Delhi High Court - Orders
Shailender vs State on 13 July, 2022
Author: Anoop Kumar Mendiratta
Bench: Anoop Kumar Mendiratta
$~11
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.M.C. 450/2022
SHAILENDER ..... Petitioner
Through: Mr.Kundan Kumar, Mr.Ankit and
Mr.Saheb-e-Alam, Advocates.
versus
STATE ..... Respondent
Through: Ms.Rajni Gupta, APP for the State
with SI Amit, P.S.: Hauz Qazi
CORAM:
HON'BLE MR. JUSTICE ANOOP KUMAR MENDIRATTA
ORDER
% 13.07.2022
1. Petition has been preferred on behalf of the petitioner under Section 482 Cr.P.C. for quashing of FIR No.07/2021, under Sections 21/61/85 of NDPS Act registered at Police Station: Hauz Qazi and the proceedings emanating therefrom.
2. In brief, as per the case of the prosecution, on 13.01.2021, a secret information was received in the office of Narcotics Squad, Central District, Kamla Market, Delhi by SI Ravinder that one Shailender is involved in the supply of heroin and would come to supply huge quantity of heroin near Deen Dayal Upadhyaya Market Gate between 11:30PM & 12:30AM and in case raid is conducted, he can be apprehended. The said information was conveyed by SI Ravinder to senior officers and was reduced into writing vide DD No.11 dated 13.01.2021. As per the directions of the senior officers, a raiding party was constituted and proceeded to the place of information. About 11:55PM, the petitioner was apprehended. Notice under Section 50 NDPS Act was served upon the petitioner and search was conducted in presence of ACP (Operations). During search, a black coloured bag Signature Not Verified Digitally Signed Crl.MC 450/2022 Page 1 of 5 By:DINESH CHANDRA Signing Date:03.08.2022 14:48:02 containing 24 plastic packets of pink colour substance were recovered from the possession of the petitioner. The same were checked with the help of Testing Kit and found to be heroin. The packets weighed 4 Kgs. 800 gms. Acordingly, FIR No.0007/2021 under Section 21 of NDPS Act was registered at PS: Hauz Qazi.
During the course of investigation, two samples were taken from the recovered substance by SDM, Karol Bagh as per proceedings under Section 52A NDPS Act. Further, as per FSL report, the samples were found to contain Diacetylmorphine (13.8%), monoacetylmorphine and trimethoprim.
3. Learned counsel for the petitioner submits that the petitioner has been falsely implicated and was lifted from Rithala Naala nearby Rithala Metro Station about 5:00-6:00 PM on 13.01.2021 by the raiding team. It is further urged that in view of the same, the Call Detail Records were requested to be preserved and analysed and an application in this regard had been moved under Section 91 of NDPS Act. It is also urged that upon inquiry by the senior officers, investigation of the case was transferred from District Narcotic Cell to PS: Hauz Qazi. The sampling procedure adopted by the prosecuting agency is further stated to have vitiated the entire proceedings.
It is further contended that the contents of 24 packets allegedly recovered were put into one packet and thereupon the samples were drawn against the mandate of observations of the Hon'ble High Court of Delhi in Basant Rai v. State, 2012 (3) JCC 138 (Narcotics), Crl. Appeal No.909 of 2005 passed on 02.07.2012. As such, it is also urged that at the best, only a case for recovery of 200 gms. could be made out which does not fall within the commercial quantity. Reliance is further placed upon the judgments Signature Not Verified Digitally Signed Crl.MC 450/2022 Page 2 of 5 By:DINESH CHANDRA Signing Date:03.08.2022 14:48:02 passed in Gaunter Edwin Kircher v. State of Goa, Scretariat, Panji, Goa, 1993(2) SCR 337; Javed A. Bhat v. UOI, 2007 Crl.L.J. 3145; Ahmed Hassan Muhammed v. The Customs, 2021(2) JCC 1187 and Pardeep Kumar Gupta v. State of Delhi, BAIL APPLN 2865/2020 decided by High Court of Delhi on 15.01.2021.
4. On the other hand, the application has been vehemently opposed by the learned APP for the State. It is submitted that the contentions raised by learned counsel for the petitioner disputing the conduct of raid and recovery is baseless. It is further submitted that the presence of SI Ravinder at Rithala was in pursuance of investigation of FIR No.192/19 under Section 20/61/85 of NDPS Act registered at PS: Kamla Market, Delhi. It is pointed out that departure of SI Ravinder in the aforesaid FIR No.192/19 was duly recorded vide DD No.06 dated 13.01.2021 and arrival was recorded vide DD No.10 dated 13.01.2021 about 8:30PM. The claim of the petitioner that he was lifted prior to conduct of raid, as such, is vehemently opposed. It is further submitted that subsequent conduct of proceedings in respect of receipt of information and apprehension of petitioner is further separately corroborated by DD No.11 dated 13.01.2021 as well as DD No.12 regarding departure of raiding party at 10:55PM in the proceedings in the present case. It is also pointed out that petitioner was earlier involved in excise case bearing FIR No.625/2002 under Section 61/1/14 Excise Act registered at PS: Sultan Puri, Delhi.
So far as the recovery and sampling of the contraband is concerned, it is submitted that each of the packets was tested with Field Testing Kit, which on the basis of physical properties was found to be heroin. It is submitted that Signature Not Verified Digitally Signed Crl.MC 450/2022 Page 3 of 5 By:DINESH CHANDRA Signing Date:03.08.2022 14:48:02 merely because the contents of 24 packets were mixed thereafter for the purpose of obtaining the sample, it cannot be presumed that entire proceedings stand vitiated. It is urged that even in the order passed by the learned Trial Court dated 07.09.2021, it has been observed as under :-
"...........Even if for the sake of arguments, it is presumed that accused/applicant is liable for possession of one packet only, even then accused/applicant is not entitled to bail as a matter of right. 200 grams of heroin is more than small quantity but less than commercial quantity. The facts and circumstances of the present case are very different from the facts and circumstances of the cases upon which reliance has been placed by Ld. Counsel for accused/applicant. The other contentions raised by Ld. Counsel for accused/applicant are a matter of trial......."
5. I have given considered thought to the contentions raised.
For the purpose of quashing of the complaint/FIR, it is necessary to consider whether the allegations in the complaint/FIR prima facie make out an offence or not. It is not necessary to scrutinize the allegations for the purpose of deciding whether such allegations are likely to be upheld in the trial. Any action by way of quashing the complaint/FIR is an action to be taken at the threshold before evidences are led in support of the complaint/FIR. For quashing the complaint/FIR by way of action at the threshold, it is, therefore, necessary to consider whether on the face of allegations, a criminal offence is constituted or not.
The case is pending at the stage of charge before the learned Trial Court. On the basis of evidence on record, at this stage, it cannot be concluded that accused/petitioner has been falsely implicated. The defence taken by the petitioner, on the basis of call detail records of raiding party, can Signature Not Verified Digitally Signed Crl.MC 450/2022 Page 4 of 5 By:DINESH CHANDRA Signing Date:03.08.2022 14:48:02 be duly established at the stage of defence evidence during the course of trial.
Prima facie, the substance recovered in each packet was of similar texture, colour and tested positive on field testing kit. Admittedly, as observed by the learned Trial Court, even if an irregularity is assumed in the sampling procedure, the possession of heroin to the extent of 200 gms. in one of the packets, cannot be doubted in view of FSL results. Further, the circumstances under which the sampling procedure could not be followed as per the mandate, duly needs to be considered after the evidence has been led on record and the FSL expert is examined. At this stage, it cannot be held that no offence is disclosed or the petitioner has been falsely implicated.
Petition is accordingly dismissed, without prejudice to the rights and contentions of the petitioner, if any, to be raised at the stage of charge before the learned Trial Court.
ANOOP KUMAR MENDIRATTA, J.
JULY 13, 2022/R Signature Not Verified Digitally Signed Crl.MC 450/2022 Page 5 of 5 By:DINESH CHANDRA Signing Date:03.08.2022 14:48:02