Delhi District Court
Unknown vs . Kumar Gupta on 21 December, 2019
IN THE COURT OF SH. SUESH KUMAR GUPTA
ADDITIONAL SESSIONS JUDGE04
& SPECIAL JUDGE (NDPS) SOUTHEAST: SAKET COURTS:
NEW DELHI
SC 292 of 2018
State Digitally
signed by
SURESH
SURESH KUMAR
Vs. KUMAR GUPTA
Date:
GUPTA 2019.12.24
1 Abdul Salam Rehmani 15:22:58
+0530
S/o Abdul Rehman,
R/o District07, Braman,
Heart, Afghanistan
Local R/o House No. E11,
Ground Floor, Kasturba Niketan Complex,
Lajpat NagarII, New Delhi
2 Abdul Hakim Junaidi
S/o Nazar,
R/o District07, Braman,
Heart, Afghanistan
Local R/o House No. E11,
Ground Floor, Kasturba Niketan Complex,
Lajpat NagarII, New Delhi
FIR No. 108/2018
PS : Lajpat Nagar
U/s. 21 NDPS Act
Instituted on : 04.07.2018
Argued on : 19.12.2019
Decided on : 21.12.2019
SC No. 292/18 State v. Abdul Salam Rehmani & Anr 1/44
JUDGMENT
1 The facts of the case are like this. On 10.4.2018 SI Subhash Chand was posted at PS, Lajpat Nagar, New Delhi. On that day at 12 night he was in the office. A secret informer came to the PS and gave a secret information to him that two Afghani persons, residing somewhere in the area of Kasturba Niketan, have brought heroine/cocaine in capsules in their stomach. They will go tonight in between 1am - 2am to supply near Railway Colony, Jal Vihar Road, who can be apprehended on immediate raid. He inquired from the secret informer and satisfied with information and thereafter produced him before SHO at around 12.15am who inquired from the secret informer and confirmed the information. He was directed to conduct the immediate raid. DD No.3A was recorded in compliance to section 42 NDPS Act and produced before SHO who directed him to constitute a raiding party. He constituted a raiding party comprising of Ct. Vishal, Ct. Vineet and Ct. Shambhu and took electronic weighing SC No. 292/18 State v. Abdul Salam Rehmani & Anr 2/44 scale, field testing kit and IO bag with him. They left the PS at 12.45 am in a private vehicle by making DD No. 5A. They were in civil dress. They have taken the route via K Block, Jal Vihar Road Round About. At round about Vinoba Puri, they have asked the auto and taxi drivers and 4 5 passersby to join the raiding party but none of them agreed and left the spot without disclosing their names and addresses. The notice was not served upon them due to paucity of time. They reached at 1am near Railway Colony Gate, Jal Vihar Road, Lajpat Nagar where 45 passersby were asked to join them in the raiding but none of them agreed and left the spot without disclosing their names and addresses. No notice was served upon them due to paucity of time. The members of raiding team were briefed and told that the persons, who will come to supply the drugs, should be apprehended when he put his hand on the head. The raiding team members took their position along the road side so that all the members are visible to one another. They started waiting for those persons. SC No. 292/18 State v. Abdul Salam Rehmani & Anr 3/44 2 At 1.45am two persons aged 3540 years with white colour bags in their right hands were found coming on foot from Kasturba Niketan side towards Jal Vihar Terminal. The secret informer gave a signal that they are the same persons for whom they are waiting. SI gave a signal to the other raiding team members by putting his hand on his head. Those persons were apprehended by the raiding team members. SI Subhash Chand produced his I. Card and disclosed his identity to them. Those persons disclosed their identity. One of them disclosed his name as Abdul Salam and other disclosed his name as Abdul Hakim Junaidi. Both of them were understanding Hindi and also speaking little Hindi. SI told the meaning of Gazetted Officer and Magistrate to both of them and told them that they have the secret information that they are in possession of contraband. They were made to understand about the information in Hindi, English as well as by means of gestures. They were told about their legal rights.
SC No. 292/18 State v. Abdul Salam Rehmani & Anr 4/44 3 Notices u/s 50 of NDPS Act were separately served upon the accused. The contents of the notices were read over to them in Hindi. The gestures were also made to bring the contents of notices to their knowledge. One copy of the notice u/s 50 NDPS Act was given to each accused. Both of them have put their signatures on the carbon copies. They were made to understand that they can give their search in the presence of Gazetted Officer or Magistrate and they can take the search of police party prior to their search. Both of them told that they have been apprehended by the police as such they do not want their search in the presence of Gazetted Officer or Magistrate in order to collect further evidence. The passersby gathered on the spot. 57 passersby were asked to join them but none of them agreed to join them and left the spot without disclosing their names and addresses.
4 The white bag in the right hand of accused Abdul Salam Rehmani was taken and checked. 60 white colour SC No. 292/18 State v. Abdul Salam Rehmani & Anr 5/44 polythene capsule wrapped in toffee type pattern were found. The capsules were opened and brown colour powder was taken out. The powder was tested with filed testing kit and found to be heroine. The heroine was weighted on electronic weighing machine which was 475 grams. Two samples of 5 grams each were taken out in the polythene and kept in plastic dibis and pullanda was prepared and given mark A & B. The remaining 465 grams heroine was put on polythene and kept in a plastic dibi and given mark C. The 60 wrappers were kept in a plastic dibi and pullanda was prepared and given mark D. Form FSL was filled. The pullandas were sealed with seal SC and taken into possession vide separate recovery memo. Same seal was affixed on FSL form.
5 The white colour bag in the right band of accused Abdul Hakim Junaidi was taken and checked. 60 blue colour capsule in a polythene wrap in toffee type pattern were found. The capsules were opened and white colour powder was taken SC No. 292/18 State v. Abdul Salam Rehmani & Anr 6/44 out. The powder was tested with filed testing kit and found to be methaqulone. The methaqulone was weighted on electronic weighing machine which was 425 grams. Two samples of 5 grams each were taken out in the polythene and kept in plastic dibis and pullanda was prepared and given mark E & F. The remaining 415 grams methaqulone was put on polythene and kept in a plastic dibi and given mark G. The 60 wrappers were kept in a plastic dibi and pullanda was prepared and given mark H. Form FSL was filled. The pullandas were sealed with seal SC and taken into possession vide separate recovery memo. Same seal was affixed on FSL form.
6 The seal after use was handed over to Ct. Vineet. Tehrir was prepared. The tehrir alongwith sealed case property, FSL Forms and copies of seizure memos was given to Ct. Vineet with the direction to give tehrir to DO for registration of FIR and sealed pullandas, FSL Forms and seizure memos to SHO, PS, Lajpat Nagar. FIR was registered. Further investigation was SC No. 292/18 State v. Abdul Salam Rehmani & Anr 7/44 handed over to SI Amit Pratap who reached on the spot. 7 SI Subhash Chand, Ct. Vishal and Ct. Shambh alongwith accused met SI Amit. SI Subhash has handed over the accused to SI Amit. The copy of seizure memo and copies of notices u/s 50 NDPS Act were also handed over to SI Amit. Site plan was prepared at the instance of SI Subhash whose statement u/s 161 CrPC was recorded. The accused were interrogated. Their disclosure statements were recorded. They were arrested. Their personal search and arrest memos were prepared. The information of their arrest was given to Afghan Embassy and FRRO. Report u/s 57 NDP Act was prepared and sent to ACP. The statement of witnesses u/s 161 Cr.PC were recorded. The case property was sent to FSL for expert opinion. The charge sheet was prepared and filed in the Court for trial. 8 FSL reports were filed later on in the Court.
9 The accused have put their appearance. Copy of charge sheet and documents were supplied to them. After hearing SC No. 292/18 State v. Abdul Salam Rehmani & Anr 8/44 charge u/s 21 (C) of NDPS Act was framed against both them to which they pleaded not guilty and claimed trial. 10 The prosecution has examined 12 witnesses. Prosecution evidence was closed. Accused were examined u/s 313 Cr.PC. Their defence is of denial simplicitor. However, no defence evidence has been led.
11 PW2 SI Subhash, PW4 Ct. Sambhu Dayal and PW11 Ct. Vineet are the members of raiding party. PW 12 SI Amit is the second Investigating Officer of the case. PW9 Dr. Subhash Chandra is a witness from FSL. PW6 Inspt. Pankaj Malik was SHO at that time. PW10 Bijender Singh was ACP on the day of incident.
12 PW2 SI Subhash is the first IO of the case. He stated that on 10.4.2018 he was posted at PS, Lajpat Nagar, New Delhi. At 4.15 pm one secret informer came to the PS and gave a secret information to him that two Afghani persons have come in Lajpat Nagar who have kept capsules of cocaine in their stomach. SC No. 292/18 State v. Abdul Salam Rehmani & Anr 9/44 The secret informer did not tell the time and place of supply the cocaine. He informed these facts to SHO who directed him to develop the information. HC Rajesh was directed to get issue a field testing kit from Narcotics Branch, R.K. Puram, New Delhi. DD No.22A Ex. PW2/A was recorded. At 12 night, he was in the PS. A secret informer came to the PS and informed him that two Afghani Nationals, staying somewhere in Kasturba Niketan Area, have brought narcotics in capsules in their stomach and they will supply the same in between 1am - 2am to someone near Railway Colony, Jal Vihar Road, who can be apprehended on immediate raid. He produced the secret informer before SHO at around 12.15am who inquired from the secret informer and verified the information. He was directed by SHO to conduct the immediate raid. DD No.3A Ex. PW2/B was recorded in compliance to section 42 NDPS Act and produced before SHO who directed him to constitute a raiding party. He constituted a raiding party comprising of Ct. Vishal, PW11 Ct. Vineet and PW4 Ct. Shambhu and took SC No. 292/18 State v. Abdul Salam Rehmani & Anr 10/44 electronic weighing machine, field testing kit and IO bag with him. They left the PS at 12.45 am in a private vehicle by making DD No. 5A Ex. PW2/C. They were in civil dress. They have gone via K Block, Jal Vihar Road round about, Vinoba Puri and reached near Railway Colony, Jal Vihar. They have asked the auto and taxi drivers and 4 5 passersby at Round About Vinobha Puri to join the raiding party but none of them agreed and left the spot without disclosing their names and addresses. The notice was not served upon them due to paucity of time. They reached at 1.30am near Railway Colony Gate, Jal Vihar Road, Lajpat Nagar. The members of raiding team were briefed by him and told that the persons will be apprehended on his signal. The raiding team members took their positions. He was with secret informer.
13 At 1.45am two persons aged 3540 years with white colour bags in their right hands were found coming on foot from Kasturba Niketan side towards Jal Vihar Terminal. The secret informer gave a signal that they are the same persons for whom SC No. 292/18 State v. Abdul Salam Rehmani & Anr 11/44 they are waiting. He gave a signal to the other raiding team members by putting his hand on his head. The secret informer left the spot. Those persons were apprehended by them. He told them that they are police officers and showed his I. Card. Those persons disclosed their identity. One of them disclosed his name as Abdul Salam and other disclosed his name as Abdul Hakim Junaidi. They told that they are Afghani Nationals and understand and speak little bit Hindi. He told them the meaning of Gazetted Officer and Magistrate and told them that they have the secret information that they are in possession of contraband/narcotics. 14 They were informed that they have legal right to get their search in the presence of Gazetted Officer/Magistrate and they have legal right to take the search of police party prior to their search. Both of them told that they have been apprehended by the police and as such they do not want their search in the presence of Gazetted Officer or Magistrate.
15 Notices u/s 50 of NDPS Act Ex. PW2/D and E were SC No. 292/18 State v. Abdul Salam Rehmani & Anr 12/44 separately served upon the accused. They have given their receiving of the notice on the carbon copy. He has written on the notice whatever was told to him by the accused. 16 He took cursory search of accused Abdul Salam Rehmani who was carrying one white colour polythene bag in his right hand. The bag was opened which contained 60 capsules wrapped in a white colour polythene in a toffee like pattern. The capsules were opened and brown colour powder was taken out. The powder was tested with filed testing kit and found to be heroine. The heroine was weighed on electronic weighing machine which was 475 grams. Two samples of 5 grams each were taken out in the polythenes and kept in plastic containers and pullandas were prepared and given Mark A & B. The remaining 465 grams of heroine was put on polythene and kept in a plastic container and given Mark C. The 60 wrappers were kept in a plastic container and pullanda was prepared and given Mark D. Form FSL was filled. All of them were converted into SC No. 292/18 State v. Abdul Salam Rehmani & Anr 13/44 pullandas with the help of doctors tape and sealed with seal SC and taken into possession vide recovery memo PW2/F. Same seal was affixed on FSL form.
17 He has taken the cursory search of accused Abdul Hakim Junaidi who was carrying the white colour polythene bag in his right hand. The said bag was checked. 60 blue colour capsule in a polythene wrapped in a toffee like pattern were found. The capsules were opened and white colour powder was taken out. The powder was tested with filed testing kit and found to be methaqulone. The methaqulone was weighted on electronic weighing machine which was 425 grams. Two samples of 5 grams each were taken out in the polythenes and kept in plastic containers and pullanda was prepared and given Mark E & F. The remaining 415 grams of methaqulone was put on polythene and kept in a plastic container and given Mark G. The 60 wrappers were kept in a plastic dibi and pullanda was prepared and given Mark mark H. Form FSL was filled. All of them were converted SC No. 292/18 State v. Abdul Salam Rehmani & Anr 14/44 into pullandas and pullandas were sealed with seal SC and taken into possession vide recovery memo Ex. PW2/G. Same seal was affixed on FSL form.
18 The seal after use was handed over to Ct. Vineet. Tehrir Ex. PW2/H was prepared. The tehrir alongwith sealed case property, FSL Form and copy of seizure memo was given to Ct. Vineet with the direction to give tehrir to DO for registration of FIR and sealed pullandas, FSL Forms and seizure memos be handed over to SHO, PS, Lajpat Nagar. Constable has left in a private vehicle. After registration of FIR further investigation was handed over to SI Amit Pratap who reached on the spot. Both the accused were handed over to SI Amit. Ct. Vineet reached on the spot with copy of FIR and rukka. Site plan was prepared at the instance. He has identified the accused. His statement was recorded. He has identified the case property i.e. heroine (including samples drawn from the heroine) Ex.P1, P2, P5 and methaqulone including samples Ex. P3, P4, P7 recovered from SC No. 292/18 State v. Abdul Salam Rehmani & Anr 15/44 the possession of accused Abdul Hakim Zunedi. The empty wrappers are Ex. P6 and P8 respectively. During cross examination he stated that he does not remember the registration number of the car used by them. He admitted that no independent public witness was joined throughout the proceedings i.e. till recovery. He admitted that he did not produce the accused before any gazetted officer after the alleged recovery of contraband. He did not prepare any memo for returning the seal by Ct. Vineet to him. The seizure memos and notices are under his handwriting. The notices were written in Hindi Language. He admitted that accused cannot write and read Hindi. The suggestion is denied that all the memos and papers were prepared in the PS and recovery is planted on the accused.
19 PW4 Ct. Shimbhu Dayal is the member of the raiding team. He has corroborated the version of PW2 and identified the accused and the case property i.e. heroine Ex. P1, P2, P5 and P6 recovered from the possession of accused Abdul Salam Rehmani SC No. 292/18 State v. Abdul Salam Rehmani & Anr 16/44 as well as Ex. P3, P4, P7 and P8 i.e. methaqulone alongwith wrappers recovered from the possession of accused Abdul Hakim Junaidi. During crossexamination he stated that his statement was recorded by SI Amit Pratap in the after noon at PS. Secret informer did not meet SI Subhash in his presence. He does not remember the registration number of swift car by which they have gone to the spot. He does not know who is owner of the car. The car was outside the PS. The car was driven by Ct. Vishal. The secret informer was with them. The accused came from Kasturba Niketan side. The accused were apprehended on the directions of SI Subhash. First of all, notice u/s 50 NDP Act were prepared. They have left the spot at 12 noon and reached in PS at 12.30pm. SI Amit came by his own vehicle. Ct. Vineet came back at 9.45am. The seal after use was handed over to Ct. Vineet qua which no separate memo was prepared in his presence. Contraband was weighed by SI Subhash. Public persons have gathered on the spot but they did not agree to join the SC No. 292/18 State v. Abdul Salam Rehmani & Anr 17/44 proceedings. Those persons did not disclose their names and address due to which notice was not given. Seizure memos and notices were prepared prior to sending of rukka to PS. SHO did not come to the spot. The suggestion is denied that nothing was recovered from possession of accused or no paper was prepared on the spot or that he is deposing falsely at the instance of IO/SHO.
20 PW11 Ct. Vineet is another member of the raiding team. He has also corroborated the version of PW1. Ex. PA and PB are the original notices which were recovered from personal search of the accused. He has identified the case property and accused. During crossexamination he stated that he stated that SI Amit has recorded his statement at PS. He was asked by SI Subhash to join the proceedings at about 12.1512.30am in the PS and they left the PS after 1520 minutes in a private vehicle i.e. swift car. The secret informer was with them who did not give information to SI Subhash in his presence. He took the rukka at SC No. 292/18 State v. Abdul Salam Rehmani & Anr 18/44 8am and came back at around 9.3010am from PS. He has left the spot with rukka in swift car of Ct. Vishal. He has handed over 8 pullandas, 2 FSL forms and copies of seizure memos to SHO. Notices u/s 50 NDPS Act were served upon the accused one by one. They have offered their search prior to the search of accused. No public person has joined between 1am till 12 noon. SI Amit was on the spot when came back to spot with copy of FIR and rukka. The accused persons understand and speak little Hindi. Accused do not know how to write Hindi. The reply of the accused was written by SI Subhash on their direction. He admitted that spot is populated area and people commute from that area. Fards and FSL forms were prepared after preparing notices. The secret informer has left after pointing out towards the accused. He does not know the make of weighing machine. SI Subhash has got issued the weighing machine, field testing kit and IO kit from malkhana in his presence. He does not know the time when he returned back the seal to SI Subhash. Documents SC No. 292/18 State v. Abdul Salam Rehmani & Anr 19/44 were prepared under street light. Ct. Vishal drove the car from PS to the spot. The street light poles are on both sides of the road. Site plan Ex. PW11/DA was not prepared in his presence and park is shown at point A,B,C,D in red ink. The suggestion is denied that he did not visit the spot and participated in the proceedings or nothing was recovered from possession of the accused and recovery is planted.
21 PW5 Lady HC Asha Negi stated that on 11.04.2018 she was duty officer from 8am to 4pm. At around 8.25 am, Ct. Vineet has produced one rukka sent by SI Subhash to her for registration of FIR upon which she got recorded FIR Ex. PW5/A through computer operator. She has made an endorsement Ex. PW5/B on the rukka. The certificate U/s 65B of Indian Evidence Act Ex. PW5/C was issued. The investigation was handed over to SI Amit Pratap as per the directions of SHO. 22 PW6 Insp. Pankaj Malik stated that on 11.11.2018 he was posted as SHO, PS, Lajpat Nagar. On that day, Ct. Vineet SC No. 292/18 State v. Abdul Salam Rehmani & Anr 20/44 came to his office and handed over 8 sealed pullandas sealed with seal SC and mark A to H, two FSL forms and 2 carbon copies of seizure memos. He has counter sealed all the pullandas with seal PM. The seal of PM was affixed on FSL forms. FIR number was taken from DO and put on all the pullandas and documents. He has signed the pullandas and FSL forms. He has gone to malkhana and handed over pullandas and documents to MHC/M HC Rajinder who deposited the same and made an entry at SN 1734/2018 in register no. 19. He has recorded DD no. 11, copy of which is Ex. PW6/A. The case property has remained intact as long as it remained in his possession. During crossexamination he stated that he did not sign register no. 19. He did not mention the time of deposit of case property in register no. 19. He has kept the seal with himself after counter sealing pullandas and FSL form. The suggestion is denied that DD No. 11 is ante dated or that he did not receive the pullandas or did not counter sealed the pullandas and FSL forms.
SC No. 292/18 State v. Abdul Salam Rehmani & Anr 21/44 23 PW8 SI Kailash Chand stated that he was SO/Reader to ACP, Lajpat Nagar. On 11.4.2018 information u/s 57 NDPS Act was received from SI Amit through SHO, PS, Lajpat Nagar regarding which entry was made at SN 2 of register, the copy of which is Ex.PW8/A. He has produced the report before ACP who signed it at point A after going through the same. The report in original is Ex. PW8/B. 24 PW10 Brijender Singh, ACP stated that on 11.4.2018 he was ACP, Lajpat Nagar. His reader SI Kailash Chand has received a report u/s 57 NDPS Act which was forwarded by SHO, PS, Lajpat Nagar. The entry made in the diary register. The said information was placed before him. He has gone through the same and signed at point A. 25 PW1 Ct. Om Prakash stated that on 23.4.2018 he has taken 4 sealed pullandas with two forwarding letters from MHC/M vide RC No. 47 and 48/21/18 Ex. PW1/A and B. He went to FSL, Rohini and deposited the same and obtained receipt SC No. 292/18 State v. Abdul Salam Rehmani & Anr 22/44 Ex. PW1/C and D. He has handed over the receipts to MHC/M. The case property has remained intact as long as it remained in his possession.
26 PW3 HC Rajender stated that on 11.4.2018 he was MHC/M at PS, Lajpat Nagar, New Delhi. On that day SHO has handed over 8 sealed pullandas duly sealed with seal SC & PM, seizure memos and two FSL forms. He has deposited the case property in the Malkhana as per directions of SHO regarding which entry no. 1734 was made in register no. 19, copy of which is Ex. PW3/A. The case property has remained intact as long as it remained in his custody.
27 On 23.4.2018, 4 pullandas mark A, B and E, F were sent to FSL, Rohini through Ct. Om Prakash vide RC No. 47 and 48/21/18. Receipts were handed over to him by Ct. Om Prakash after the deposit of sealed pullandas in FSL, Rohini. He has brought register no. 21 containing the said receipts. Photocopy of said receipt is Ex. PW3/B. During crossexamination he stated SC No. 292/18 State v. Abdul Salam Rehmani & Anr 23/44 that Ex. PW3/A is in his handwriting. He does not remember the time of deposit of case property in malkhana. SHO himself came to deposit case property in malkhana. He did not take signature of SHO on register no. 19.
28 PW9 Dr. Subhash Chandra, Sr. Scientific Officer, FSL stated that on 23.04.2018 four sealed parcels duly sealed with seal SC and PM alongwith forwarding letter were received in the office through Ct. Om Prakash. The seals on the parcels were found intact and tallied with seals on the forwarding letter. The parcels were assigned to him for chemical examination. The parcels are marked A, B, E and F. He has opened parcel mark A and it contained brownish colour powder alongwith granules weighing approximate 6gms with zip locked polythene. He has opened parcel mark B and it contained brownish colour powder weighing 5.27gms with zip locked polythene. He has opened parcel mark E and it contained white colour powder weighing approximate 5.55gms with zip locked polythene. He has opened SC No. 292/18 State v. Abdul Salam Rehmani & Anr 24/44 parcel mark F and it contained white colour powder weighing approximate 5gms with zip locked polythene.
29 He has conducted examination on the exhibits. On chemical, TLC, GC, GCMS examination, exhibits A, B E and F were found to contain Diacetylmorphine 28.7% and 35.5%, 34.4% and 32.8% respectively. All the exhibits also contain 6 monoacetylmorphine, acytylcodeine, coffeine and dextromethorphane. He has prepared his report Ex. PW9/B. The remnants were sealed with seal SC FSL Delhi. The forwarding letter Ex. PW9/B is of Director FSL.
30 PW12 SI Amit Pratap Singh stated that on 11.04.2018 he was posted at PS Lajpat Nagar. On that day the investigation of the case was entrusted to him. He reached near railway colony gate, Jal Vihar Road, Lajpat Nagar where SI Subhash, Ct. Shimbhu Dayal and Ct. Vishal Malik met him. The accused were apprehended by SI Subhash. The facts were narrated to him by first IO. Ct. Vineet reached on the spot and handed over copy of SC No. 292/18 State v. Abdul Salam Rehmani & Anr 25/44 FIR and rukka to him. SI Subhash produced the accused before him. He has prepared site plan Ex. PW11/DA at the instance of SI Subhash. The accused were interrogated. He arrested the accused and prepared arrest memo and personal search memos Ex. PW4/A to D. Their disclosure statements Ex. PW4/E and 4/F were prepared. Original copy of notice U/s 50 NDPS Act, passport, visa, currency notes and mobile phones were recovered from the personal search of the accused. They came back to the police station. The accused were got medically examined. He has prepared a report U/s 57 NDPS Act Ex. PW8/B and forwarded the same to SHO for onward transmission to ACP Lajpat Nagar. The visa and passport were found genuine. On 23.04.2018 samples were sent to FSL through Ct. Om Prakash. He has recorded the statements U/s 161 CrPC of the witnesses including MHC(M). He has inquired from the owner of the premises where accused were staying on rent. Result from FSL was taken. Charge sheet was prepared. He has identified the SC No. 292/18 State v. Abdul Salam Rehmani & Anr 26/44 notices U/s 50 NDPS Act Ex. PA and PB. He has identified the accused. During cross examination he stated that he has reached on the spot at about 8.45 am and stayed there till 12.45 pm. Ct. Vineet reached at around 9.15 am. SI Subhash has handed over original seizure memos etc. to him. The suggestion is denied that he did not visit the spot and documents were prepared at the PS. 31 PW7 Smt. Kamlesh stated that she resides on the first floor of E11, Kasturba Niketan Complex, Lajpat NagarII. The ground floor has been rented out. On 07.04.2018 she has given one room on rent to accused Abdul Salam Rehmani and took the photocopy of his passport and visa for police verification. Accused told her at that time that his family will come on the next day. On the next day she was not at home but some other person came to reside with accused in the said room. She cannot identify that person. After two days the police has come to her house and told that some 'saman' has been recovered from the accused. The police have taken the keys of her bed on the ground floor SC No. 292/18 State v. Abdul Salam Rehmani & Anr 27/44 presuming that it belongs to the accused. The bed was checked but nothing incriminating was recovered. The photocopies of the documents submitted to police for verification are Ex. PW7/A. She was declared hostile and cross examined by the prosecution. During cross examination she stated that on 09.04.2018 accused Abdul Hakim Junaidi has come to reside with the other accused. She has identified both the accused. The police had told that drugs were recovered from the accused.
32 Ld. Adl. PP for the State submitted that the testimony of PW2, 4 and 11 clearly shows that accused were apprehended by them and they were found in possession of contraband. He further submitted that accused understand Hindi and their reply was written by first IO as told by them to him. He further submitted that they have fully supported the case of prosecution. He further submitted that testimony of police officials can be relied upon in order to base the conviction of the accused. He further submitted that testimony of police officials is consistent. SC No. 292/18 State v. Abdul Salam Rehmani & Anr 28/44 He further submitted that accused have failed to point out anything in the cross examination of police officials which goes in his favour.
33 Ld. Defence Counsel submitted that there is no compliance of Section 42 and 50 NDPS Act. He further submitted that no independent witness was associated though they were easily available qua which no explanation has come on record. He further submitted that the testimony of police officials cannot be relied upon as they have failed to associate independent witnesses despite their availability under their nose. He further submitted that testimony of police officials is full of contradictions which go to the root of the prosecution case. 34 Heard and perused the record.
35 PW2 SI Subhash is the first investigating officer of the case. PW4 Ct. Shimbhu Dayal and PW11 Ct. Vineet were with him in the raiding team.
36 PW7 is landlady of premises No. E11, Kasturba SC No. 292/18 State v. Abdul Salam Rehmani & Anr 29/44 Niketan Complex, Lajpat Nagar, Delhi. Her testimony clearly shows that accused Abdul Salam Rehmani has taken the room on rent from her and thereafter accused Abdul Hakim Zunedi has come to stay with him. Her testimony shows that the accused were residing at Kasturba Niketan.
37 The testimony of PW2 shows that on 10.04.2018 he was present at PS, Lajpat Nagar and received an information at 4.15pm that two persons from Afghanistan have come in the area of Lajpat Nagar who have kept capsules of cocaine in their stomach for the supply of same. He has informed SHO who directed him to develop the information. HC Rajeev was directed to get issue field testing kit from Narcotics Branch R.K. Puram. DD No. 22A Ex.PW2/A was recorded. His testimony to this effect has gone unrebutted.
38 His testimony further shows that on 10.04.2018 at 12 night he was at PS where secret informer informed him that two Afghanis, staying somewhere in Kasturba Niketan, have brought SC No. 292/18 State v. Abdul Salam Rehmani & Anr 30/44 narcotics substance in the form of capsules in their stomach and they will come for supply in between 12 am to someone at Jal Vihar Road near Railway Colony who can be apprehended on immediate raid. This fact was brought to the notice of SHO at 12.15 am on 11.04.2018 who verified the information and directed him to conduct the raid. DD No.3A Ex. PW2/B was recorded. His testimony to this effect has gone unrebutted. A raiding team including PW4 Ct. Shimbhu Dayal, PW11 Ct. Vineet and Ct. Vishal was constituted by PW2. This fact is duly corroborated by PW4 and 11.
39 His testimony further shows that they have left the PS at 12.45 am in a private vehicle alongwith IO bag, electronic weighing machine and field testing kit. DD No.5A Ex. PW2/C was recorded. This part of the testimony is duly corroborated by PW4 and 11.
40 The testimony of PW2, 4 & 11 shows that they have reached on the spot via Gol Chakar, Vinoba Puri where they have SC No. 292/18 State v. Abdul Salam Rehmani & Anr 31/44 requested 45 passersby and taxi driver to join the investigation but none of them agreed and left the place without disclosing their names and addresses. It shows that effort was made by the police officials to associate the public persons but they did not come forward for the reasons best known to them. It is not the case that no effort was made to associate the public persons. 41 The testimony of PW2, 4 and 11 shows that there reached at the spot at around 1.30 am where PW2 has briefed the raiding team members. Their testimony further shows that at around 1.45am two persons aged 3540 years were found coming from Kasturba Niketan side towards Jal Vihar with white colour thailas in their hands. The testimony of PW2 shows that secret informer gave him the signal that they are the persons and thereafter he gave signal to PW4 & 11 by putting his hand over his head and those persons were apprehended who disclosed their names as Abdul Salam Rehmani and Abdul Hakim Zunedi. The testimony of PWs to this effect is consistent without any SC No. 292/18 State v. Abdul Salam Rehmani & Anr 32/44 contradiction on record.
42 The testimony of PW2 shows that accused understand and speak little bit Hindi. PW4 & 11 have corroborated this fact. Nothing has come in the cross examination of any of the witnesses that accused do not understand or speak Hindi. Ld. Amicus Curiae has not brought to the notice of the court at any stage of the trial that the accused do not understand or speak even little bit of Hindi.
43 The testimony of PW2 further shows that the accused were informed that they have legal right to have searched before the Gazetted Officer/Magistrate and the meaning of gazetted officer/Magistrate was disclosed to them. They have also disclosed that they have legal right to take search of police officials before their search but both of them told that they do not want search before Magistrate/Gazetted Officer as they have been apprehended. Notices u/s 50 NDPS Ex. W2/D and E were given to both the accused separately and their reply were written on the SC No. 292/18 State v. Abdul Salam Rehmani & Anr 33/44 notices. PW4 and 11 have corroborated this fact. There is nothing in the cross examination that of PW2, 4 and 11 that all these facts were not disclosed to the accused. The accused have failed to bring any material on record that all these facts were not brought to their notice.
44 The bag in the hand of accused Abdul Salam Rehmani was checked and opened and it contained 60 capsules wrapped in a white colour polythene in a toffee like pattern. The capsules were opened and brown colour powder was taken out which was tested with filed testing kit and found to be heroine. The heroine was weighted on electronic weighing machine which was 475 grams. Two samples of 5 grams each were taken out in the polythene and kept in plastic containers and pullandas were prepared and given Mark A & B. The remaining 465 grams of heroine was put on polythene and kept in a plastic container and given Mark C. The 60 wrappers were kept in a plastic container and pullanda was prepared and given Mark D. Form FSL was SC No. 292/18 State v. Abdul Salam Rehmani & Anr 34/44 filled. All of them were converted into pullandas with the help of doctors tape and sealed with seal SC and taken into possession vide recovery memo PW2/F. Same seal was affixed on FSL form. PW4 and 11 have deposed in a similar fashion. Likewise is the testimony of PW4 and 11.
45 The testimony of PW2 further shows that he has taken the cursory search of accused Abdul Hakim Junaidi who was carrying the white colour polythene bag in his right hand. The said bag was checked. 60 blue colour capsule in a polythene wrapped in a toffee like pattern were found. The capsules were opened and white colour powder was taken out. The powder was tested with filed testing kit and found to be methaqulone. The methaqulone was weighted on electronic weighing machine which was 425 grams. Two samples of 5 grams each were taken out in the polythenes and kept in plastic containers and pullanda was prepared and given Mark E & F. The remaining 415 grams of methaqulone was put on polythene and kept in a plastic container SC No. 292/18 State v. Abdul Salam Rehmani & Anr 35/44 and given Mark G. The 60 wrappers were kept in a plastic dibi and pullanda was prepared and given Mark mark H. Form FSL was filled. All of them were converted into pullandas and pullandas were sealed with seal SC and taken into possession vide recovery memo Ex. PW2/G. Same seal was affixed on FSL form. Likewise is the testimony of PW4 & 11.
46 There is nothing in the cross examination of PW2, 4 and 11 that the accused were not apprehended while carrying the white colour thailas in their right hands. There is nothing in their cross examination that accused were not apprehended on the spot. There is nothing in the cross examination that the contraband was not recovered from their possession. The PWs are consistent on this point without any material contradiction on record. The recovery of contraband stands proved from the testimony of PW2, 4 and 11.
47 PW2 has prepared rukka Ex. PW2/H and sent to PS through PW11 for registration of FIR alongwith case property, SC No. 292/18 State v. Abdul Salam Rehmani & Anr 36/44 copies of seizure memos and form FSL.
48 The testimony of PW11 shows that he has taken the rukka and the case property including the seizure memos and FSL forms to PS and handed over the rukka to the Duty Officer PW5 who has recorded FIR Ex. PW5/A and case property and documents were handed over to PW6 Insp. Pankaj Malik. 49 The testimony of PW6 shows that PW11 came to his office and handed over 8 sealed pullandas sealed with seal SC which were mark A to H, 2 FSL forms and 2 carbon copies of seizure memos. He has affixed his seals PM on the pullandas and FSL forms and took FIR number from PW5 and put the same on the pullandas and documents. He has deposited the pullandas in the malkhana with PW3 HC Rajinder who has made an entry at Sl. No. 1734of register no. 19 copy of which is Ex PW3/A. Nothing has come in the crossexamination of PW6 that PW11 has not handed over the sealed pullandas, copies of seizure memos and FSL forms to him. There is no reason for him to SC No. 292/18 State v. Abdul Salam Rehmani & Anr 37/44 depose falsely.PW3 has duly corroborated the version of PW6. 50 The further investigation was handed over to PW12 SI Amit who reached on the spot and carried out the further investigation. PW2 has produced the accused and documents of the case to him who has prepared site Plan Ex. PW11/DA at the instance of PW2.
51 The link evidence is complete. The testimony of PW3 shows that on 23.4.22018 he has sent the exhibits of this case mark A, B, E and F to FSL, Rohini through PW1 Ct. Om Prakash vide RC No. 47 and 48/21/18 Ex. PW1/A and B. The case property was not tampered as long as it remained in his possession. There is nothing in his crossexamination that case property was not deposited with him or he did not send the exhibits through PW1 Ct. Om Prakash to FSL.
52 PW1 Ct. Om Prakash has corroborated the version of PW3 and further added that he has deposited the exhibits on the same day with FSL and receipts Ex. PWC and D were obtained. SC No. 292/18 State v. Abdul Salam Rehmani & Anr 38/44 The case property was not tampered as long as it remained in his possession. His testimony on the material point has gone unrebutted.
53 The testimony of PW9 shows that on 23.4.2018, four sealed parcels sealed with seal SC and PM were received in the office from Ct. Om Prakash and seals were tallied with the seal on the forwarding letter. PW9 has examined the exhibits by way of chemical, TLC, GC and GCMS examination. All the exhibits i.e. exhibits A, B, E and F contain Diacetylmorphine 28.7% and 35.5%, 34.4% and 32.8% respectively. All the exhibits also contain 6monoacetylmorphine, acytylcodeine, coffeine and dextromethorphane. The exhibits contained contraband. Nothing has come in the crossexamination of PW9 that exhibits duly sealed with seal SC and PM were not received or seals were not intact or they were not tallied with the sample seals. There is nothing in the crossexamination that he has not properly carried out the examination of contraband material. His testimony on SC No. 292/18 State v. Abdul Salam Rehmani & Anr 39/44 material points has gone unrebutted.
54 The testimony of the members of the raiding party has been duly corroborated by FSL report shows that on the opening and examination of the sealed pullandas, the same contained contraband. The FSL report duly proved the case of the prosecution that recovered substance from the accused is contraband.
55 There is compliance of Section 57 NDPS Act. The testimony of PW12 shows that he has prepared the report Ex.PW 8/B U/s 57 NDPS Act and forwarded to SHO. The testimony of PW10 shows that report U/s 57 NDPS Act Ex.PW8/B was received from SI Amit which was duly forwarded by SHO. There is due compliance of Section 50 NDPS Act. 56 The argument of Ld. Defence Counsel that section 50 NDPS Act has not been complied with is without any merits. 57 Section 50 of the Act affords protection to a person in the cases relating to the personal search. The strict compliance of SC No. 292/18 State v. Abdul Salam Rehmani & Anr 40/44 the various requirements are to be complied with in order to prove a circumstance against the person.
58 Section 50 of the Act does not apply to the search of a vehicle or a container or a bag or premises. Support is drawn from Kalema Tumba vs. State of Maharashtra (1999) 8 SCC 257, State of Punjab vs. Baldev Singh (1999) 6 SCC 172 and Gurbaksh Singh vs. State of Haryana (2001) 3 SCC 28 and Crl. Appeal No. 156566 of 2019 titled as State of Punjab vs. Baljinder Singh & Anr. decided on 15.10.2019 by Hon'ble Apex Court.
59 In the instant case the personal search of the accused did not result into recovery of any contraband. The recovery from the personal search would not have been relied upon for the want of the compliance of Section 50 NDPS Act. The recovery was effected from one polythene bag carried by each accused in their right hands. The contraband was found from the bags. The recovery has been proved. Section 50 NDPS Act does not apply SC No. 292/18 State v. Abdul Salam Rehmani & Anr 41/44 to the search of a bag or any other article carried by the accused. There was noncompliance of Section 50 of the Act so far as personal search is concerned but accused cannot draw any benefit from this so as to negate the effect of recovery from the polythene bags in their hands.
60 The argument that Section 42 of the Act has not complied with is without any merits. An officer empowered U/s 42 (1) of the Act is obliged to reduce to writing the information received by him only when an offence under the Act has been committed in any building, conveyance or an enclosed place or when a document or an article is concealed in a building, conveyance or enclosed space. Compliance of Section 42 of the Act, including recording of the information by the empowered officer, is not mandatory when an offence punishable under the act was not committed in a building, conveyance or an enclosed place. The accused have been apprehended while coming from Kasturba Niketan side towards Jal Vihar and thereafter detained SC No. 292/18 State v. Abdul Salam Rehmani & Anr 42/44 by the police party. The place of arrest is not a building, conveyance or an enclosed place. The place of occurrence is accessible to public and comes within the ambit of public place in the explanation to Section 43 of the Act. Section 42 has no application.
61 There are minor contradictions in the testimonies of PWs with respect to the issuance of electronic weighing machine, field kit as well as with respect to the time taken to complete the proceedings. These contradictions are bound to occur in the testimonies of witnesses with the lapse of time. These contradictions are inconsequential and minor in nature which do not put any dent on the material aspect of the case. 62 All the witnesses have been cross examined at length by the Ld. defence Counsel but failed to put any dent in their testimony. They have remained unshaken with regard to the apprehension of the accused with contraband. The testimony of the police officials is trust worthy and convincing. Their SC No. 292/18 State v. Abdul Salam Rehmani & Anr 43/44 testimony coupled with FSL report brings the case of prosecution within the four corners of commission of the offence by the accused. Hence, the testimony of PWs is relied upon. 63 Keeping in view the entire evidence on record, I have no hesitation to hold that prosecution has duly proved the case against the accused beyond shadow of reasonable doubt. Hence, both the accused are held guilty u/s 21 (C) NDPS Act and according convicted.
64 Let the file be put on quantum of sentence.
Announced in the open court on 21st December, 2019 (SURESH KUMAR GUPTA) ASJ04 & Spl. Judge (NDPS) SouthEast District Saket Courts, New Delhi SC No. 292/18 State v. Abdul Salam Rehmani & Anr 44/44