopal Prasad He was the Duty Officer who
recorded FIR Ex. PW1/A, on the
basis of rukka brought by Ct
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VARMA
VARMA Date:
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Sitaram
2 Ct Sudhir Kumar He was a witness to the arrest
memo Ex.PW2/A, personal
search memo Ex. PW2/B and
disclosure statement Ex. PW2/C.
3 SI Mahesh Chand He was the complainant and he
also served notice u/s 50 NDPS
Act, Ex.PW3/C.
4 Ct Suresh Kumar He was the duty constable at
AIIMS Hospital, who was
handed over one sealed pullanda
of material recovered from the
stomach of the accused. The said
pullanda was sezied by SI
Mahesh Chand vide seizure
memo Ex.PW3/B.
5 Ct Kripal Singh He was also posted as Duty
Constable, AIIMS Hospital, and
was handed over two sealed
pullandas of material recovered
from the stomach of the accused.
The said pullanda was seized by
IO vide seizure memo Ex.
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PW5/A.
6 Ct Sitaram He was on emergency duty at PS
Lajpat Nagar, and had gone
alongwith IO SI Mahesh Chand
to AIIMS Hospital. He had taken
seizure memo, carbon copy, FSL
form, sealed pullandas and tehrir
to PS for registration of an FIR.
7 Inspector Ranjan Kumar He prepared Ex.PW7/B i.e.
reports u/s 57 of NDPS Act and
handed over the same to SHO
8 Ct Sunil He had taken sealed pullands,
FSL form and sample seal to FSL
vide RC No.52/21/15 on the
directions of MHC(M).
9 SI Joginder Singh. He was posted at FRRO, R.K
Puram, and he produced the
details of passport and visa of
accused who arrived from Kabul
to Delhi on 08.05.2015, and
proved summoned record ie
letter no 408 dated 14.05.2015 as
Ex. PW9/A.
FIR No.443/2015 State Vs. Noor Amir ARUL ARUL VARMAPage No. 25/46
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10 SI Kailash Chand. He was Reader to the ACP and
proved entries regarding receipt
of report u/s 57 NDPS Act
pertaining to recovery of
contraband items from the
accused, and placing of the
report before the ACP ie
Ex.PW10/Ato C
11 Deepak Yadav, SP He was posted as ACP, Lajpat
Nagar and proved receipt of
reports u/s 57 of NDPS Act Ex.
PW10/A
12 Idrish He was the Afghani Language
Translator who explained the
contents of Section 50 NDPS Act
notice to the accused
13 Dr. Shubhra Kumar He was the FSL Expert, who
Paul proved his report Ex. PW13/C
whereby it was opined that the
contraband item was heroine.
14 Anju Dixit She identified the sigatures of Dr
Dharni Priya Arikrishanan, Dr
Prashant Kumar Tripathi and Dr
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Azruddin Jalaluddin on MLCs of
accused as Ex. PW14/A to C.
15 Dr. Murtuza Ali He proved the factum of
presence of contraband
substances in the stomach of the
accused and proved the discharge
summary Ex. PW15/A.
16 ACP Ramesh Kumar He was posted as SHO PS Lajpat
Nagar and received sealed
articles, FSL Form, carbon
copies of seizure memos from
PW6 Ct Sitaram on which he
affixed his seal of RK and
deposited the same in the
Malkhana after making entry in
register no 19 in compliance of
Section 55 of the NDPS Act
17 Azad Singh, Assistant He was the Intelligence Officer,
Commandant NCB, who tested the sample
substance in the Drug Detection
Kit and averred that substance
taken from each capsule gave
positive result of heroin.
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VARMA Date:
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18 Dr Sryma P.B She was JR in AIIMS, who
collected the cylindrical pieces
which came out from the bowel
of the accused person, and sealed
them with the seal of CMO
AIIMS HOPT ND and handed
over the same to the IO.
19 Dr Prasan Kumar Panda He was SR in AIIMS, who
collected the cylindrical pieces
which came out from the bowel
of the accused person, and sealed
them with the seal of CMO
AIIMS HOPT ND and handed
over the same to the IO.
STATEMENT OF ACCUSED
24.Accused was examined u/s 313 Cr.PC. In his defence, he averred that he does not know anything about this case and has been falsely implicated in this case. He deposed that prior to this case, he had visited India for getting Kidney stone operation and which was done. Further, he deposed that due to his kidney problem, he came to India to consult the doctor and when he reached at the Airport, he asked some taxi drivers to take him at FIR No.443/2015 State Vs. Noor Amir Page No. 28/46 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.03.02 15:09:32 -0300 some place/colony where some Afghani Nationals were staying. It was further deposed by accused that he was taken to Lajpat Nagar by one taxi driver, and he stayed in a room. After about one hour, police visited there and apprehended him. The police took him to some hospital and there he became unconscious but he did not know the reason of unconsciousness as to whether he was made unconscious by doctor or due to his own health problem. He further deposed that no such narcotic substance was recovered from his abdomen or his body. He did not bring such capsules or Heroine from his country and these are the false allegations and he did not know how the same has been planted upon him. Further, accused did not lead DE in his defence.
ARGUMENTS OF LD. ADDL. PUBLIC PROSECUTOR FOR THE STATE AND LD. DEFENCE COUNSEL
25. Sh. Wasi-Ur- Rahman, Ld. Addl. PP for the State submitted that in this case the information was given by some unknown independent person wherein it was stated that the accused was lying unconscious, on this information the accused was taken to hospital and there some cylindrical capsules had come out through the rectum of the accused. It was further submitted that the said capsules were handed over to police, which were got examined through the experts and the same were revealed to be contained heroine. Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.03.02 15:09:45 -0300 FIR No.443/2015 State Vs. Noor Amir Page No. 29/46
26. Furthermore, every time such capsules came out from the body through stools or otherwise and the same were found containing heroine, was revealed later on. Therefore, in this case, the compliance of Section 50 and 42 NDPS Act are not required because there is no prior information of having such contraband substance with the accused. Ld. Addl PP for State further contended that although in the present case after making the first recovery and when the accused regained his consciousness, the notice u/s 50 NDPS Act was served upon him and he was apprised about his legal rights in respect of his search for the recovery of contraband substance, if any, from his body. But the accused did not avail his rights and he had given his refusal in writing. It was also contended that even non compliance of Section 50 NDPS Act may not vitiate the trial if it does not cause prejudice to the accused as held in Bahadur Singh Vs State of Haryana (2010) 4 SCC 445. As regards, the compliance of Section 50 of NDPS Act the same is not attracted in case of chance recovery as held in case State of Punjab Vs Balbir Singh AIR 1994 SC 1872; AIR 2004 SC 2491.
27. Per contra, Sh. M Nabi, Ld. Counsel for accused submitted that prosecution did not examine alleged translator Manjeet before the Court, who was the translator of the proceedings dated 25.05.2015. It was further submitted that in the statement of PW-2 Ct Sudhir Kumar, it was ARUL Digitally signed by ARUL VARMA VARMA 15:10:03 -0300 Date: 2023.03.02 FIR No.443/2015 State Vs. Noor Amir Page No. 30/46 stated that the competency and antecedents of the translator Manjeet was not proved nor any affidavit was taken from him about his authenticity about correct translator. Ld. Counsel for accused further submitted that there was difference in colour of substance sent to FSL as the colour of parcel S-1 and S-2 was found light brownish coloured powdery material with granules and lumps, parcel no S-3 and S-4 was found containing off white coloured powdery material with granules and lumps and parcel no. 5 was found containing light brownish coloured pasty material. It was also contended that weight of alleged recovery of contraband cannot be said to be proper and exact as the same differes from the weight given in the report ofPW-13 Dr Subhra Kumar Paul. It was also contended that in the testimony of PW-3 IO /SI Mahesh Chand, he categorically deposed that he could not tell the numbers of test or about the nature of test performed by the said officials of Narcotic Department. Ld Counsel for accused placed reliance on State Vs Denis Jauregul Mendizabal CRL.LP 241/2020.
STATEMENT OF REASONS FOR THE DECISION A. APPREHENSION OF ACCUSED AND RECOVERY OF ALLEGED CONTRABAND FROM HIM
28. Ordinarily, in cases under the NDPS Act arrests are made and recoveries are effected at the instance of a ubiquitous secret informer. However, in this peculiar case, the recoveries of contraband substance was effected Digitally signed ARUL by ARUL VARMA VARMA 2023.03.02 Date:
15:10:42 -0300 FIR No.443/2015 State Vs. Noor Amir Page No. 31/46 from the accused by sheer chance. As is explicit from the case of prosecution, the accused was found on the spot ie Max 24x7 Medicos, Lajpat Nagar-II in an unconscious state. Thereafter, as per the testimony of PW-3 IO/SI Mahesh Chand, the accused was taken to AIIMS Hospital by a PCR vehicle. It was PW-3 SI Mahesh Chand, who was posted as SI at PS Lajpat Nagar, who on 09.05.2015, received call at 3:51 PM vide DD no. 25 A. The IO further deposed that it was informed to him that on 12.05.2015, some capsules came out from the rectum of the accused and upon examination of those capsules, they were found to contain heroine.
29.It is pertinent to note that PW-15 Dr Murtaza Ali, PW-18 Dr. Sryma P.B and PW-19 Dr Prasang Kumar Panda, were the doctors who examined the accused and they all proved the factum of presence of contraband substances in the stomach of the accused.
30. PW-15 Dr. Murtaza Ali had prepared the discharge summary of accused Ex.Pw15/A. He had further identified the accused in the court as being the patient, who was admitted in AIIMS hospital by police as he was found unconscious on the road side. He averred as thus:
"Patient was put on nelexon (antedot of opoid i.e. some narcotics drugs). Patient responded dramatically and was weaned off ventilator. His Xray chest showed radiodense shadows near gestric shadow while his X ray abdomen showed multiple ovoid radiodense shadows throughout abdomen. He spontaneously passed multiple cylindrical shaped packets of polythene with a material which was later found to be heroin on chemical analysis. A CETC confirmed the findings and showed multiple packets throughout the FIR No.443/2015 State Vs. Noor Amir Page No. 32/46 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.03.02 15:10:57 -0300 abdomen with maximum(around30) in stomach alongwith features of aspiration pneumonia. His other biochemical parameters were normal and urine examination showed morphine positivity. Naloxone was continued and daily enema was given, and patient passed 52 packets in stool"
All the packets were removed from stomach and rest were removed by milking of the intestine. 40 packets were thus removed surgically. A total of 92 packets (Each one weighing approximately 12 grams) has been handed over to the concerned police officers (Mr. Sudesh Kumar, Mr. Mahesh)"
31. Similarly, PW-18 Dr Sryma P.B also identified the accused as being her patient who was brought by Ct Satish. She categorically deposed that on 11.05.2015, through the stool of the accused, 20 cylindrical pieces wrapped with transparent tape came out of his bowel. Further, on 12.05.2015 through the stool of the accused, total 28 cylindrical pieces wrapped with transparent tape came out of his bowel. She collected all the cylindrical pieces, sealed them with the seal of CMO AIIMS HOPT ND, and handed over the same to the IO/SI Mahesh Chand. She categorically deposed that the IO weighed the said material in her presence and also separated the sample.
32.It would also be pertinent to peruse the testimony of PW-19 Dr Prasana Kumar Panda, who also deposed on similar lines. He deposed that on 16.05.2015, through surgery of the accused, 40 cylindrical pieces wrapped with transparent tape were recovered from his bowel, which were sealed with the seal of CMO AIIMS HOPT ND, and handed over the same to the IO/SI Mahesh Chand, who seized the same through FIR No.443/2015 State Vs. Noor Amir Page No. 33/46 Digitally signed ARUL by ARUL VARMA VARMA 2023.03.02 Date:
15:11:13 -0300 Ex.PW5/A.
33. All the witnesses identified the case property, when produced in court.
Thus, it cannot be gainsaid that the contraband item was recovered from the stomach of the accused.
34. The factum of items recovered from the stomach of the accused being contraband items were prima facie established by PW-17 Sh. Azad Singh Assistant Commandant, who deposed that he and his team members tested the substance recovered by the Drug Detection kit which gave the result as 'Heroine'.
35.Thereafter, the proceeding commenced to register a case under the NDPS Act. It has already been established that by 12.05.2015, the doctors at AIIMS had conveyed to the police officials that contraband items were coming out from the rectum of the accused. PW-2 Cr Sudhir Kumar deposed that he and PW-3 IO/SI Mahesh Chand interrogated the accused with the help of translator Manjeet and arrested the accused vide arrest memo Ex.PW2/A and conducted his personal search vide memo Ex.PW2/B. A disclosure statement Ex.PW2/C was also recorded.
36. The handing over of contraband items from the doctors to police officials is established by the testimony of PW-3 SI Mahesh Chand, PW-4 Ct Suresh,PW-5 Ct Kripal Singh, PW-6 Ct Sitaram and PW-7 SI Ranjan Kumar.
37. The contention of Ld. Counsel for the accused that no public witnesses FIR No.443/2015 State Vs. Noor Amir Page No. 34/46 ARUL Digitally signed by ARUL VARMA VARMA Date: 2023.03.02 15:11:29 -0300 were joined nor notice to any public witness was given to join the proceedings, pales into insignificance in light of the above testimony of the doctors of AIIMS hospital. Significantly, in this context, it would be useful to peruse the following extracts of Ajmer Singh v State of Haryana (2010) 3 SCC 746:
"19 The learned counsel for the appellant has submitted that the evidence of the official witnesses cannot be relied upon as their testimony, has not been corroborated by any independent witness. We are unable to agree with the said submission of the learned counsel. It is clear from the testimony of the prosecution witnesses PW 3, Paramjit Singh Ahalwat, DSP, Pehowa; PW 4, Raja Ram, Head Constable and PW 5, Maya Ram, which is on record, that efforts were made by the investigating party to include independent witness at the time of recovery, but none was willing. It is true that a charge under the Act is serious and carries onerous consequences. The minimum sentence prescribed under the Act is imprisonment of 10 years and a fine. In this situation, it is normally expected that there should be independent evidence to support the case of the prosecution. However, it is not an inviolable rule. Therefore, in the peculiar circumstances of this case, we are satisfied that it would be travesty of justice, if the appellant is acquitted merely because no independent witness has been produced. 20 We cannot forget that it may not be possible to find independent witness at all places, at all times. The obligation to take public witnesses is not absolute. If after making efforts which the court considered in the circumstances of the case reasonable, the police officer is not able to get public witnesses to associate with the raid or arrest of the culprit, the arrest and the recovery made would not be necessarily vitiated. The court will have to appreciate the relevant evidence and will have to determine whether the evidence of the police officer was believable after taking due care and caution in evaluating their evidence."
38.Thus, the testimony of police witnesses cannot be disregarded merely on account of non joining of public witnesses.
B. REGISTRATION OF FIR, DEPOSIT OF RECOVERED CONTRABAND IN SEALED PULLANDAS IN THE MALKHANA FIR No.443/2015 State Vs. Noor Amir Page No. 35/46 Digitally signed by ARUL ARUL VARMA VARMA Date:
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39. PW6 Sitaram, who was posted on emergency duty from 08:00 PM onwards on 11.05.2015 categorically deposed that he was deputed on security duty of accused, who was admitted at AIIMS Hospital and the doctor on duty informed that contraband substance was being excreted by the accused in his stool in the form of capsules. He deposed that he officials of Narcotic Cell and IO/SI Mahesh Chand were also present, and test was conducted upon the substances and it was found to be heroine. He submitted that he took seizure memo, carbon copy, CFSL form, sealed pullandas and tehrir to PS for registration of FIR.
40.PW-1 ASI Gopal Prasad had submitted that he was a duty Officer on 12.05.2015, between 05:00 PM to 01:00 AM mid night, and at about 09:50 PM SI Mahesh had sent a rukka for registration of FIR through Ct Sitaram, on the basis of which this witness got the present FIR EX. PW1/A registered.
C. COMPLIANCE OF SECTION 55 OF THE NDPS ACT BY THE SHO
41.At this juncture, it would be apt to refer to Section 55 of the NDPS Act:
"SECTION 55. Police to take charge of articles seized and delivered.- An officer-in -charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in-charge of the police station."
42.In the present case, ACP Ramesh Kumar, the officer In charge of PS FIR No.443/2015 State Vs. Noor Amir Page No. 36/46 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.03.02 15:12:24 -0300 Lajpat Nagar was examined as PW-16. He categorically deposed that on 12.05.2015, PW-6 Ct Sitaram came to his office at about 09:55 PM and produced 5 sealed pullandas out of which 4 were marked as mark P-1, H-
1, S-1, S-2 and one pullanda with mark S-3. He deposed that all the pullandas were duly sealed with the seal of CMO AIIMS Hospital Delhi with sample seal of CMO AIIMS Hospital Delhi and FSL form and Carbon Copies of two seizure memos. Thereafter, the said witness sealed all the five pullandas with his seal of RK, and also put the impression of the abovesaid seal on FSL Form.
43.Thereafter, PW-16 called the MHC(M) Hc Harkesh alongwith Malkhana register, handed over the case property to the MHC(M) and signed Malkhana register entry whereof is Ex. PW16/A. This witness also proved the DD no.47 A PS Lajpat Nagar dated 12.05.2015 as Ex. PW16/B which bore his signatures at point A and that of then ACP Sh. Deepak Yadav at point B in compliance of provisions of Section 55 of NDPS Act.
44. PW-16 ACP Ramesh Kumar further deposed that on 16.05.2015, SI Ranjan also produced two sealed pullandas with seal of CMO AIIMS Hospital Delhi alongwith FSL form and copy of seizure memo, which was again sealed by PW-16 with his seal of RK. These pullandas were also handed over to the MHC(M) and DD no. 23 A dated 16.05.2015 ie Ex.PW16/D was proved by the witness in this regard. The witness denied FIR No.443/2015 State Vs. Noor Amir Page No. 37/46 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.03.02 15:12:45 -0300 the suggestion that he did not sealed the case property with his seal or did not deposit the same in the Malkhana. In fact the witness categorically brought to the fore that the seal remained with him after use.
45. Thus, as is evident from the above deposition the prosecution evidence clearly discloses that the sealed articles were produced before Officer Incharge of the police station, that he had put his seal over those articles and there were sent for safe custody. Thus, there is due compliance of Section 55 of NDPS Act in terms of Ashok Kumar Vs State of Haryana AIR 2000 SC 3474 D. REPORT UNDER SECTION 57 OF NDPS ACT
46.It would be apposite to refer to Section 57 of the Act, which is reproduced hereunder:
"Whenever any person makes any arrest or seizure, under this Act, he shall, within forty eight hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior."
47.The legislative intent behind Section 57 of the Act, has been delved upon in Megha Ram v State of Rajasthan 1997 Cri LJ 3091 in the following words:
"Section 57 comes into play in the post-arrest period. It enjoins upon the officer, arresting an accused and effecting recovery of a narcotic drug or psychotropic substance from his possession, to inform his superior officers of the actions taken by him. Compliance of this provision is meant to serve a dual purpose. On the one hand it affords an element of authenticity to the action taken by him in the cause of preventing commission of offences against the NDPS Act. The consciousness of compliance of this section puts, in a sense, a sort of check on the arbitrary exercise of his powers FIR No.443/2015 State Vs. Noor Amir Page No. 38/46 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.03.02 15:13:30 -0300 of arrest and seizure by him under the Act and creates a sense of responsibility in him to act in accordance with relevant provisions of law so as not to be undermined in the estimation of his superior officers with regard to the discharge of his duties as a responsible officer. On the other hand the communication of the information apprises the superior officers of the position of offences against the NDPS Act and also of the steps taken and compliance of the relevant rules made by their subordinates in the administration of the said Act. If the officer has acted as a vigilant and duty conscious officer in the pre-arrest-stage of the proceedings and his evidence discloses satisfactory compliance of the mandatory provisions relating to that stage of proceedings and inspires confidence in Court, non-compliance or compliance with some irregularity of certain provisions relating to post-arrest period would not be fatal to the prosecution case as that would be a case of an offence already committed and concluded. The purpose of compliance of S. 57 is to afford further reliability to the action already taken by the subordinate, officer. In that sense of the matter compliance of S. 57 is not mandatory but for that reason its importance in the scheme of the Act cannot be minimised (see State of Punjab v. Balbir Singh)"
48.PW-7 SI Ranjan Kumar deposed that accused was arrested vide Ex. PW2/A. He further submitted that on 16.05.2015, he had seized the contraband items vide seizure memo already Exhibited as Ex PW5/A. Thereafter, he prepared the report u/s 57 of NDPS Act and handed over the same to SHO. The witness proved the said report as Ex.PW7/B.
49. It was further established on record from the testimony of PW-16 that the intimation of arrest of the accused was sent to ACP Lajpat Nagar vide diary no 1333/SHO/LN dated 25.05.2015 vide letter already Ex.PW10/C. Further, the information of recovery of contraband items from the accused was also sent to the ACP vide diary no 1252/SHO/LN dated 16.05.2015 vide Ex.PW10/B. The DD entries regarding sending of FIR No.443/2015 State Vs. Noor Amir Page No. 39/46 Digitally signed ARUL by ARUL VARMA VARMA 2023.03.02 Date:
15:13:45 -0300 information u/s 57 NDPS Act has also been proved vide Ex. PW10/D.
50.The receipt of the above reports in the office of the ACP has been proved by the Reader to the ACP ie PW-10 SI Kailash Chand and by PW-11 ACP Deepak Yadav.PW-10 SI Kailash Chand proved the factum of production of the above said reports before the ACP concerned. The ACP Deepak Yadav was examined as PW-11 and he categorically deposed that on 13.05.2015, he received the report u/s 57 NDPS Act duly forwarded by the SHO. He proved the said report already Ex. PW10/A. The ACP also proved the receipt of information u/s 57 of NDPS Act qua arrest of the accused as Ex.PW10/C and qua recovery of contraband item from him as Ex. PW10/B. E. COMPLIANCE OF SECTION 50 NDPS ACT
51. Ld. Counsel for accused vehemently contended that PW-12 Idris, the translator, had categorically deposed that he did not know about the content of Ex. PW3/C i.e notice u/s 50 NDPS Act. Ld. Counsel for accused invited the Court's attention to the following parts of his examination in chief, who deposed as thus:
"Vol. I do not know about the contents of documents Ex. PW3/A and PW3/C . Vol. At that time when I had signed these documents I was told by the Police officials that these documents are related to translation done by him with accused at the behest of IO."
52.It was further contended by Ld. Counsel that the translator PW-12 Idris completely denied giving of any statement to Police on 12.05.2015 i.e. FIR No.443/2015 State Vs. Noor Amir Page No. 40/46 ARUL Digitally signed by ARUL VARMA VARMA 15:14:29 -0300 Date: 2023.03.02 Mark A. it was thus denied that the witness had stated to police in statement mark A, that he had informed the accused in his language qua service of notice u/s 50 of NDPS Act.
53.Ld. Counsel further contended that witness also denied the suggestion that accused had signed on the carbon copy of notice u/s 50 of NDPS Act and its reply at point X, after the same was explained to him in his presence. Ld. Counsel for accused placed reliance on Denis Jauregul Mendizabal Crl (LP) no 241/2022, to substantiate his contention.
54.Further, Ld. Counsel for accused invited the Court's attention to the following statements made by PW-3 SI Mahesh Chand in his examination in chief, who deposed as thus:
"Accused had given it in writing that he did not want to get himself searched in presence of any Magistrate or Gazetted Officer. I had recorded his version in the Hindi script through the translator Edrish. His reply to notice is Ex.PW3/C-1, bearing my signatures at point-A."
55.Ld. Counsel further contended that IO had no obtained any certificate or affidavit from translator, affirming the truth, veracity and correctness of translation done by him after having conversation with accused.
56. Per contra, Ld. Addl PP for State contended that every time such capsules came out from the body through stools or otherwise and the same were found containing heroine, was revealed later on. Therefore, in this case, the compliance of Section 50 and 42 NDPS Act are not required because there is no prior information of having such contraband FIR No.443/2015 State Vs. Noor Amir Page No. 41/46 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.03.02 15:14:40 -0300 substance with the accused. Ld. Addl PP for State further contended that although in the present case after making the first recovery and when the accused regained his consciousness, the notice u/s 50 NDPS Act was served upon him and he was apprised about his legal rights in respect of his search for the recovery of contraband substance, if any, from his body. But the accused did not avail his rights and he had given his refusal in writing. It was also contended that even non compliance of Section 50 NDPS Act may not vitiate the trial if it do not cause prejudice to the accused as held in case Bahadur Singh Vs State of Haryana (2010) 4 SCC 445. As regards, the compliance of Section 50 of NDPS Act the same is not attracted in case of chance recovery as held in case State of Punjab Vs Balbir Singh AIR 1994 SC 1872; AIR 2004 SC 2491.
57.To adjudicate this issue, it would be profitable to refer to Section 50 of the Act, which reads as thus:
"Section 50: Conditions under which search of persons shall be conducted:
(1)When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate (2)If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1)"
58.The safeguards mentioned in Section 50 are intended to serve a dual purpose- to protect a person against false accusation and frivolous FIR No.443/2015 State Vs. Noor Amir Page No. 42/46 ARUL Digitally signed by ARUL VARMA VARMA 15:15:03 -0300 Date: 2023.03.02 charges as also to lend credibility to the search and seizure conducted by an empowered officer.
59.In the present case, as rightly pointed out by Ld. Addl PP for the State, it is not a case where "search" of an accused was being conducted. It is a peculiar case where contraband substance was being secreted from the bowel of the accused. The information received was dynamic in nature and so were the recoveries. Thus, compliance of Section 50 of NDPS Act was not a sine qua non for the prosecution to prove its case. Rather, safeguards were taken by the police in ensuring that the accused was aware of his rights as not only one but two translators joined the investigation, and who explained to the accused all the proceedings therein.
F. DEPOSIT OF EXHIBITS IN FSL FOR FORENSIC EXAMINATION AND FSL REPORT.
60. The sanctity of chain of custody qua deposit of Exhibits in FSL from the malkahan was also duly proved by the prosecution. PW8 Ct Sunil on the directions of the MHC(M) had taken the sealed pullandas from the malkhana to deposit the same with the FSL Rohini. He further deposed that the seals of CMO AIIMS Hospital and RK were affixed from the pullandas. He further deposed that the FSL form and sample seal were also taken by him to FSL vide separate RC no 52/21/15.
FIR No.443/2015 State Vs. Noor Amir Page No. 43/46 Digitally signed by ARUL ARUL VARMA Date: VARMA 2023.03.02 15:15:17 - 0300
61. The FSL report Ex. PW 13/C was proved by PW13 Dr Shubhra Kumar Paul, Senior Scientific Officer, FSL Rohini. The said witness deposed that on 01.06.2015, 5 sealed parcels having four seals of CMO AIIMS Hospital New Delhi and one seal of RK on each parcel alongwith forwarding letter were received through PW8 Ct Sunil. The copy of the forwarding letter was proved as Ex.PW13/A. The said witness also deposed that the seals on all the parcels were found intact and tallied with the forwarding letter, and the same were marked to her for examination, which she conducted from 06.07.2015 to 29.09.2015. The witness unequivocally stated that on chemical, TLC and GCMS examinations, the Exhibits were found to contain diacetylmorphine, 6 monoacetylmorphine and caffeine. The witness had also deposed that she had examined around 300 NDPS cases and 2000 cases in general and had deposed in various courts of law as an expert witness. Nothing could be elicited to dispute her competence or expertise. Thus, the factum of contraband item being heroine was cogently established by this witness. G. FAILURE TO EXPLAIN CIRCUMSTANCES APPEARING AGAINST THE ACCUSED
62.It was contended by the State that the accused did not avail the opportunity to explain the circumstances appearing in the evidence against him, and only put forth a mere bare denial or replied to the Digitally signed by ARUL ARUL Date:
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FIR No.443/2015 State Vs. Noor Amir Page No. 44/46 accusations by merely stating that 'it is incorrect'. He could not explain recovery of contraband items from him. The accused did not even put forth a plea of alibi. He only averred in his defence that he had come to India for getting a Kidney Stone operation and that he was taken to a room in Lajpat Nagar by a taxi driver whereafter the police took him to a hospital, where he became unconscious. This plea gets belied by the conspicuous absence of any medical treatment papers which could have been filed by the accused. The accused did not divulge the name or details of the doctor who, he had to consult. He even imputed his unconsciousness due to the act of the doctor, a highly unsubstantiated imputation. The fact of the matter is that contraband substance were recovered from the body of the accused for which the accused had no substantial justification. There is a presumption u/s 54 of the NDPS Act which lays down that in trials under the NDPS Act, it may be presumed that the accused has committed an offence, unless and until the contrary is proved. The expression' unless and until the contrary is proved', clearly imposes the burden of proving that possession of prohibited substance is legal, or that he was not so found in possession, is on the accused himself. In this case, neither the presumption could be rebutted, nor could the accused explain the circumstances appearing in evidence against him.
CONCLUSION
63.Ergo, in view of the reasons hereinabove discussed in extenso, this Court FIR No.443/2015 State Vs. Noor Amir Page No. 45/46 ARUL Digitally signed by ARUL VARMA VARMA 15:16:18 -0300 Date: 2023.03.02 is of the considered view that the prosecution has proved beyond reasonable doubt that the accused was found in possession of 292 grams of Heroine/Diacetylmorphine, Delhi and is therefore convicted for the offence punishable under Section 21 (c)/61 of NDPS Act.
64.Further, in consonance with the provisions of Section 40 of the NDPS Act, the name and place of business and residence of the convict, nature of the contravention, the factum of the accused being convicted, be published in two English and two Vernacular newspapers and in news websites. Accordingly, copy of this order be sent to the DCP, Crime Branch to do the needful.
65. Put for arguments on quantum of sentence on 20.03.2023 Digitally Announced in the open court on 02.03.2023 signed by ARUL ARUL VARMA Date:
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(ARUL VARMA) ASJ-04 & Spl. Judge (NDPS) South-East District Saket Courts, New Delhi FIR No.443/2015 State Vs. Noor Amir Page No. 46/46