Delhi District Court
State vs 1. Mohd. Wasim Raja (In Jc) on 23 April, 2015
IN THE COURT OF SH. SANJAY SHARMA : SPECIAL JUDGE (NDPS) / ADDL. SESSIONS JUDGE, (NORTH-EAST): KARKARDOOMA COURTS, DELHI SC No. : 02/09 FIR No. : RC SIB 2008 E 2009 PS : CBI E.O.U.V. U/Sec. : 21 r/w Section 8 of the NDPS Act Case ID : 02402R0056142009 State Versus 1. Mohd. Wasim Raja (in JC) S/o Sh. Shahid Ahmed R/o B-365, First Floor, Sabri Manzil, Gali No. 16, Subhash Mohalla, North Ghonda, Delhi-110053 Date of Institution : 26.02.2009 Date of reserving order : 09.03.2015 Date of Judgment : 23.04.2015 JUDGMENT
The prosecution case:-
1. On 10.11.2008 at about 9.00 a.m., PW-2 Insp. Vijay Kumar Shukla received a source information that the accused Mohd. Wasim Raja was indulging in the illicit trade of Narcotic Drugs i.e. heroin through the premises No. B-365, First Floor, Sabri Manzil, Gali No. 16, Subhash Mohalla, North Ghonda, Delhi-110053 (Hereinafter 'the said premises') and huge quantity of heroin was available in one of the rooms at the first floor of the said premises which was in exclusive possession of the accused Mohd. Wasim Raja for sale to prospective purchasers and in case, a search was conducted, huge quantity of heroin could be recovered.
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2. The said secret information was reduced into writing vide Source Information Report Ex.PW2/1 and submitted to PW-10 Sh. Anurag, Superintendent of Police, CBI, EOU-V. The said secret information was registered in EOU-V Branch and PW-2 Insp. Vijay Kumar Shukla was authorised to verify the information and take appropriate action vide Ex.PW2/2.
3. PW-2 Insp. Vijay Kumar Shukla constituted a raiding team comprising of himself, PW-7 Insp. Neelam Singh, PW-11 Insp. J.R. Katiyar, Ct. Mam Chand Sharma, Ct. Nishar Ahmed, Ct. Rakam Singh, Ct. (Drivers) Jai Singh, Phool Singh and Pan Singh Bisht. PW-6 Dy. S.P. Sh. Basil Kerketta, CBI/EOU-VI was deputed by Sh. Anurag, Superintendent of Police, CBI/EOU-V to oversee the search operation. Presence of two independent witnesses namely PW-1 Sh. Bhrigu Das, Account Officer and PW-9 Sh. Nanak Lal, Daftari-cum-Peon was secured from NBCC Ltd., NBCC Bhawan, Ispat Bhawan, Lodhi Road, New Delhi vide letter dated 10.11.2008 Ex.PW2/3.
4. On 11.11.2008 at about 4.30 a.m., PW-2 Insp. Vijay Kumar Shukla and the members of the raiding team including the said two independent witnesses assembled in EOU-V Branch of CBI at CGO Complex, Lodhi Road, New Delhi. He briefed them about the secret information.
5. PW-1 Sh. Bhrigu Das and PW-9 Sh. Nanak Lal conducted personal search of the team members and three vehicles of CBI i.e. Bolero No. DL 3C AY 5244, Bolero No. DL 3C AY 5245 and Gypsy No. DL 2C C 3443.
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6. PW-1 Sh. Bhrigu Das and PW-9 Sh. Nanak Lal did not find anything incriminating in the personal search of the team members and search of the said vehicles except stationery items and Narcotic Drug Detection Kit.
7. On 11.11.2008 at about 5.00 a.m., PW-2 Insp. Vijay Kumar Shukla alongwith the members of the raiding team and two independent witnesses proceeded from CBI office to the place of information in the said three vehicles.
8. On 11.11.2008 at about 6.00 a.m., PW-2 Insp. Vijay Kumar Shukla alongwith team reached at the place of information. The source was already present at the spot who indicated the room of the accused Mohd. Wasim Raja at the first floor of the said premises and also confirmed the availability of huge stock of heroin in his bedroom.
9. PW-2 Insp. Vijay Kumar Shukla deployed the team members and the independent witnesses at strategic points around the said premises. He instructed the members of the raiding team to wait till the main door of the ground floor of the said premises was opened.
10. On 11.11.2008 at about 7.00 a.m., the main door of the said premises was opened by someone from inside. PW-2 Insp. Vijay Kumar Shukla with team members and independent witnesses entered into the said premises and reached at the room of the accused Mohd. Wasim Raja on the first floor of the premises. The door of the room was already open and the accused Mohd. Wasim Raja was present there.
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11. PW-2 Insp. Vijay Kumar Shukla entered into the room alongwith the CBI team and independent witnesses. He disclosed the identity of the CBI team and independent witnesses to the accused Mohd. Wasim Raja and also the purpose of their visit. On hearing this, the accused Mohd.
Wasim Raja became nervous. The accused Mohd. Wasim Raja disclosed his name and parentage and that the entire first floor of the said premises including the bedroom was in his exclusive possession where he was staying with his newly wed wife who was at that time at her native place, and his father Shahid Ahmed was residing on the ground floor and his brother Mohd. Asif was residing at the second floor.
12. PW-2 Insp. Vijay Kumar Shukla called Sh. Shahid Ahmed and Sh. Mohd. Asif to join the search proceedings but they refused on the pretext that they had no concern with the illegal activities of accused. During the proceedings, neighbours had collected outside the said premises. He requested them to join the search proceedings but none of them was willing to become a witness and left the spot without disclosing their names and addresses despite warning.
13. PW-2 Insp. Vijay Kumar Shukla disclosed the secret information to the accused Mohd. Wasim Raja that he had specific information that he had concealed huge quantity of heroin in one of his rooms at the first floor of the said premises which were in his exclusive possession or in his person in order to deliver to the prospective purchasers.
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14. PW-2 Insp. Vijay Kumar Shukla informed the accused Mohd. Wasim Raja that apart from the search of the rooms in his exclusive possession, he wanted to conduct his personal search. He informed the accused Mohd. Wasim Raja that it was his legal right that his personal search may be conducted in the presence of any competent Gazetted Officer or the nearest Magistrate and if he desired, such Gazetted Officer or the nearest Magistrate could be arranged. He informed the accused Mohd. Wasim Raja that Sh. Basil Kerketta, Deputy Superintendent of Police was a competent officer and he was present on the spot and if he desired, his personal search and search of his articles may be conducted in his presence.
15. The accused Mohd. Wasim Raja declined the offer to be searched in the presence of any other competent Gazetted Officer or the nearest Magistrate. He opted for his personal search before PW-6 Dy. S.P. Basil Kerketta.
16. PW-2 Insp. Vijay Kumar Shukla served a notice under section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the NDPS Act') Ex.PW1/B in this regard. He explained the contents of the said notice to the accused Mohd. Wasim Raja in his vernacular. The accused Mohd. Wasim Raja opted to be searched in the presence of Sh. Basil Kerketta in his hand writing at point C on the notice Ex.PW1/B. The response of the accused Mohd. Wasim Raja was also noted by PW-6 Dy. S.P. Basil Kerketta in his handwriting at point E on the original notice Ex.PW1/B. FIR No. RC SIB 2008 E 2009 State Vs. Wasim Raja Page No. 5 of 60
17. Thereafter, PW-2 Insp. Vijay Kumar Shukla alongwith team members conducted search of the bedroom of the accused Mohd. Wasim Raja in the presence of PW-1 Sh. Bhrigu Das and PW-9 Sh. Nanak Lal. He recovered a big transparent polythene packet containing seven (7) transparent polythene packets having off-white crystallised powder which was concealed in a special cavity made in the floor of the wooden cupboard in the bedroom of the accused Mohd. Wasim Raja. The accused Mohd. Wasim Raja stated that the said off- white crystallised powder was heroin and he had brought it from Punjab in order to sell it to prospective purchasers.
18. PW-2 Insp. Vijay Kumar Shukla had drawn a small quantity of the said powder from each of the said seven (7) transparent polythene packets and tested it with the help of Field Testing Kit. The recovered powder tested positive for heroin as it gave dark purple colour. He weighed all the seven (7) transparent polythene packets collectively. It was found to be 6.600 kg. (6 kilogram and 600 gram).
19. PW-2 Insp. Vijay Kumar Shukla drawn two representative samples of 20 gram each from the said seven (7) polythene packets and kept them into two separate polythene packets which were put into two separate brown envelopes and sealed them with CBI brass seal having impressions 'CBI/VKS/01'. The said sample parcels were marked as A-1 and A-2 respectively and signed by the members of the team and independent witnesses, and the accused Mohd. Wasim Raja.
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20. The remaining quantity of heroin was retained in the said seven (7) transparent polythene packets and in the same big transparent polythene packet which was converted into a cloth parcel and sealed with the above seal and marked as 'A'. The cloth parcel was signed by the CBI team, independent witnesses and the accused Mohd. Wasim Raja. Specimen of CBI brass seal were taken on three separate sheets with sealing wax and on three separate sheets with ink which are Ex.PW1/E and Ex.PW1/F respectively. A test memo Ex.PW1/D was prepared in triplicate containing the details of the samples, the facsimile of the brass seal. It was signed by the CBI team, independent witnesses and the accused Mohd. Wasim Raja.
21. Thereafter, remaining portion of the first floor of the said premises was searched and certain incriminating documents and cash amount of Rs.1,50,000/- in denomination of Rs.1,000 X 100 and Rs.500 X 100. The said documents and the cash amount were seized vide seizure memo Ex.PW1/C.
22. CBI team in the presence of PW-1 Sh. Bhrigu Das and PW-9 Sh. Nanak Lal conducted search of the rooms on the ground floor and second floor of the said premises thoroughly. However, no incriminating material was recovered.
23. PW-2 Insp. Vijay Kumar Shukla prepared three separate rough site plans in respect of the ground floor, first floor and second floor of the said premises which are Ex.PW1/I to Ex.PW1/K respectively. The CBI brass seal was handed over to PW-1 Sh. Bhrigu Das after its use vide receipt Ex.PW1/G. FIR No. RC SIB 2008 E 2009 State Vs. Wasim Raja Page No. 7 of 60
24. PW-2 Insp. Vijay Kumar Shukla informed the grounds of arrest to the accused Mohd. Wasim Raja vide memo Ex.PW2/5. He arrested the accused Mohd. Wasim Raja at about 5.00 p.m. on 11.11.2008 vide personal search-cum-arrest memo Ex.PW1/H. In the personal search of the accused, a cash amount of Rs. 5,000/-, two mobile phones, three SIM cards, PAN card, Driving Licence, Debit cards etc were recovered.
25. A recovery memo Ex.PW1/A was prepared and it was read over to the accused, independent witnesses and the CBI team. All of them signed on each page of the recovery memo Ex.PW1/A. A copy of the recovery memo was given to the accused. PW-2 Insp. Vijay Kumar Shukla concluded the search proceedings at about 5.30 p.m. and proceeded from the spot alongwith the CBI team and the accused.
26. PW-2 Insp. Vijay Kumar Shukla deposited the sample parcels A1 and A2, parcel A, cash amount of Rs. 1,50,000/- and other articles recovered in the personal search of the accused in the malkhana of CBI on 11.11.2008.
27. PW-2 Insp. Vijay Kumar Shukla submitted a special report Ex.PW2/6 to the Superintendent of Police, CBI, EOU-V, New Delhi on 11.11.2008. Accordingly, a regular case vide No. RC SIB 2008 E 0009 was registered under section 21 read with section 8 of the NDPS Act at CBI, EOU-V on 11.11.2008 and further investigation of the case was assigned to PW-12 Insp. B. Balasubramanian, CBI, EOU-V, New Delhi vide FIR Ex.PW10/A FIR No. RC SIB 2008 E 2009 State Vs. Wasim Raja Page No. 8 of 60
28. During investigation, PW-12 Insp. V. Balasubramanian recorded statement of the members of the CBI team, independent witnesses and other witnesses conversant with the facts of the case.
29. On 11.11.2008 at 07.30 p.m., PW-2 Insp. Vijay Kumar Shukla deposited the parcel mark A, sample parcels mark A-1 and A-2 in the malkhana vide entry no. 157/08 to 159/08 in the Seized Property Register and a copy thereof is Ex.PW3/E. Other articles mentioned in the seizure memo and personal search-cum-arrest memo were deposited in malkhana, EOU-V Branch vide entry no. 141/08 to 156/08 and a copy thereof is Ex.PW4/A.
30. On 19.11.2008, PW-3 ASI Ramkanwar, In-charge, malkhana deposited sample parcel mark A-1 alongwith a letter written by PW-10 Sh. Anurag, Supdt. of Police, CBI/EOU-V Ex.PW3/A from malkhana, EOU-V Branch to Central Revenues Control Laboratory (CRCL) for determination of narcotic drug and purity percentage in sample parcel vide Acknowledgement Receipt Ex.PW3/B. He made an entry in the Seized Property Register in this regard. A copy thereof is Ex.PW3/C.
31. PW-8 Sh. Bhuwan Ram, Asst. Chemical Examiner, Central Revenues Control Laboratory received the sample parcel mark A and issued the receipt Ex.PW3/B. He examined the sample parcel mark A. He prepared the CRCL report Ex.PW8/A. FIR No. RC SIB 2008 E 2009 State Vs. Wasim Raja Page No. 9 of 60
32. CRCL Report Ex.PW8/A is as under:-
"Date of receipt of sample in the laboratory- 19.11.2008 PACKING DETAILS Received a brown coloured paper packet marked as A-1 in sealed and intact condition. The sample packet was found sealed with eight red lac seals. Impression of each seal affixed on sample packet tallied with the facsimile of seal as given on test memo.
At the time of taking out sample from strong room for analysis, sample packet marked as A-1 was found in sealed and intact condition. Impression of each seal affixed on sample packet tallied with the facsimile of seal as given on test memo.
REPORT: (Report is admissible under section 293 Cr.P.C. 1973) The sample is in the form of off white coarse powder and lumps. On the basis of chemical and chromatographic examinations, it is concluded that the sample under reference answers positive test for Diacetylmorphine (Heroin).
The content of Diacetylmorphine (Heroin) and Gross weight of remnant sample, returned herewith are as under-
Lab. No. Marked as % of DAM (Heroin) Gross weight of remnant sample along with auto pressed plastic pouch 979 (N) A-1 81.8 (eight one 18.9 gm deci eight) Facsimile of seal "CENTRAL REVENUES CONTROL LABORATORY GOVT OF INDIA 2" affixed on sealed remnant samples is as under-
Sd/- Sd/-
(B. RAM) (S.C. MATHUR)
ACE CE-II
Analysed by Supervised by
Asst. Chemical Examiner Chemical Examiner
Central Revenues Control Laboratory Govt. of India
Government of India Ministry of Finance
Delhi-17. New Delhi-17.
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The prosecution evidence:-
33. The prosecution examined 12 witnesses as under:-
The witnesses Description of the witnesses PW-1 Sh. Bhrigu Das Public witness PW-2 Insp. Vijay Kumar Shukla In-Charge, Recovery Team PW-3 ASI Ramkanwar In-Charge, malkhana, EOU-V, CBI PW-4 SI Naval Singh Looked after malkhana on 11.11.08 PW-5 Sh. Inder Pratap Singh PA to SP Anurag, EOU-V, CBI PW-6 Dy.S.P. B. Karketta Recovery witness PW-7 Insp. Neelam Recovery witness PW-8 Sh. Bhuwan Ram Asstt. Chemical Examiner, CRCL PW-9 Sh. Nanak Lal Public Witness PW-10 Sh. Anurag Suptd. of Police, EOU-V, CBI PW-11 Insp. J.R. Katiyar Recovery witness PW-12 Insp. V. Balasubramanian Investigating Officer The plea of the accused:-
34. Incriminating circumstances emerging in the prosecution evidence were put to the accused Wasim Raja under section 313 of the Code of Criminal Procedure, 1973. He stated that the public witnesses Bhrigu Das and Nanak Lal are not Independent witnesses and they are stock witnesses of the CBI. He denied that any raid was conducted at his premises on 11.11.2008 at 7.00 a.m. by the CBI team. He stated that no notice was served upon him and no heroin was recovered from his possession. He stated that writing work was done in the police station. His signatures were obtained on blank papers.
He stated that the contraband was planted upon him. He pleaded innocence and claimed false implication.
FIR No. RC SIB 2008 E 2009 State Vs. Wasim Raja Page No. 11 of 60 The defence evidence:-
35. In defence evidence, the accused Wasim Raja examined three witnesses namely Smt. Rukhsar (DW-1), Mohd. Asif (DW-2) and Shahid Ahmed (DW-3).
36. DW-1 Smt. Rukhsar is the wife of the accused Wasim Raja. She was married to the accused Wasim Raja on 19.10.2008. She was residing in her in-laws house at H. No. 365, Gali No. 16, Subhash Mohalla, North Ghonda, Delhi-53.
According to her, on 11.11.2008, she was present in her house with her husband Wasim Raja. She stated that at about 4.00 p.m.-5.00 p.m., some persons forcibly entered in her house and conducted search of the house. The said persons stated themselves as police officials. They had taken the accused Wasim Raja with them on the pretext of some investigation. She stated that on the next day, she alongwith her father-in-law and brother-in-law visited the office of CBI where she came to know that her husband was implicated in this case.
37. DW-1 Smt. Rukhsar was cross-examined by the CBI. In her cross-examination, she stated that she was residing with her husband Wasim Raja on the first floor of the house and other family members were residing on the ground floor and the second floor. She stated that she had not lodged any written complaint to any higher authority.
38. DW-2 Mohd. Asif is the brother of the accused Wasim Raja. He was residing at second floor of H. No. B-365, Gali No. 16, Subhash Vihar, North Ghonda, Delhi.
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39. According to DW-2 Mohd. Asif, on 11.11.2008, he was present in his house. He stated that at about 4.00 p.m.-4.30 p.m., 7-8 persons entered into their house and started searching all the floors of his house. The said persons stated that they were officials from CBI. After conducting search, they had taken his brother Wasim Raja with them on the pretext of some enquiry. He stated that on the next date, he alongwith his father and wife of the accused Wasim Raja visited the office of CBI where they came to know that his brother was implicated in a case of drugs.
40. DW-2 Mohd. Asif was cross-examined by the CBI. In his cross-examination, he stated that he was not present in the room of the accused Wasim Raja at that time. He stated that the wife and brother-in-law and other brothers of the accused Wasim Raja was present in his room at that time. He denied the suggestion of the CBI that any raid was conducted on 11.11.2008 at about 7.00 a.m. in their house and any recovery was effected from the accused Wasim Raja. He stated that he has not lodged any written complaint regarding the incident to any higher authority or senior police officers.
41. DW-3 Shahid Ahmed is the father of the accused Wasim Raja. Accused Wasim Raja was married on 19.10.2008. The accused Wasim Raja was residing on the first floor of his house alongwith his wife. In the other rooms on the first floor, his two unmarried sons namely Mohd. Siraj and Mohd. Gulbej were residing. He was residing on the ground floor of the house.
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42. According to DW-3 Shahid Ahmed, the accused Wasim Raja was running a shop of Audio-video cassettes. On 10.11.2008, the accused Wasim Raja had gone to the house of his in-laws. At about 10.30 p.m., two-three persons stating themselves from CBI came to his house to take search of the house. They showed their identity cards and conducted search of the entire house. They could not recover any incriminating material from his house. They left his house. On the next day, he informed the accused Wasim Raja about the raid of the CBI officers. He came back to his house at about 2.00 p.m.
43. DW-3 Shahid Ahmed further stated that on 11.11.2008 at about 4.00 p.m., the CBI officials visited their house and conducted search of the entire house but they could not recover any incriminating material. They had taken the accused Wasim Raja with them. They had also taken cash amount of Rs. 1,50,000/- from his almirah. He stated that they reached at CBI office at Lodhi Road on the next day where they were informed that the accused Wasim Raja could be released on the order of the Court and that the accused Wasim Raja was implicated in this case.
44. In his cross-examination, DW-3 Shahid Ahmed denied that any raid was conducted on 11.11.2008 at 7.00 a.m. at his house. He stated that his son Mohd. Asif was present at the time of the proceedings and he refused to participate therein. He stated that he has not made any complaint to any authority against detention of his son.
FIR No. RC SIB 2008 E 2009 State Vs. Wasim Raja Page No. 14 of 60 Final arguments:-
45. I have heard arguments of Sh. U.C. Saxena, Special PP for the CBI and Sh. Jitender Sethi, Advocate for the accused Wasim Raja. I have also perused the written arguments submitted by the CBI and the defence. I have also perused the case law relied by the parties to the lis.
The prosecution arguments:-
46. Sh. U.C. Saxena, Special PP for the CBI submitted that the prosecution has proved its case beyond reasonable doubt that the accused Wasim Raja was found in exclusive possession of 6.6 kilogram heroin. He submitted that the prosecution has proved compliance to the provision of section 42 of the NDPS Act. PW-2 Insp. Vijay Kumar Shukla reduced the secret information into writing vide Ex.PW2/1 and submitted it to his immediate superior official on 10.11.2008. The secret information was perused by the senior officers of CBI. He submitted that the prosecution has proved that the secret information was reduced into writing and forwarded to immediate superior official within 72 hours. He submitted that PW-10 S.P. Anurag is an empowered Gazetted Officer of the CBI under section 41 (2) of the NDPS Act vide Gazette Notification No. 288/30/85-ABD.II dated 25th September, 1986 published by the Government of India, Ministry of Personnel, P.S. and Pensions (Department of Personnel and Training). PW-2 Insp. Vijay Kumar Shukla was authorised by PW-10 S.P. Anurag to conduct the raid vide Ex.PW2/2.
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47. Sh. U.C. Saxena, Special PP for the CBI submitted that the prosecution has proved compliance to the provision under section 50 of the NDPS Act. He submitted that the prosecution has proved that the accused was informed that it was his legal right that if he desired, his personal search can be conducted in the presence of any Gazetted Officer or Magistrate or Dy. S.P. Basil Karketta, Supervising Officer. He submitted that the accused after understanding his legal right declined the offer to be searched in the presence of any Gazetted Officer or Magistrate. He submitted that the accused opted to be searched in the presence of Dy. S.P. Basil Karketta. He submitted that the accused was served with a written notice Ex.PW1/B in this regard. He submitted that the accused Wasim Raja recorded his consent on the notice Ex.PW1/B in his hand writing. In the alternative, he submitted that the provision of section 50 of the NDPS Act is not applicable to the present case as the recovery was not effected from the personal search of the accused Wasim Raja. He submitted that the recovery of heroin was effected from a special cavity in the cupboard of the bedroom on the first floor of the house which was in his exclusive use and possession.
48. Sh. U.C. Saxena, Special PP for the CBI further submitted that prosecution witnesses including the members of the CBI team and public witnesses have proved that heroin contained in 7 transparent polythene bags kept in a polythene bag was recovered from the possession of the accused.
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49. Sh. U.C. Saxena, Special PP for the CBI further submitted that the recovered heroin was properly preserved at the spot and test memos in triplicate were prepared. He submitted that the prosecution has proved that two samples of 20 grams heroin were drawn, preserved, sealed and signed by all the witnesses and the accused on the spot. He submitted that the remaining heroin was kept in the same manner and converted into a cloth parcel which was properly sealed and preserved at the spot. He submitted that the sample parcels and the main consignment remained intact till it was produced before the Court. He submitted that sample parcel mark A1 was sent to CRCL Laboratory and it tested positive for heroin and the purity percentage of the heroin is 81.8% as per CRCL report Ex.PW8/A.
50. Sh. U.C. Saxena, Special PP for the CBI further submitted that PW-2 Insp. Vijay Kumar Shukla submitted special report Ex.PW2/6 as required under section 57 of the NDPS Act regarding seizure and arrest of the accused Wasim Raja within 48 hours. He submitted that PW-5 Inder Pratap Singh, PA to SP Anurag proved that the special report Ex.PW2/6 was received on 10.11.2008 vide Ex.PW5/A. He submitted that PW-10 SP Anurag has proved that the special report Ex.PW2/6 was received by him and on the basis of the said report, he ordered for registration of FIR Ex.PW10/A. He submitted that prosecution has proved that the provision of section 55 and 57 of the NDPS Act were complied.
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51. Sh. U.C. Saxena, Special PP for the CBI further submitted that PW-1 Bhrigu Das and PW-9 Nanak Lal are the independent witnesses and they have supported the search, seizure and arrest of the accused Wasim Raja. He submitted that CRCL Report Ex.PW8/A and acknowledgement receipt Ex.PW3/B proved that the sample parcel mark A was received by the CRCL in intact condition and seals on the sample tallied with facsimile on test memo Ex.PW2/4. He submitted that the samples and the main consignment were properly preserved in the malkhana of the CBI. He submitted that the seal affixed on the parcels and test memos were handed over to PW-1 Bhrigu Das and as such, there was no possibility of any tampering. He submitted that the defence version is an after thought as no such complaint was made either to the Court or to senior officers of the CBI. He submitted that no such case was suggested to the prosecution witnesses at the time of their cross-examination. He submitted that the prosecution has been able to prove that the accused Wasim Raja was found in possession of 5.3988 kilogram heroin and as such, he is liable to be held guilty for committing offence under section 21 (c) of the NDPS Act.
Defence arguments:-
52. Sh. Jitender Sethi, Ld. defence counsel submitted that the prosecution has failed to prove its case. He submitted that prosecution has failed to prove compliance to mandatory provisions of section 42, 50, 55 and 57 of the NDPS Act.
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53. In nut-shell, the defence arguments are as under:-
(a) There was no search authorisation/warrant for conducting search of the house No. B-365, Ist Floor, Sabri Manzil, Gali No. 16, Subhash Mohalla, North Ghonda, Delhi as required under section 41 of the NDPS Act.
(b) The secret information was received on 10.11.2008 at 9.00 a.m. The raid in question was conducted on 11.11.2008 at 7.00 a.m. At that time, it was dark as stated by PW-9 Nanak Lal. The CBI had sufficient time to obtain search warrant or authorisation. Hence, there was no urgency as contemplated in section 42 (1) of the NDPS Act.
Thus, there is non-compliance of mandatory provision of section 42 of the NDPS Act. The entire search and seizure is illegal.
(c) There is no evidence that the room from where the recovery was effected was in the exclusive possession of the accused Wasim Raja. The house in question is owned by Smt. Sabri Devi, mother of the accused. Besides the accused Wasim Raja and his wife, his four brothers and three sisters are also residing in the said house. The CBI team did not record statement of any member of the family of the accused Wasim Raja that he was in exclusive possession of the particular room. PW-6 Dy.S.P. Basil Karketta stated in his testimony that the main gate of the house was knocked by some member of the raiding team and as the gate was opened, we entered into the house and all the occupants of the house immediately collected on the ground floor of the house. He deposed that the room was locked and he was not aware as to who had provided the keys. The cupboard was unlocked. It means the room in question was found locked and it was not in exclusive possession of the accused Wasim Raja. State of Punjab v.
Gurnam Kaur & Ors., 2009 (2) JCC [Narcotics] 73, para 14.
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(d) The CBI team entered into the room of the accused Wasim Raja at about 7.00 a.m. The recovery was effected at about 11.45 a.m. to 12.00 noon. It casts doubt on the genuineness and veracity of the search and seizure as it was effected after 5 hours.
(e) Disclosure statement of the accused Wasim Raja has not been placed on record. An adverse inference should be drawn for with holding this document from the Court.
(f) PW-1 Bhrigu Das has stated in his examination- in-chief about the presence of one more person in the room of the accused Wasim Raja.
(g) There are contradictions in the depositions of the members of the CBI team about the nature of the weighing machine, number of weighing machines and preparation of the cloth parcels.
(h) The procedure for preparation of samples was illegal. Basant Rai v. State, 2012 [3] JCC [Narcotics] 138, paras no. 21, 22 and 25 to 27.
(i) PW-4 SI Naval Singh has not deposed about the deposit of sample parcel mark A1 on 11.11.2008. He stated that FSL form was not deposited with him by Insp. Vijay Kumar Shukla. PW-3 ASI Ram Kanwar stated that he had taken sample parcel mark A from the malkhana on 19.11.2008 and deposited in the CRCL. PW-3 ASI Ram Kanwar stated that there was no mention that any test memo was taken by him or deposited in the office of CRCL alongwith the sample parcel in Ex.PW3/C. Major link evidence is missing in the prosecution case and the possibility of tampering cannot be ruled out. Rajan Ali v. The State (Delhi Admn.), 2000 (1) C.L.R 362, para 7.
FIR No. RC SIB 2008 E 2009 State Vs. Wasim Raja Page No. 20 of 60
(j) There is no explanation for not recording the statements of PW-1 Bhrigu Das and PW-9 Nanak Lal on 11.11.2008 on the spot. Delay in recording the statements would render the case of the prosecution doubtful. Sonu Arora v. State, 2010 [3] JCC 2354, paras 20 and 21.
(k) Samples should be deposited within 72 hours of its seizure vide notification No. 1/88 dated 15.03.1988 issued by the NCB, New Delhi. There is delay of 5 days in sending sample parcel to CRCL coupled with the fact no CRCL form was deposited in the malkhana or taken to CRCL. Jarnail Singh v. State of Punjab, 2008 [4] JCC [Narcotics] 204, paras 11 and 12.
(l) A copy of seized property register Ex.PW3/C shows that the sample parcels were marked as A-I and A-II and not A1 and A2. It shows that the sample parcels were infact tampered.
(m) The investigation of the case was biased and unfair. The person who received the secret information being the complainant could not investigate the case. It cause great prejudice to the accused. Naushad v. State of Kerala, 2000 (2) RCR (Criminal) 573, para 5.
(n) Non-compliance of section 55 of the NDPS Act. The case property was not produced before the Officer In-charge of the CBI or before the concerned Metropolitan Magistrate. Dharamveer v. The State of Haryana, 2008 [4] JCC [Narcotics] 197, para 13.
(o) Seizure memo, recovery memo and any other documents do not bear the signature of any member of the house. PW-2 Insp. Vijay Kumar Shukla did not ask any member of the family of the accused Wasim Raja to sign the said documents.
FIR No. RC SIB 2008 E 2009 State Vs. Wasim Raja Page No. 21 of 60
(p) PW-7 Insp. Neelam Singh stated that the accused Wasim Raja was wearing a pant and vest and he had just woken up. No person would be carrying documents like PAN Card, ATM Card, Driving License, Debit Card and SIM Cards while sleeping or just waking from sleep. It shows that the accused Wasim Raja was not apprehended at the time and place as alleged by the prosecution.
(q) There is no explanation as to why PW-2 Insp. Vijay Kumar Shukla did not prepare any document on the spot. It shows that the entire proceedings and documentation was done in the office of CBI and the signatures of PW-1 Bhrigu Das and PW-9 Nanak Lal were procured. There is no explanation for non-production of disclosure statement of the accused. Samadhan Dhudaka Koli v. State of Maharashtra, 2009 [1] CAR [SC] 140, para 11.
(r) Non-compliance of section 50 of the NDPS Act. The search of the accused in the presence of Dy.S.P. Basil Karketta who was the member of the raiding team. The right of the accused to be searched before any Gazetted Officer or the Magistrate cannot be taken away merely because one of the member of the search team happens to be a Gazetted Officer. Ahmed v. State of Gujarat, 2000 CAR 501 (SC) para 5. Gurjant Singh @ Janta v. State of Punjab, 2013 (13) SCALE 295. Rakesh @ Shankar v. State, Crl. A. No. 663 of 2010 decided on 08.01.2014 (Delhi High Court).
(s) There are material contradictions in the depositions of the member of the raiding team. Rajesh Kumar @ Sanjay v. State of NCT Delhi, 2014 [3] JCC [Narcotics] 156.
(t) Non-compliance of the section 57 of the NDPS Act as there is no evidence on record to show that when the special report was sent to superior officer. Mahender Kumar v. The State, Panaji, AIR 1995 Supreme Court, 1157.
FIR No. RC SIB 2008 E 2009 State Vs. Wasim Raja Page No. 22 of 60
54. Sh. U.C. Saxena, Special PP for the CBI submitted that section 41 of the NDPS Act does not provide that source information report or the search authorization should be shown to the accused. The raid was conducted at the premises of the accused Wasim Raja between the sun rise and sun set. However, the search was containing after obtaining search authorization from SP Anurag, EOU-V, CBI. Minor discrepancies in the depositions of the prosecution witnesses would not render them doubtful. The contraband was recovered from a special cavity made in the cupboard of the bedroom in the presence of the accused Wasim Raja and therefore, the prosecution has been able to prove the exclusive and conscious possession of the accused Wasim Raja. He submitted that there was no illegality in drawing of sample from the recovered contraband. He submitted that homogeneous mixture of the contents of all the 7 packets was prepared and "Representative Samples" were drawn as per the prescribed procedure with due entry in NCB-1 form. Otherwise, also as evident from the chemical analysis report of CRCL, New Delhi, percentage in the sample has been found to be above 80%. Had there been, lesser percentage in any of the 7 packets, the sample would have been diluted and percentage would have come down accordingly. Thus, sampling was done as per the prescribed procedure and forwarded to the lab for opinion as per the prescribed procedure. There is no shortcoming in the preparation of the samples.
FIR No. RC SIB 2008 E 2009 State Vs. Wasim Raja Page No. 23 of 60
55. Sh. U.C. Saxena, Special PP for the CBI further submitted that as per the provisions of section 2, sub section 3 of "The Delhi Special Police Establishment Act, 1946", the officers of CBI of and above the rank of Sub Inspector may exercise in any of the powers of the "Officer-in-charge" of a Police Station in the area in which he is for the time being and when so exercising so powers, be deemed to be an Officer-in- charge of a Police Station, discharging the function of such an officer within the limits of his station". He submitted that the Seizing Officer PW2 himself was vested with powers of Officer- in-Charge of the Police Station, he himself was acting in the capacity of Officer-in-Charge of the Police Station and therefore, it is clear that the provisions section 52 of the NDPS Act, 1985 are also duly complied with.
56. Sh. U.C. Saxena, Special PP for the CBI further submitted that PW-2 Insp. Vijay Kumar Shukla being officer-in- charge of the police station deposited the recovered contraband in the malkhana. Therefore, the provision of section 55 of the NDPS Act were duly complied with. The provisions of section 57 of the NDPS Act were also complied as PW-2 Insp. Vijay Kumar Shukla submitted the special report Ex.PW2/6 to PW-10 SP Anurag on 11.11.2008.
57. Sh. U.C. Saxena, Special PP for the CBI further submitted that minor discrepancies and contradictions would not cause dent to the prosecution case. He submitted that there is no infirmity in the case of the prosecution.
FIR No. RC SIB 2008 E 2009 State Vs. Wasim Raja Page No. 24 of 60
58. The prosecution has relied on the following judgment:-
(a) State of Rajasthan Vs. Ram Chandra, AIR 2005 SC 2221.
(b) State of Punjab Vs. Mahkhan Chand, AIR 2004 SC 3061.
(c) Manohar Lal Vs. State of Rajasthan, AIR 1996 SC 2880.
(d) State of Orissa Vs. Kanduri Sahu, AIR 2004 SC
833.
(e) Iqbal Moosa Patel Vs. State of Gujrat, AIR 2011 SC (SUPP) 470.
59. I have carefully examined the evidence, oral and documentary on record.
Point No. 1:- Improper procedure of testing of powder
60. The case of the prosecution is that a transparent polythene packet containing 7 transparent polythene packets having off-white crystallized powder inside them was recovered from the special cavity in the floor of the wooden cupboard in the bedroom of the accused Wasim Raja. Small quantity of the recovered off-white crystallized powder was drawn from each of the said 7 polythene packets and tested with the help of field testing kit which confirmed the presence of heroin in the recovered material as it gave dark purple colour.
61. PW-2 Insp. Vijay Kumar Shukla, the seizing officer deposed as under:-
"Small quantity of the recovered material collectively drawn from all the seven packets was tested with the help of Field Testing Kit which gave positive results for heroin as on testing, the colour turned to be dark purple."
FIR No. RC SIB 2008 E 2009 State Vs. Wasim Raja Page No. 25 of 60
62. PW-6 Dy.S.P. Basil Karketta, the supervising officer deposed as under:-
".....Thereafter search was conducted and from the cupboard of the bedroom of the accused, 7 packets of heroin substance in a large polythene bag were recovered.
Thereafter, we took out samples of 20 grams each from each packet the recovered substance and checked the same with the help of Field Testing Kit and it was confirmed to be heroin substance....."
63. PW-1 Bhrigu Das, the independent witness has deposed as under:-
".....Thereafter, search began and from the lower portion of cupboard, whitish powder was recovered which was kept in 7 small polythene bags which were collectively in one big transparent polythene bag. From the seven packets, small quantity of 20 grams was taken out from all the packets collectively, and tested with the help of Field Testing Kit. The recovered substance was weighed also and total weight came to be 6 kg 600 grams. The testing gave the contraband dark purple colour. I was told by CBI personnel that dark purple colour reveals a very fine quantity of heroin....."
64. In his cross-examination, PW-1 Bhrigu Das deposed as under:-
".....I had seen the field testing kit which was in a box and it was written on the box as "Field Testing Kit". I do not remember what was lying inside the field testing kit. About 20 grams of the contraband which was taken from all the polythene bags collectively, was put in a test tube and after 5 minutes, its colour turned to dark purple. Besides this, no other test was conducted by the CBI and I was informed by them that the contraband was heroin....."
65. PW-7 Insp. Neelam Singh was the member of the CBI team. She has deposed similarly on the process of testing of heroin.
FIR No. RC SIB 2008 E 2009 State Vs. Wasim Raja Page No. 26 of 60
66. PW-7 Insp. Neelam Singh deposed as under:-
"..... Ins. VK Shukla opened all the seven packets and took out very small quantity and checked the same with the help of Field Testing Kit which upon testing turned to purple colour thus confirming the recovered substance to be heroin."
67. It is therefore, evident that representative sample was not drawn from each of the polythene bag and tested for the presence of heroin. In fact, a small quantity of heroin was taken from each of the polythene bag and mixed and the mixture was subjected to the process of testing with the Field Testing Kit. The procedure adopted for testing the presence of heroin in the said seven polythene bags was improper. Point No. 2:- Discrepancies regarding the weighing machine
68. The case of the prosecution, as stated in the charge- sheet, is that the contents of all the seven polythene transparent packets were weighed collectively and found to be 6.6 Kgs. (six Kilogram and six hundred grams). However, the charge-sheet or the statements under section 161 of the Cr.P.C. of any member of the raiding team does not disclose the nature of the weighing machine/ instrument used by the CBI team at the spot.
69. Let us proceed to examine the depositions of the members of the raiding team on this aspect.
70. PW-1 Sh. Brighu Das, the independent witness deposed as under:-
".....The seven packets were not weighed separately but collectively on a weighing machine. I cannot tell the description of the said weighing machine. The weighing machine was showing the weighment through needle. However, I do not remember about this exactly.
FIR No. RC SIB 2008 E 2009 State Vs. Wasim Raja Page No. 27 of 60 .....The Sample was weighed on another small weighing machine and the same was weighed along with the polythene bag. The said polythene bag was then stapled by the IO of the case."
71. PW-6 Dy. S.P. Kerketta, the Supervising Officer deposed as under:-
".....The weighing of the contraband was done on the weighing machine which was not digital weighing machine but was mechanical weighing machine."
72. PW-7 Insp. Neelam Singh, the recovery witness deposed as under:-
"The contraband was weighed on a mechanical weighing scale which was having two pawns - to say
- on one side the weights were kept and on the other side contraband was kept. We were having the weights of the denomination 2 kg, 1 kg, ½ kg, 100 grams, 50 grams, 5 grams, 10 grams & 20 grams etc but I do not remember how many weights and of which denomination were used while weighing the contraband."
73. PW-11 Insp. J.R. Katiyar, the recovery witness deposed as under:-
"The IO was having a manual weighing scale (taraju). The IO was having weights of several denomination including two kilograms, five kilograms, one kilogram, 500 grams, 200 grams, 100 grams, 50 grams, 20 grams, 10 grams and 5 grams. The weighing scale in possession of the CBI Team."
74. PW-9 Sh. Nanak Lal, the independent witness deposed as under:-
".....The weighing was a mechanical weighing scale having a rod and two pawns. The denomination of the weights were 1 kg, 2 kg, 500 grams 50 grams 100 grams 250 grams and all of them were of iron."
FIR No. RC SIB 2008 E 2009 State Vs. Wasim Raja Page No. 28 of 60
75. It is therefore, evident that there are two versions. First is emanating from PW-1 Sh. Bhrigu Das that two mechanical weighing machines were used for weighing. Second is emanating from the depositions of the other members of the raiding team is that the weighing machine was a manual weighing instrument (taraju) and the weights of various denominations were used for weighing the contraband.
76. PW-1 Bhrigu Das and PW-9 Sh. Nanak Lal conducted search of the three vehicles of the CBI team. In the said search, no such weighing machine or instrument or weights were found in the said three vehicles.
77. For the sake of clarity, let us have a glance at the deposition of PW-1 Sh. Bhrigu Das, as under:-
"At about 5.00 am, Ins. Shukla asked me to check the CBI vehicles for anything unwanted. In the vehicles there were stationery items & tools for testing/checking the drugs."
78. It means that the CBI team proceeded from its office without any weighing machine or instrument. The prosecution has not been able to clarify as to from where the mechanical weighing machine (s) or taraju were arranged by the CBI team. There is no explanation as to why the members of the raiding team maintained silence on this important aspect in their statements under section 161 of the Cr.P.C.
79. There is contradiction in the deposition of the members of the raiding team regarding the nature and number of the weighing machines used for weighing at the spot.
FIR No. RC SIB 2008 E 2009 State Vs. Wasim Raja Page No. 29 of 60 Point No. 3:- Improper procedure of drawing of samples
80. It is the case of the prosecution that all the said 7 polythene packets were weighed collectively and the weight was 6.600 kilogram. It is further case of the prosecution that two representative samples of 20 grams each were drawn from the said 7 polythene transparent packets which were placed in two brown envelopes marked as A1 and A2 respectively and the remaining consignment was retained in the said 7 polythene transparent packets and in the same big transparent polythene packets which was marked as A.
81. PW-2 Insp. Vijay Kumar Shukla was the seizing officer. He deposed as under:-
"The recovered packets were taken into police possession and on weighment (collectively) found to be 6.6 kg. Thereafter, two representative samples each weighing 20 grams were drawn collectively from all the seven packets placed in transparent polythene packet which were placed in khakhi envelopes, and sealed with the CBI brass seal bearing impression 'CBI/VKS/01', marked as A-1 & A-2 and were signed by all the concerned including the independent witnesses and the suspect. The remaining quantity of the recovered substance was retained in the same seven transparent polythene packets kept in big transparent polythene packet which was wrapped and stitched in white marking cloth. This packet was sealed with the above said brass seal and was marked A. This was also signed by all the concerned including the independent witnesses and the suspect."
82. It is therefore, evident that the seven polythene packets were not separately weighed. It is further evident that representative samples were not drawn from each of the seven polythene packets.
FIR No. RC SIB 2008 E 2009 State Vs. Wasim Raja Page No. 30 of 60
83. For the sake of clarity on this aspect, it would be appropriate to have a glimpse of the depositions of the witnesses.
84. PW-1 Bhrigu Das, the independent witness deposed as under:-
"From the seven packets, small quantity of 20 grams was taken out from all the packets collectively, and tested with the help of Field Testing Kit. The recovered substance was weighed and total weight came to be 6 kg 600 grams. The testing gave the contraband dark purple colour. I was told by CBI personnel that dark purple colour reveals a very fine quality of heroin.
Another20 grams was again taken collectively and put in a small polythene bag and then put in a brown colour envelope. The previous 20 grams was also put in a small polythene bag which was further put in a brown colour envelope and the envelopes were duly sealed. The seal with which the sealing was done was having the impression of CBI/VKS/01. The rest recovered substance was sealed in the same manner in which it was recovered, after keeping the same in an empty bag and the same was also sealed with the seal of CBI/VKS/01 and was given mark A and the envelopes were marked as A-1 & A-2....."
85. In his cross-examination, PW-1 Bhrigu Das deposed as under:-
".....The seven packets were not weighed separately but collectively on a weighing machine....."
86. PW-7 Insp. Neelam Singh, the recovery witness deposed as under:-
"Thereafter the total recovered contraband was weighed and it came to be 6.6 kg. After taking out small quantity from each packet, two parcels of 20 grams each in two small transparent polythene pouches, were made, and then the said sample parcels were kept in two separate khaki envelopes and were given mark A1 & A2. The said sample parcels were sealed with the seal of CBI/VKS/01....."
FIR No. RC SIB 2008 E 2009 State Vs. Wasim Raja Page No. 31 of 60
87. PW-9 Nanak Lal, the independent witness deposed as under:-
".....The contraband was weighed in one go. Only two samples were taken from the contraband. I do not remember as to how much was taken from each of the seven packets but the sample was taken out from all the seven packets. The samples were kept in polythene pouches and openings thereof were stapled. (again said) the openings were heat-sealed.."
88. PW-11 Insp. J.R. Katiyar, the recovery witness deposed as under:-
"Thereafter two representative samples each weighing 20 grams were drawn collectively from the 7 transparent polythene packets. They were kept in two separate transparent polythene packets and further placed in two separate khakhi paper envelopes, sealed with the CBI brass seal bearing impression of CBI/VKS/01. The said sample envelopes were marked as A-1 and A-2. We all concerned including the independent witnesses signed on the envelopes containing the samples.
Before taking out sample the contents of all the seven transparent packets were weighed collectively and it came to be 6.6 kg (approximately)...."
89. In his cross-examination, PW-11 Insp. J.R. Katiyar stated as under:-
"Separate samples were not taken out from each of the seven packets. Vol. Small quantity of powder was taken out from each of the seven packets and was converted into two samples....."
90. It is therefore, clear that the polythene packets were not weighed separately and that two samples were drawn after taking out small quantity of powder from all the 7 bags.
FIR No. RC SIB 2008 E 2009 State Vs. Wasim Raja Page No. 32 of 60
91. In Union of India v. Bal Mukund, Crl. Appeal No. 1397 of 2007, decided on March 31, 2009 by the Hon'ble Supreme Court of India, 10 kg. of opium packed in 5 polythene bags of 2 kg. each was recovered. However, seizing officer taken samples of 25 grams each from all the five bags and then mixed them and sent to the laboratory. In these circumstances, Hon'ble Supreme Court of India observed as under:-
"7. The manner in which a sample of narcotic is requited to be taken has been laid down by Standing Instruction 1/88, the relevant portion whereof reads as under:
"(e) While drawing one sample in duplicate from a particular lot, it must be ensured that representative drug in equal quantity is taken from each package/container of that lot and mixed together to make a composite whole from which the samples are drawn for that lit.
*****
36. There is another aspect of the matter which cannot also be lost sight of. Standing Instruction 1/88, which had been issued under the Act, lays down the procedure for taking samples. The High Court has noticed that PW-7 had taken samples of 25 grams each from all the five bags and then mixed them and sent to the laboratory. There is nothing to show that adequate quantity from each bag had been taken. It was a requirement in law."
92. In Basant Rai v. State, 2012 [3] JCC (Narcotics) 138 (High Court of Delhi), the appellant was found carrying a polythene bag containing 8 smaller packets having black coloured substance which was stated to be the charas. Seizing officer had taken out small pieces of charas from each packets and made two sample parcels which were sent to FSL and found to be charas.
FIR No. RC SIB 2008 E 2009 State Vs. Wasim Raja Page No. 33 of 60
93. Hon'ble Delhi High Court held as under:-
"25. After hearing both the learned counsel for parties and going through the Trial Court Record. I find force in the submission of learned counsel for appellant. Admittedly, the samples were drawn after breaking small pieces from 08 of the polythene bags which were allegedly kept in a green coloured bag by the appellant in his right hand. The IO prepared two samples of 25 grams each after taking a small quantity from each of the slabs.
26. Though the settled law is that if it is not practicable to send the entire quantity then sufficient quantity by way of samples from each of the packets of pieces recovered should be sent for chemical examination. Otherwise, result thereon, may be doubted.
27. For example, if the 08 packets were allegedly recovered from the appellant and only two packets were having contraband substance and rest 6 packets did not have any contraband; though all may be of the same colour, when we mix the substance of all 8 packets into one or two; then definitely, the result would be of the total quantity and not of the two pieces. Therefore, the process adopted by the prosecution creates suspicion. In such a situation, as per settled law, the benefit thereof should go in favour of the accused. It does not matter the quantity. Proper procedure has to be followed, without that the results would be negative."
94. PW-2 Insp. Vijay Kumar Shukla had not drawn representative sample from each of seven packets. He had not separately weighed the polythene packets. As such, it cannot be ascertained as which of the said seven packets was containing heroin. The Court is unable to link the CRCL result with any packet out of the said seven packets. The procedure adopted by PW-2 Insp. Vijay Kumar Shukla for drawing samples was improper and benefit thereof would go to the accused.
FIR No. RC SIB 2008 E 2009 State Vs. Wasim Raja Page No. 34 of 60 Point No. 4:- Preservation of samples and test memo
95. Preservation of the contraband is one of the most important feature of a case relating to the Narcotic Drugs and Psychotropic Substances. The punishment provided under the act is very stringent. It is the duty of the prosecution to prove that the sample parcel examined by the laboratory emanated from the source. The preparation, sealing and preservation of the samples and test memos must be above board.
96. It is the admitted case of the prosecution that two sample parcels of 20 grams each were drawn and sealed with the seal CBI/VKS/01 which were marked as A1 and A2 and the main consignment was also sealed and marked as A.
97. Let us proceed to examine as to whether the sample parcels were properly preserved in the malkhana and remained intact, till it was examined by the CRCL.
98. PW-2 Insp. Vijay Kumar Shukla, the seizing officer deposed as under:-
"The recovered packets were taken into police possession and on weighment (collectively) found to be 6.6 kg. Thereafter, two representative samples each weighing 20 grams were drawn collectively from all the seven packets placed in transparent polythene packet which were placed in khakhi envelopes and sealed with the CBI brass seal bearing impression CBI/VKS/01, marked as A-1 & A-2 and were signed by all the concerned including the independent witnesses and the suspect. The remaining quantity of the recovered substance was retained in the same seven transparent polythene packets kept in big transparent polythene packet which was wrapped and stitched in white marking cloth. This packet was sealed with the above said brass seal and was marked A. This was also signed by all the concerned including the independent witnesses and the suspect.
FIR No. RC SIB 2008 E 2009 State Vs. Wasim Raja Page No. 35 of 60 NCB test memo was prepared in triplicate mentioning therein the details of samples/seals etc. The test memo is already Ex.PW-1/D and it bears my signatures at point B. Another test memo (containing the report of CRCL on its back) is now Ex.PW-2/4 and it bear my signatures at point A. Further facsimile of the above said brass seal were obtained on three separate sheets in wax as well as on three separate in ink. The facsimile in wax is already Ex.PW-1/E and it bears my signatures at point B and the facsimile in ink is already Ex.PW-1/F and it bears my signatures at point B."
99. PW-2 Insp. Vijay Kumar Shukla deposed further:-
"Soon after reaching CBI office, the case property i.e. sample envelopes and the main packet containing recovered contraband were deposited in the malkhana of CBI, EOU-V, in intact sealed condition....."
100. It is evident from the perusal of deposition of PW-2 Insp. Vijay Kumar Shukla that he has not deposed anything about the deposit of test memos (in triplicate) and facsimiles in the malkhana.
101. In order to dispel any doubt, relevant portion of the testimony of PW-4 SI Naval Singh is reproduced as under:-
"On 11.11.2008, I was working as SI in CBI/EOU-VI and was looking after the work of malkhana of EOU-V & EOU-VI branches. I have brought the original malkhana register with me.
On the said date, Insp. V.K. Shukla deposited the case property one sealed packet mark A, another sealed packet A-2, one sealed packet white marking cloth marked A, in the malkhana and I made entry in malkhana register in this regard vide entry No. 157/08 to 159/08. I have brought the original register. Photocopy of the same on record is already Ex.PW3/E. FIR No. RC SIB 2008 E 2009 State Vs. Wasim Raja Page No. 36 of 60
102. It is evident that PW-4 SI Naval Singh did not depose anything regarding the deposit of test memo in the malkhana by PW-2 Insp. Vijay Kumar Shukla on 11.11.2008.
103. It is further evident from the cross-examination of PW-4 SI Naval Singh, as under:-
".....Case property was deposited at malkhana by Inspector V.K. Shukla.....I did not obtain the signature of Inspector V.K. Shukla when he deposited the case property with me. FSL form was not deposited with me by Inspector V.K. Shukla....."
104. A perusal of the copy of Seized Property Registered Ex.PW3/C, it is further evident that there is no mention of deposit of test memo therein.
105. On 19.11.2008, PW-3 ASI Ramkanwar, In-charge, malkhana, CBI, EOU-V Branch, New Delhi had taken the sample parcel mark A1 from the malkhana alongwith the letter Ex.PW3/A to CRCL. He deposed as under:-
"On 19.11.2008, as per direction of SP, EOU-V, CBI, I had received a sample mark A-1 from the malkhana EOU-V Branch, alongwith the letter of the then SP EOU-V Branch, CBI for sending the aforesaid marked sample to Central Revenue Control Laboratory. The said letter is Ex.PW3/A. The same bears my signatures at point A. The aforesaid sample was handed over in the office of CRCL by me vide receipt No. 309 dated 19.11.2008 which is Ex.PW3/B (Objected to as to the mode of proof). Entry in this regard was made by me in the seized property registered. The photocopy of the same is Ex.PW3/C (Original seen & returned). The same bears my signatures at point A."
106. It is clear from the perusal of the deposition of PW-3 ASI Ramkanwar that he has not deposed that he had taken the test memo (in triplicate) to CRCL with sample parcel.
FIR No. RC SIB 2008 E 2009 State Vs. Wasim Raja Page No. 37 of 60
107. Entry Ex.PW3/C on the seized property register also does not mention that the test memo was taken to or deposited in the CRCL by PW-3 ASI Ramkanwar.
108. PW-3 ASI Ramkanwar admitted this fact in his cross-examination as under:-
".....In the entry Ex.PW3/C, it was mentioned by me the sample parcel A-1 was being taken to be deposited at CRCL. I have seen Ex.PW3/C wherein it is mentioned that sample parcel mark A-1 has been deposited in the office of CRCL. I have seen Ex.PW3/C wherein there is no mention that any test memo was taken by me or was deposited by me in the office of CRCL alongwith the sample parcel....."
109. It is therefore, evident that the test memo (in triplicate) was never deposited in the malkhana. It remained a mystery as to where the test memos were kept from 11.11.2008 to 19.11.2008. It further remained unresolved as to who had deposited the test memo in the CRCL as the acknowledgement receipt Ex.PW3/B mentions that test memo was received alongwith sample parcel A-1.
110. This is not end of the matter. PW-2 Insp. Vijay Kumar Shukla stated in his depositions that he had deposited the sample envelopes and the main packet containing recovered contraband in the malkhana of CBI, EOU-V in intact and sealed condition. PW-4 SI Naval Singh stated that 'PW-2 Insp. Vijay Kumar Shukla deposited one sealed packet mark A, another sealed packet A-2, one sealed packet white marking cloth marked A in the malkhana' and he made entry in malkhana register in this regard vide entry No. 157/08 to 159/08 and a copy of the relevant page of the register is Ex.PW3/E. FIR No. RC SIB 2008 E 2009 State Vs. Wasim Raja Page No. 38 of 60
111. However, perusal of the copy of the seized property register Ex.PW3/E reveals that the sample parcels A-I and A-II were deposited on 11.11.2008 and not A-1 and A-2. Relevant portion of the seized property register can be depicted as under:-
SEIZED PROPERTY REGISTER Serial No. Date of entry 11.11.2008 Date and place of seizure 11.11.2008 By whom seized or deposited in malkhana............................ Crime No., year and name S.P.E. Office RC 912008 EOUV Details of Property MR 157/08 one sealed packet marked AI MR158/08 one sealed packet marked A II MR 159/08 one sealed packet marked A
-sd-
Naval Singh 11.11.2008 I/C, Malkhana
112. It is further evident that PW-1 Bhrigu Das, the holder of the seal visited the CBI office on 18.11.2008.
113. From the aforesaid discussion, it is evident that the sample parcels and test memos (in triplicate) were not properly preserved in the malkhana.
114. In 'Balban Singh v. State', Crl. A. No. 921 of 2005, decided on 6th May, 2008; Hon'ble Delhi High Court while dealing with the failure of the prosecution to prove the dispatch of the FSL form with the sample for testing, observed as under:-
FIR No. RC SIB 2008 E 2009 State Vs. Wasim Raja Page No. 39 of 60 "9. In Radha Kishan v. State (supra), this Court has explained the importance of ensuring that the FSL form is duly sent with the sample for testing. IN para 26 of the said judgment, it was explained:
26. It is normal procedure that when the incriminating articles are seized and are required to be sent to the Central forensic Science laboratory, those articles are immediately sealed and deposited at the Malkhana at the police station till they are taken out and sent to the Laboratory. In the instant case, this was not done. Contemporaneously with seizure and sealing of such articles, impression of seal used on the seal is put on a form, commonly called, the CFSL form. This is so done because at the time of analysis of sealed packets in the laboratory, the analyst concerned is able to tally seal impressions on sealed packets with those appearing on the CFSL form in order to rule out any possibility of tampering of tampering of seals on sealed packets after seizure anywhere or in transit till receipt in laboratory. The importance of the CFSL form thus cannot be overemphasized because this document provides a valuable safeguard to an accused to ensure that no tampering has been done during intervening period. The CFSL form is a document or forwarding note accompanying a sample sent by the police to the Forensic Science Laboratory. Such a form contains the nature of the crime, list of samples being sent for examination, nature of examination required and specimen of the seal/seals affixed on the exhibit besides particulars of the case/ police station." (emphasis supplied)
10. In Radha Kishan, after referring to the Delhi High Court Rules, Part III Chapter 18 B, regarding proper proof of custody of articles, it was held by this Court that the evidence of preparation and dispatch of the FSL form was critical for ensuring that the sealed sample was kept intact in the police malkhana. An adverse inference would be drawn against the prosecution in the event the FSL form was not proved to have been prepared and dispatched. To the same effect are the judgments in Moolchand and Phool Kumar. Further, it has been held in Satinder Singh v. State (NCT of Delhi) 69 (1997) DLT 577, that oral evidence which is contrary to the documentary evidence ought not to be relied upon. In the instant case, despite the prosecution witnesses asserting that the FSL form was prepared, not only is the FSL form unavailable on the record but the photocopies of the store room register and road certificate throw considerable doubts whether the FSL form was in fact prepared and dispatched. These documents are unreliable. For the above reasons, it is held that in the FIR No. RC SIB 2008 E 2009 State Vs. Wasim Raja Page No. 40 of 60 instant case the non-compliance with the mandatory requirement of preparation and dispatch of the FSL form with the sample sent for testing is fatal to the case of the prosecution."
115. In Rajan Ali v. The State (Delhi Administration), 2000 (1) CLR 362; the prosecution could not produced the link evidence that CFSL form was deposited alongwith the case property in the malkhana or it was sent alongwith sample parcel to the CFSL. Hon'ble High Court of Delhi held as under:-
"As is manifest from the depositions referred to above of Inspector Dharam Pal Singh, PW-5, ASI Bakhtawar Singh, PW-6, HC Rajbir Singh, PW-2 and Constable Dharamvir Singh, PW-3 coupled with the said entry in Ex.PW2/A neither the CFSL form was deposited in the malkhana nor sent alongwith the sample parcel to the office of CFSL. It is true that a line in the cyclostyled report of the CFSL report Ex.PX does say that one sealed parcel was received with the seals of BS and DPS as per specimen enclosed but in view of the aforesaid evidence much significance cannot be attached to it as the same appears to have been made in a mechanical and routine matter. In the absence of the link evidence to the above effect the possibility of the sample being tampered with cannot be ruled out altogether. I am supported in this view by the decisions of this Court in Safiullah vs. State (Delhi Admn), 1993 JCC 33, Mool Chand vs. State, 1993 JCC 234; Amarjit Singh and another vs. State (Delhi Admn.), 1995 JCC 91; Abdul Gaffar vs. The State (Delhi Admn.), 1996 JCC 497 and Berthe Djakaridja vs. The State 1998 (1) JCC (Delhi) 62. The view taken by the trial court that it was for the appellant to have brought material on record to show that there was tampering with the seals of the sample parcel being erroneous deserves to be discarded. Thus the orders of conviction and sentence passed by the Additional Sessions Judge require to be set aside."
116. There is no evidence as to with whom the test memos (in triplicate) were kept during 11.11.2008 to 19.11.2008 FIR No. RC SIB 2008 E 2009 State Vs. Wasim Raja Page No. 41 of 60
117. The prosecution has failed to prove the link evidence regarding the preservation and deposit of test memos from the stage of preparation thereof to the examination of the sample parcel by CRCL. The prosecution has failed to connect the sample parcel A-1 with its source. Therefore, the prosecution cannot derive any advantage from the CRCL Report Ex.PW8/A. Point No. 5:- Delay in sending sample parcel to CRCL
118. Delay per se would not be material if the prosecution is able to establish that the seized articles were in proper custody and in the proper form and that the sample sent to the chemical analysis for testing was the same that was seized. (See: Valsala v. State of Kerala 1993 (2) Crimes 267 (SC) and State of Gujarat v. Ismail U Haji Patel (2003) 12 SCC 29).
119. It is evident that the sample parcels prepared at the spot were given mark A-1 and A-2. However, the relevant entry in the Seized Property Register Ex.PW3/E shows that the sample parcels deposited in malkhana were bearing mark A I and A II. It is further evident that the test memo was not deposited in the malkhana. It is evident that test memo was not deposited in the CRCL with sample parcel mark A-1. The seal was handed over to PW-1 Bhrigu Das who had visited the office of CBI on 18.11.2008. There is no evidence as to with whom test memo remained during this period. There is no evidence as who had sent test memo to CRCL. In these circumstances, the delay of 7 days in depositing the sample parcel with CRCL is fatal to the case of the prosecution.
FIR No. RC SIB 2008 E 2009 State Vs. Wasim Raja Page No. 42 of 60
120. In Jarnail Singh v. State of Punjab, 2008 [4] JCC [Narcotics] 204; Hon'ble Punjab and Haryana High Court held as under:-
"12. It is abundantly clear from the above instruction that the sample should be despatched within 72 hours of seizure whereas, in the instant case, the sample parcels were sent after 13 days from the date of the recovery qua which no luculent or cogent explanation has been given by the prosecution. The record is quite barren to show that CFSL form was filled at the spot or deposited in the malkhana. The handing over of the seal to the abovementioned police official, sending all the sample parcels for chemical examination after 13 days coupled with non-preparation of CFSL form at the spot or its deposit in the malkhana are cumulatively fatal to the prosecution case. An identical view was taken in Ramji Singh's case (supra)."
121. In Dharambir v. The State of Haryana, 2008 [4] JCC [Narcotics] 197; there was delay of 9 days in sending the sample to the office of Forensic Science Laboratory and there was no evidence that the sample impression of the seals were deposited in the laboratory. Hon'ble Punjab and Haryana High Court held as under:-
"10. It was next submitted by the Counsel for the appellant, that the sample impression of the seal, was not sent to the Forensic Science Laboratory, as a result whereof, it could not be ascertained that, as to whether, the seals on the sample, were the same, as were allegedly affixed, at the time of alleged seizure. Ex.PD, is the affidavit of Fateh Singh, Constable, who took the sample to the office of the Forensic Science Laboratory. He stated that he was handed over the sample on 29.01.1994, with seals intact, and he deposited the same, in the office of the Forensic Science Laboratory. There is nothing, in his affidavit, that he was handed over the sample impression of the seals, and he deposited the same. It means that neither this witness was handed over the sample FIR No. RC SIB 2008 E 2009 State Vs. Wasim Raja Page No. 43 of 60 impression of seal, nor he deposited the same, in the office of the Forensic Science Laboratory. Under these circumstances, it could not be said whether the sample was received in the office of the Forensic Science Laboratory, with seals intact, and whether, the said parcel bore the same seals, as were allegedly affixed by the Investigation Officer and the SHO, on the same. In State of Rajasthan v. Gurmail Singh, 2005 (2) JCC [Narcotics] 123 : 2005 (2) RCR (Criminal) 58 (SC), the sample seal was not sent to the Laboratory, at the time of sending the sample parcel. The Apex Court held that the case of the prosecution was doubtful, on account of this reason. In this view of the matter, the case of the prosecution also became doubtful. The trial Court, did not take into consideration, this aspect of the matter, as a result whereof, miscarriage of justice occasioned."
Point No. 6:- Presence of Dy. S.P. Basil Karketta is doubtful
122. The case of the prosecution is that Dy. S.P. Basil Karketta was deputed to supervise the search operation. He is an important witness of the prosecution. He was examined as PW-6 by the prosecution. However, a perusal of his testimony shows that he has contradicted the prosecution witnesses on material aspects. He was not supporting the prosecution case and therefore, he was cross-examined by the prosecution so as to elicit the facts regarding the search operation. On thoughtful examination of his depositions, his presence during the search operation is highly doubtful.
123. PW-6 Dy. S.P. Basil Karketta deposed that:-
".....Thereafter we all offered our personal search to each other but nothing incriminating was found from our personal search.
We searched the CBI vehicles but nothing incriminating was found except the stationary items....."
FIR No. RC SIB 2008 E 2009 State Vs. Wasim Raja Page No. 44 of 60
124. It was not the case of the prosecution that the members of the raiding team offered personal search to each other. It was also not the case of the prosecution that all the members of the raiding team searched the CBI vehicles but nothing incriminating was found. Precisely, the case of the prosecution was that PW-1 Bhrigu Das and PW-9 Nanak Lal conducted personal search of the members of the raiding team and they conducted the search of the CBI vehicles.
125. PW-6 Dy. S.P. Basil Karketta deposed as under:-
"Some family member of the suspect opened the gate and we all the team members entered into the house at the first floor. We introduced ourselves to the father of the suspect. At that time, accused Wasim Raja was not present alongwith his father. Father of accused Wasim Raja called the accused who came downstairs from the first floor of the house.
126. It was not the case of the prosecution that accused Wasim Raja was called by his father and he came down from the first floor of the house. The case of the prosecution was that the raiding team entered into the house immediately on opening of the gate of the house and rushed to the first floor where accused Wasim Raja was sitting in one room.
127. To remove any doubt. Relevant portion of the testimony of PW-2 Insp. Vijay Kumar Shukla, the seizing officer is as under:-
"At about 7.00 a.m., main entry door of the above said house was opened by someone from inside. Then I alongwith other CBI team members and independent witnesses entered the said house and rushed to the first floor room of suspect Wasim Raja. Door of the room was open and Wasim Raja was available there.
FIR No. RC SIB 2008 E 2009 State Vs. Wasim Raja Page No. 45 of 60 I disclosed my identity as well as identity of other team members and the independent witnesses to suspect Mohd. Wasim Raja and also informed him the purpose of our visit."
128. PW-6 Dy. S.P. Basil Karketta has contradicted the prosecution on the option of the accused Wasim Raja to be searched by him and not by any other Gazetted Officer or Magistrate. He deposed as under:-
"A notice was served upon the accused to the effect that if he wanted, he could be taken to a Magistrate, otherwise, being a Gazetted Officer, myself was empowered to get the search conducted in my presence. The accused declined the offer. The notice served in this regard under section 50 NDPS Act on record is Ex.PW1/B which bears my signatures at point E....."
129. However, the case of the prosecution was that the accused Wasim Raja declined the offer to be searched in the presence of any other Gazetted Officer or the nearest Magistrate and opted his personal search before Dy. S.P. Basil Karketta. Option of the accused Wasim Raja to be searched in the presence of Dy. S.P. Basil Karketta was endorsed by none other than Dy. S.P. Basil Karketta.
130. The note written by Dy. S.P. Basil Karketta on the original notice under section 50 of the NDPS Act Ex.PW1/B is as under:-
"In our presence, Mohd. Wasim Raja declined to be searched before any other competent G.O or the nearest Magistrate and opted for his personal search before the undersigned.
Basil Karketta 11.11.2008 DSP/CBI/EOU-VI N. Delhi"
FIR No. RC SIB 2008 E 2009 State Vs. Wasim Raja Page No. 46 of 60
131. On the aspect of testing, sampling and sealing, PW-6 Dy. S.P. Basil Karketta deposed as under:-
"Thereafter we took out samples of 20 grams each from each packet the recovered substance and checked the same with the help of Field Testing Kit and it was confirmed to be heroin substance. Thereafter, two packets of sample were prepared and sealed with the brass seal of "CBI VK..." but I do not recollect the later alphabets of the seal. The brass seal was thereafter handed over to one of the witness with the direction to produce the same as and when required by the Court. Again said : The samples were converted into cloth parcel and sealed with the brass seal.
Thereafter recovery memo was drawn whereupon all the team members, the accused and the witnesses but their signatures. The same is Ex.PW1/A bearing my signatures at point E on each page. Thereafter we offered our search to the accused but the accused refused to take our search.
Thereafter nothing happened in my presence."
132. It has never been the case of the prosecution that samples of 20 grams each were taken from each packet and checked with the help of field testing kit. The case of the prosecution was that small quantity of the recovered of white crystallized powder was drawn from each of the 7 polythene packets and tested with the help of field testing kit.
133. PW-6 Dy. S.P. Basil Karketta has not stated anything regarding drawing of two samples of 20 grams from the said 7 polythene packets. He has not stated anything about the marking of the said sample parcels. He could not state the particulars of the seal impression or marking of main packet.
FIR No. RC SIB 2008 E 2009 State Vs. Wasim Raja Page No. 47 of 60
134. PW-6 Dy. S.P. Basil Karketta has not spoken about any document except recovery memo which was prepared at the end of the proceedings between 2.00 p.m. to 5.30 p.m.
135. CBI cross-examined Dy. S.P. Basil Karketta after seeking permission of the Court as he had not deposed on the material aspects of the case.
136. PW-6 Dy. S.P. Basil Karketta was cross-examined by the defence. In his cross-examination, he talked about a memo prepared by the public witnesses while taking his personal search and service of a notice under section 187 Cr.P.C. upon the public persons who refused to join the investigation. He talked about knocking the main gate of the house by some member of the raiding team which is not the case of the prosecution. He could not state the numbers of room on each of three floors of the house. He stated that the notice under section 50 of the NDPS Act Ex.PW1/B was prepared by Insp. Vijay Kumar Shukla whereas the said notice was prepared by Insp. J.R. Kaityar and PW-6 made an endorsement thereon. He talked about personal search of Insp. Neelam Singh by the female member of the house which is not the case of the prosecution. He stated that test memo was kept in an envelope by the IO and it was sealed. It has never been the case of the prosecution that PW-2 Insp. Vijay Kumar Shukla kept the test memo in an envelope and sealed with his seal. He feigned ignorance about material facts pertaining to the search operation.
FIR No. RC SIB 2008 E 2009 State Vs. Wasim Raja Page No. 48 of 60
137. For the sake of clarity, it would be appropriate to reproduce the relevant portion of the cross-examination of PW-6 Dy. S.P. Basil Karketta, as under:-
".....I reached in my office at about 4.00 am. The public witnesses - PWs-Bhrigu Dass & Nanak Lal, had already reached before I reached the office. A memo of taking my personal search by the said public witnesses was prepared by the IO of the case. After seeing the file, the witness has stated that there is no such memo on the record. It is incorrect to suggest that such memo has not been placed on record deliberately as no such memo was prepared or that no personal search was conducted of any member of the raiding party at any point of time by the said public persons. No memo was prepared with regard to search of the vehicles used by the raiding party. I do not remember as to how many vehicles were used for reaching at the spot.
No personal search of Insp. Neelam Singh was taken prior to leaving for the spot. I do not remember the route taken by us for reaching at the spot from CBI office. I do not remember if the house No. B-365 (first floor), Subhash Mohalla, North Ghonda, Delhi is situated on the main road or in the lane. As soon as we reached at the spot, many people had collected over there and they were asked to join the investigation but they refused. Notice under section 187 Cr.PC was given to the said persons who refused to join the investigation. They left the spot without disclosing their names and addresses. I do not remember where the vehicles used by the raiding party were parked. I do not remember the positions of members of the raiding party at the spot. I do not remember if IO/Ins.VK Shukla was having any search authorization for the search warrant for search of the above said house. I did not ask this fact myself from Ins. VK Shukla before leaving the office for the spot.
For getting the house opened, the main gate of the house was knocked by some member of the raiding but now I do not remember his name. As the gate opened, we introduced ourselves and then entered the house and the occupants had not asked about the FIR No. RC SIB 2008 E 2009 State Vs. Wasim Raja Page No. 49 of 60 search warrant. All the occupants of the house had immediately collected on the ground floor near the gate when the gate was opened.
My statement was recorded by the IO of the case but I do not recollect the exact date of recording of my statement. I do not remember whether I had stated in my statement recorded by the IO of the case that we had disclosed our identity when the gate was opened and the occupants had not asked for any search warrant. (Confronted with statement Ex.PW5/DA where it is not so recorded).
I do not remember as to how many rooms were there on the ground floor. The same is my reply qua the rooms on the first & second floors. I do not remember as to how many occupants were there in the said house. I do not remember as to how many portions were there in house No. B-365, Sabri Manzil, Subhash Mohalla, North Ghonda Delhi - whether there were 2, 3 or 4 portions of the said house and in which portion we had gone I do not remember whether the portions in house No. B-365 Sabri Manzil, Subhash Mohalla, North Ghonda Delhi were occupied by different persons.
Father of the accused was with us when the search of rooms of the houses was taken. I do not remember if father of the accused (whose name I do not remember) had signed on any document in my presence. I do not remember which of the rooms or place was firstly searched by us and where we had gone subsequently. I do not remember the time when the seven packets were recovered. I do not remember if the room from where recovery was effected was locked or unlocked. The cupboard was unlocked. I do not remember the size of the cupboard from where the recovery was effected. I do not remember as to how many partitions were there in the cupboard and from which portion recovery was effected. I do not remember what other articles were there inside the cupboard. I do not remember whether there was lock affixed on the said cupboard or not. I do not remember if the IO of the case had asked for the keys of the said room which was locked. I do not remember as to how long I remained at the spot.
FIR No. RC SIB 2008 E 2009 State Vs. Wasim Raja Page No. 50 of 60 IO of the case/Ins. VK Shukla had prepared the notice under section 50 NDPS Act in my presence. I do not remember if father of the accused or any other member had signed on the said notice. I do not remember if any reply was given by accused Wasim Raza on the said notice or that anything was written by him in is own hand. I do not remember the exact time when notice under section 50 NDPS Act was served upon the accused. The other inmates of the house were also present when we were searching the house.
Insp. Neelam Singh had given her personal search to the female members of the house but I do not remember if any memo in this regard was prepared. I do not remember as to how much time was taken in the entire process and proceedings. I do not remember as to whether we had gone from 12.00 noon to 3.00 pm. I do not remember as to when we lastly left the spot.
I do not remember the number of seals affixed on each of the parcels. The seals affixed on the parcels were in wax. However, both the seals- with ink and with wax were also used. I do not remember if signatures of father or any other member of the house were obtained on the recovery memo. The weighing of the contraband was done on the weighing machine which was not digital weighing machine but was mechanical weighing machine.
I do not remember as to how many column are there in the Test memo. The test memo was put in an envelope by the IO of the case and was then sealed by him with his own seal. I do not remember if I had signed on the said envelope or not. I do not remember if the IO of the case had mentioned RC number on the test memo as well as on the envelope in which the test memo was sealed. I do not remember if I had signed on any test memo or not. The local police or the PCR had not visited the place in my presence. I do not remember with which ink or pen, markings on the cloth parcels was given. I do not remember if I had signed on the cloth parcels."
FIR No. RC SIB 2008 E 2009 State Vs. Wasim Raja Page No. 51 of 60 Point No. 7:- No investigation regarding source and destination of supply
138. Given by the argument of CBI that huge quantity of fine quality of heroin was recovered from the accused Wasim Raja, it was expected that the CBI would investigate the source and destination of supply. It was also expected that high skills of investigation would be demonstrated and the material collected during the search operation would be examined and used for the collection of the evidence.
139. However, the facts of the case disclosed that no investigation was done by PW-12 Insp. V. Balasubramanian to ascertain the source and destination of supply.
140. To begin with. During the personal search of the accused Wasim Raja two mobile phones alongwith three SIM cards were recovered as mentioned at serial No. 2, 3, 5 and 6 of the arrest cum personal search memo Ex.PW1/H. Investigating Officer did not feel the necessity of obtaining Call Detail Records (CDR) of the said fine SIM cards as if he was contended with the recovery. Examination of such Call Detail Records would have enabled the CBI to proceed further in the matter so as to ascertain the source and destination of supply.
141. According to PW-2 Insp. Vijay Kumar Shukla, he had recorded disclosure statement of the accused Wasim Raja. The said disclosure statement is not filed in this case. The prosecution has not been able to put forth any plausible reason for withholding of the disclosure statement.
FIR No. RC SIB 2008 E 2009 State Vs. Wasim Raja Page No. 52 of 60
142. A bare perusal of deposition of PW-12 Insp. V. Balasubramanian disclosed that he has not done any investigation in this matter except producing the accused Wasim Raja before the Court and seeking five days remand from the Court. There is no material on record as to what efforts were made during the said five days to ascertain the source and destination of the supply of heroin.
143. Relevant portion of the deposition of PW-12 Insp. V. Balasubramanian is as under:-
"The investigation of the case was entrusted to me by Sh. Anurag, the then SP/EOU-V CBI. During the course of investigation, I produced the accused before the Court on 12.11.2008 before the Duty Magistrate and obtained one day PC remand with the direction to produce the accused before the Court on 13.11.2008. I again produced the accused before the Court on 13.11.2008, and obtained PC remand for 5 days. During the course of investigation, the accused disclosed that he could identify the person from whom he had received the consignment of heroin, at Amritsar. I alongwith other members of the CBI team proceeded to Amritsar but accused could not identify the person from whom he had received the consignment of heroin. The name and address of the said person was not disclosed by the accused. We came back from Amritsar probably on 16.11.2008. The accused was produced in the Court and was remanded to JC."
In his cross-examination, he stated as under:-
"I do not remember the place in Amritsar where we were taken by the accused. We had not stayed in Amritsar for investigation of this case. We had visited Amritsar, alongwith the accused, in search of the supplier Lali. We had not informed the local police about our visit. I had recorded the statement of father and brother of accused."
FIR No. RC SIB 2008 E 2009 State Vs. Wasim Raja Page No. 53 of 60
144. It is therefore, evident that according to PW-12 Insp. V. Balasubramanian, the accused was taken to Amritsar and brought back from Amritsar on 16.11.2008. He has not produced any disclosure statement of the accused Wasim Raja. He has not shown any permission from senior officers of CBI regarding visit of CBI team under his supervision to Amritsar. He could not state the places where the accused had taken the CBI team. He has admitted that the local police was not informed. There is nothing in his deposition to prove that the CBI team infact visited Amritsar in connection with investigation of this case alongwith the accused Wasim Raja.
145. In Rajesh Kumar @ Sanjay v. State of NCT Delhi, 2014 [3] JCC [Narcotics] 156; Hon'ble Delhi High Court held as under:-
"8.....The origin of the ganja allegedly recovered from the possession of the appellants could not be ascertained. Nothing emerged during investigation as to for whose benefit this ganja was meant for. The appellants were not involved in any other such criminal activity prior to the incident. It was imperative for the investigating officer to investigate as to from which source, at what time/date and for what price the ganja was procured. It was also not investigated as to whom ganja was to be disposed of or sold. Allegedly two mobile phones were recovered from the possession of the appellants, however, for the reasons best known to the investigating officer, no call details of the mobile phones were recovered to find out if the appellants remained in regular touch with each other and someone to whom they wanted to sell the ganja in question....."
FIR No. RC SIB 2008 E 2009 State Vs. Wasim Raja Page No. 54 of 60 Point No. 8:- Search operation is doubtful
146. There are strong reasons to doubt the search operation. The reasons are as under:-
(a) The mode of the search operation is highly suspicious. According to PW-2 Insp. Vijay Kumar Shukla, The CBI team waited for the opening of the main gate of the house and the moment, the main gate was opened they entered into the house and rushed to the room of the accused Wasim Raja on the first floor of the house. In his cross-examination, he has admitted that he was not having the photograph of the accused Wasim Raja at that time. It is quite unusual that a CBI team would enter into a house having more than 10 members without disclosing their identity and rush to a particular room of the house in search of a person who was not known to any member of the CBI team.
(b) According to PW-2 Insp. Vijay Kumar Shukla, he had the specific information about the presence of the accused Wasim Raja on the first floor of the house as well as the contraband in one room on the first floor of the house. It is quite unnatural that the CBI team taken about 5 hours to recover the contraband from a room in which they entered at 7.00 a.m.
(c) Statement of any member of the family regarding the exclusive possession of the accused Wasim Raja in respect of the room from where the contraband was recovered, not recorded.
(d) Though several documents were prepared at the spot but none of the document was signed by any member of the family of the accused Wasim Raja. If father of the accused Wasim Raja or his brother etc were not signing the documents, there is no explanation as to why Sh. Shahid Ahmed, father of the accused signed the intimation of the arrest Ex.PW2/5.
If he could sign this document, he could have signed other documents also.
(e) The exact place from where a sum of Rs.
1,50,000/- was recovered not deposed by anyone.
FIR No. RC SIB 2008 E 2009 State Vs. Wasim Raja Page No. 55 of 60
(f) It is quite unnatural that a person who has just risen from the bed would be carrying PAN card, Election I- card, Driving License, Debit cards, Two mobile phone and three SIM and a purse with him.
(g) According to PW-1 Bhrigu Das, there was one more person with the accused Wasim Raja with his room. No other witness deposed anything in this regard.
(h) According to PW-6 Dy. S.P. Basil Karketta, the accused Wasim Raja was called by his father and he came downstairs from the first floor of the house. No other witness deposed to this effect.
(i) There is no explanation as to why PW-2 Insp. Vijay Kumar Shukla did not prepare the documents on the spot. His explanation is that he had pain in his hand. If this is so. Why he recorded the disclosure statement.
(j) Why the disclosure statement not produced before the Court.
(k) Presence of PW-6 Dy. S.P. Basil Karketta is doubtful, as already discussed above.
(l) There are contradictions in the depositions of the members of the CBI team and the independent witnesses regarding testing, weighing, sampling and sealing of the sample parcels and main consignment.
Point No. 9:- Compliance of section 50 of the NDPS Act
147. The case of the prosecution was that the recovery was effected from a special cavity created in the cupboard of the bedroom of the accused Wasim Raja on the first floor of the house. No recovery was effected from the personal search of the accused Wasim Raja. In such case where the recovery was not effected from the person of the accused but from his house, section 50 of the NDPS Act is not applicable. The fact that a notice under section 50 of the NDPS Act was given is irrelevant.
FIR No. RC SIB 2008 E 2009 State Vs. Wasim Raja Page No. 56 of 60 Point No. 10:- Compliance of section 42 of the NDPS Act
148. On 10.11.2008, PW-2 Insp. Vijay Kumar Shukla reduced the secret information into writing vide SIR Ex.PW2/1 and submitted it to PW-10 S.P. Anurag who authorised him to conduct the search operation vide authorisation dated 10.11.2008 Ex.PW2/2. Therefore, PW-2 Insp. Vijay Kumar Shukla conducted the search after obtaining search authorisation Ex.PW2/2 from PW-10 SP Anurag, who is an empowered officer under section 41 (2) of the NDPS Act. The prosecution has complied with section 42 of the NDPS Act. Point No. 11:- Compliance of section 57 of the NDPS Act
149. On 11.11.2008, PW-2 Insp. Vijay Kumar Shukla submitted the special report Ex.PW2/6 regarding the seizure and arrest of the accused Wasim Raja to the office of PW-10 SP Anurag. The said special report was perused by SP Anurag. There is compliance of section 57 of the NDPS Act. Point No. 12:- Non-compliance of section 52 of the NDPS Act
150. PW-2 Insp. Vijay Kumar Shukla was the seizing and arresting officer. If he was invested with the power of an officer in-charge of a police station than he should have produced the accused Wasim Raja and the case property before the officer immediately superior to Dy. S.P. Basil Karketta. Though the provision under section 52 of the NDPS Act is a directory in nature. However, it does not mean that it should not be followed at all. Non-observance of section 52 of the NDPS Act is a suspicious circumstance against the prosecution.
FIR No. RC SIB 2008 E 2009 State Vs. Wasim Raja Page No. 57 of 60 Point No. 13:- Non-compliance of section 55 of the NDPS Act
151. PW-2 Insp. Vijay Kumar Shukla deposited the case property in the malkhana of the CBI. He had not produced the case property before PW-10 Anurag, Supdt. of Police (CBI) or any other senior officer. He had not produced the case property and the samples before the Magistrate. Non-compliance of section 55 of the NDPS Act would be an additional factor to doubt the veracity of the case of the prosecution. In Dharmabir v. The State of Haryana (supra); Hon'ble Punjab and Haryana High Court held as under:-
"In the instant case, there was violation of the provisions of Section 55 of the Act, as the case property and the sample were not produced before the Magistrate. Section 55 of the Act, lays down that an Officer In-charge of 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. The perusal of the provisions of Section 55 of the Act, clearly reveals that the case property and the sample are required to be produced before the Magistrate, so as to ensure, that there was no false implication of the accused, and that accused. No doubt, the provisions of Section 55 of the Act are directory, in nature, yet that does not mean that the same should be deliberately and intentionally breached. Had any explanation been furnished, by the Investigating Officer, as to what prevented him, from producing the case property, before the Illaqa Magistrate, immediately after the search and seizure, the matter would have been considered, in the light FIR No. RC SIB 2008 E 2009 State Vs. Wasim Raja Page No. 58 of 60 thereof, but in the absence of any explanation, having been furnished, by the Investigating Officer, in this regard, the Court cannot coin any of its own, to fit in with the prosecution case. Since, there was deliberate and intentional breach of the provisions of Section 55 of the Act, by the Investigating Officer, the same cannot be condoned. In Gurbax Singh v. State of Haryana, 2001 (1) JCC 144 : 2001 (1) RCR (Crl.) 702 (S.C.), it was held that non-compliance of the provisions of Section 52, 55 and 57, which are, no doubt, directory and violation thereof, would not ipso- facto violate the trial or conviction. However, the Investigating Officer cannot totally ignore these provisions, and, as such, failure will have bearing on the appreciation of evidence, regarding search and seizure of the accused. The principle of law, laid down, in the aforesaid authority, is fully applicable to the facts of the instant case. As stated above, the Investigating Officer, intentionally and deliberately breached the provision of Section 55. He could not say that since the provision of Section 55 are directory, in nature, he was not bound to comply with the same. If such a stand of the Investigating Officer is taken, as correct, then the provisions of the Act, which are directory, in nature, would be flouted with impunity, by him. Compliance of the said provisions, is an indicator, towards the reasonable, fair and just procedure, adopted by the Investigating Officer, during the course of search and seizure. Non-compliance of such a provision, deliberately and intentionally, must be viewed with suspicion. Legitimacy of the judicial procedure, may come under cloud, if the Court seems to condone acts of violation of statutory safeguards, committed by an authorized officer, during search and seizure operation. Such an attitude of the investigating agency, cannot be permitted. Intentional and deliberate breach of the provisions of Section 55, certainly caused prejudice, to the accused, and cast a doubt on the prosecution story. The trial Court did not take into consideration, this aspect of the matter, as a result whereof, miscarriage of justice occasioned."
FIR No. RC SIB 2008 E 2009 State Vs. Wasim Raja Page No. 59 of 60 Conclusion:-
152. In view of the aforesaid discussion, this Court is of the considered opinion that the prosecution has failed to prove the charge under section 21 (c) of the Narcotic Drugs and Psychotropic Substances Act, 1985.
153. The accused Wasim Raja is hereby acquitted from the charge under section 21 (c) of the Narcotic Drugs and Psychotropic Substances Act, 1985.
Announced in the open court SANJAY SHARMA on this 23rd day of April, 2015. Special Judge NDPS (North-East) ASJ:KKD Courts, Delhi.
FIR No. RC SIB 2008 E 2009 State Vs. Wasim Raja Page No. 60 of 60