Delhi District Court
State vs Mehmood Shah on 20 August, 2024
FIR No. 68/07 PS Spl. Cell
IN THE COURT OF SUDHIR KUMAR SIROHI:ASJ (SPECIAL
JUDGE) (NDPS ACT): NEW DELHI DISTRICT: PATIALA HOUSE
COURTS:NEW DELHI
SC No. 203/2024
ID No. 02403R0119532008
CNR No. DLND01-004555-2024
FIR No. 68/2007
PS Special Cell
u/s 21 NDPS Act
State Vs. Mehmood Shah
S/o Sh Mohd. Zahir
R/o C-68, Lajpat Nagar II,
New Delhi.
Date of Institution : 08.02.2008
Judgment reserved on : 14.08.2024
Date of pronouncement : 20.08.2024
JUDGMENT
This judgment is delivered against accused Mehmood Shah and two persons namely Rasheed Abisoye and Sunday Baba Tunde have already been acquitted by the Ld Predecessor vide judgment dated 28.07.2012.
1. The charge-sheet in the present case has been filed against the aforementioned accused u/s 21 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as "NDPS Act").
2. Briefly stated the allegations against the accused, as contained in the charge-sheet are as follows: Digitally signed SUDHIR by SUDHIR KUMAR KUMAR SIROHI Date:
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(a) It is asserted that on 3/10/2007 at about 4:20 PM SI Satender Kumar Singh received a secret information that one Afghani national aged about 20/22 years would be coming near gali no. 13, Govind Puri at about 6:00 pm. to supply heroin to a Nigerian Citizen. The said information was reduced in the daily diary vide DD no. 10 and was produced before the ACP and also discussed with him and Insp. Devender Singh.
(b) A raiding party was constituted as per the instructions of the ACP consisting of SI Satender Kumar Singh, SI Mohd. Mobin, ASI Rakesh Kumar, HC Naresh, HC Balraj, HC Devinder, Ct. Yashpal, Ct.
Rajesh under the supervision of Insp. Devinder Singh. The said team alongwith secret informer left the police station Special Cell for the spot in two private vehicles.
(c) On the way IO SI Satender Kumar Singh is stated to have requested 5-6 passersby at Sarai Julena Stop and 5-6 public persons at Balmiki Chowk Govindpuri to join the raiding party but none of them is stated to have agreed. The vehicles were parked at road side on Ravi Das Marg. The members of the raiding party were briefed by Devinder Singh and were deployed at different positions and at about 5:45 PM two persons, aged 25-58 years having African looks and dark complexioned, came from the side of Gali no. 13, Govindpuri and stood in the parking and started waiting for someone. After 10 minutes, an Afghanistan national, having white complexion aged about 20-22 years and carrying an orange polythene in his right hand came from the side of Rampur, Kalkaji and he too after crossing the Ravidas Marg entered into parking SC No. 203/2024 SUDHIR by Digitally signed SUDHIR Page 2 of 22 KUMAR SIROHI KUMAR Date:
SIROHI 2024.08.20 16:48:12 +0530 FIR No. 68/07 PS Spl. Cell area. The aforementioned three persons were identified by the secret informer as the suspects. The Afghani looking person then took out two packets from the orange coloured polythene that he was carrying in his right hand and handed over one packet each to the dark complexioned persons. At this stage, assertedly one of the dark complexioned man saw the members of the raiding team approaching and jumped from the iron railing mounted on the wall of parking place. He was however apprehended by the police officials. On enquiry, the Afghani looking person revealed his name as Mehmood Shah, the African person who had jumped from the parking railing revealed his name as Rasheed Abisoye and the other dark complexioned person revealed his name as Sunday Baba Tunde.
(d) The IO is stated to have introduced himself and the other members of the raiding party to the accused Mehmood Shah, Rasheed Abisoye and Sunday Baba Tunde and are also stated to have apprised the accused Mehmood Shah, Rasheed Abisoye and Sunday Baba Tunde of the secret information received. It is further asserted that the accused Mehmood Shah, Rasheed Abisoye and Sunday Baba Tunde were also then served with the notices u/s 50 NDPS Act. Since the accused Mehmood Shah, Rasheed Abisoye and Sunday Baba Tunde are stated to have refused to be searched in the presence of the Gazetted Officer and Magistrate, they were searched by the IO himself. It is asserted that on search, Rasheed and Baba Tunde were found in possession of one packet each containing 1.010 kg. and 1.025 kg. cream colour powder respectively.
Accused Mehmood Shah was found in possession of two packets mark SC No. 203/2024 Page 3 of 22 SUDHIR Digitally by SUDHIR signed KUMAR Date: 2024.08.20 KUMAR SIROHI SIROHI 16:48:21 +0530 FIR No. 68/07 PS Spl. Cell which were concealed in the orange packet held by him. The big packet was found containing 1.025 kg. and small packet was containing 610 gm. of cream colour powder. All the four packets recovered from the possession of accused Mehmood Shah, Rasheed Abisoye and Sunday Baba Tunde, on testing with the help of field testing kit, gave positive result for heroin. Samples were then drawn out from each of the packets and the remaining substances were sealed in separate pullandas, the FSL Form was filled, seal after use was handed over to SI Mohd. Mobin. Accused Mehmood Shah was also found in possession of Rs. 3 lakhs in cash containing 400 notes of Rs.500/- and 100 notes of Rs.1000/- denomination and the same were also seized. The rukka was prepared and was sent to PS for registration of the case.
(e) Further investigation of the case was then conducted by SI Satender Sangwan, who had come to the spot after the case was entrusted to him. During further investigation SI Satender Sangwan prepared the site plan and formally arrested the accused Mehmood Shah, Rasheed Abisoye and Sunday Baba Tunde and seized mobile phones bearing no. 9971576882 from Rasheed Abisoye and 9971817431 and 9873263778 from accused Mehmood Shah. The remaining proceedings were completed at the spot and the accused were produced before the SHO concerned and the case property was deposited in the Malkhana. During investigation, Sunday Baba Tunde led the police party to this rented house at 1433 A/13, Govindpuri, Kalkaji, New Delhi and from there, his passport was recovered.
(f) On 30/10/2007, samples taken out from the substance were sent
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signed by
SUDHIR
SUDHIR KUMAR
KUMAR SIROHI
Date:
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to FSL through HC Naresh Kumar.
3. On the basis of the aforementioned allegations and the material placed on record by the investigating agency, charges were framed against accused Mehmood Shah, Rasheed Abisoye and Sunday Baba Tunde vide order dated 16.04.2008 for the offence punishable u/s 21 NDPS Act.
4. The Prosecution in order to prove its case against the remaining two accused persons has examined 16 witnesses in all. (including one numbered 14A).
5. PW1 Insp. Satender Kumar Singh, PW5 HC Balraj Singh, PW8 Insp. Devender Singh and PW10 Mohd. Mobin, being all members of the raiding team have deposed on similar lines. They have supported the assertions made in the charge sheet. All of them have described in detail the search and seizure proceedings conducted with respect to accused persons Rasheed Abisoye, Sunday Baba Tunde and Mehmood Shah on 3/10/2007. They have also in particular deposed that it was PW1 SI Satender Kumar Singh who had issued notices u/s 50 NDPS Act and had served it upon the accused persons. Notices u/s 50 NDPS Act issued to accused Rasheed Abisoye, Sunday Baba Tunde and Mehmood Shah have been exhibited as Ex.PW1/A, ExPW1/C and Ex.PW1/E respectively. The seizure memos with respect to recoveries from accused Rasheed Abisoye, Sunday Baba Tunde and Mehmood Shah have been proved as Ex.PW1/G, Ex.PW1/H, Ex.PW1/J and Ex.PW1/I respectively. Rukka prepared by PW1 has been proved as Ex.PW4/D. The report prepared by him u/s 57 NDPS Act has been exhibited as Ex.PW6/A.
6. PW2 Sh. Iqbal Singh has interalia deposed that on 24/4/2006 he had SC No. 203/2024 Page 5 of 22 Digitally signed SUDHIR by SUDHIR KUMAR KUMAR SIROHI Date: 2024.08.20 SIROHI 16:48:40 +0530 FIR No. 68/07 PS Spl. Cell given third floor of his house on rent to Jaheer Shah and had prepared a lease agreement regarding the said tenancy and that Jaheer Khan was residing in the said premises along with son Ahmed Mehmood Nadir, his wife and his brother. This witness had identified accused Mehmood Shah as Ahmed Mehmood Nadir.
7. PW3 Sh. Om Prakash has interalia deposed that on May, 2007 he had executed a lease agreement with Rasheed, Onuekwusi Ogueri John and Aremustaeven with respect to first floor situated at H.No. 1433-A, Street no. 13, Govind Puri, Kalkaji. He had identified accused Rasheed and has further deposed that accused Sunday Baba Tunde was also residing along with Rasheed in the aforementioned tenanted premises.
8. PW4 SI Mohan Lal has deposed that he was the duty officer on 3/10/2007 and that on this date he had received the rukka of the present case through PW5 HC Balraj and had registered the FIR, Ex.PW4/A and had made endorsement on the rukka, Ex.PW4/B.
9. PW6 SI Diler Singh has deposed that he was posted as Reader to ACP. As per the record produced by this witness, on 4/10/2007 PW8 Insp. Devinder Singh had forwarded the reports u/s 57 NDPS Act regarding the recovery and arrest of accused persons prepared by SI Satender Singh, to the office of ACP and that the said reports were put before the ACP and entry was made in the register. The copy of the reports produced by this witness have been duly exhibited during his testimony as Ex.PW6/A and entry ExPW6/B.
10. PW7 ASI Naresh Kumar has deposed that on 30/2/2007 on the directions of senior officials, he had taken four pullandas from MHC(M) SC No. 203/2024 Digitally Page 6 of 22 signed by SUDHIR SUDHIR KUMAR KUMAR SIROHI SIROHI Date:
2024.08.20 16:48:52 +0530 FIR No. 68/07 PS Spl. Cell vide RC no. 114/21/07 and deposited the same with FSL, Rohini. He has also specifically deposed that so long as the case property remained with him, it was not tampered with.
11. PW9 Insp. Satender Sangwan, second investigating officer of the present case has interalia deposed that after the registration of the FIR and on the instruction of PW8 he had gone to the spot on 3/10/2007 and that PW1 had produced the accused persons before him. According to him he had prepared site plan Ex.PW1/N at the instance of PW1 SI Satender Kumar Singh and he had then interrogated and arrested all the accused persons. The disclosure statements of the accused persons Rasheed Abisoye, Sunday Baba Tunde and Mehmood Shah asserted to have been recorded by him have been exhibited as Ex.PW1/L, ExPW1/K and Ex.PW1/N respectively. He has also deposed that on the personal search of all the accused persons the original copy of notice u/s 50 NDPS Act were recovered. He has further deposed that mobiles of accused Mehmood Shah and Rasheed Abisoye were seized by him vide memo ExPW8/A and B respectively and that he had also collected the call details and rent agreements of accused Mehmood Shah, Rasheed and Sunday Baba Tunde from their mobile companies and then landlords. As per his deposition, after the completion of the proceedings at the spot he produced all the accused persons before SHO and thereafter deposited the articles recovered from the personal search of the accused persons with the MHC(M).
12. PW11 Sh. R.K. Singh, Nodal Officer, Bharti Airtel Ltd. has placed before the court the call details record of mobile no. 9971576882 for the SC No. 203/2024 Page 7 of 22 Digitally signed SUDHIR by SUDHIR KUMAR SIROHI KUMAR Date:
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period 25/9/2007 to 4/10/2007. The said record has been exhibited as Ex.PW11/C. The subscriber enrollment form of this number has also been produced by this witness and has been exhibited as Ex.PW11/A. As per the said document the name of the subscriber of the aforementioned mobile number is Rasheed Alao Abisoye r/o 1700/3 Govindpuri Extension, Kalkaji, new Delhi.
13. PW12 Insp. Parasnath, SHO P.S. Special Cell has inter alia deposed that on the intervening night of 3/4 October, 2007 at about 11:00 PM, HC Balraj came to his office and handed over to him seven pullandas, three carbon copy of seizure memos and FSL forms. According to this witness, all the seven pullandas and the FSL form were having one seal each with the initial of SKS and DKN and that he thereafter also put one seal each on the seven pullandas and the FSL form, with the initial of PNC. The said case property according to him was then deposited in the Malkhana. He has also deposed about the production of the accused persons before him.
14. PW13 ASI Paramjeet Singh has deposed that he was working as MHC(M) P.S. Special Cell, Lodhi Colony on 3/10/2007 and that on this date he was called by the SHO in his office and was handed over 7 pullandas, one FSL form and carbon copy of seizure memo and that he had deposited the same in Malkhana vide entry Ex.PW13/A. According to him on 4/10/2007 SI Satender Sangwan also deposited in the Malkhana the articles recovered from the search of the accused persons and one mobile phone of accused Rasheed Abisoye vide entry ExPW13/B. According to him on 6/10/2007 SI Satender Sangwan also deposited two SC No. 203/2024 Digitally signed Page 8 of 22 SUDHIR by SUDHIR KUMAR KUMAR SIROHI Date: 2024.08.20 SIROHI 16:49:12 +0530 FIR No. 68/07 PS Spl. Cell mobile phones belonging to Mehmood Shan vide entry Ex.PW13/C. He has further deposed that on 30/10/2007 the four sealed pullandas and FSL form were handed over to HC Naresh Kumar vide RC no. 114/21, Ex.PW13/H for depositing the same in FSL, Rohini and on 25/2/2008 four sealed parcels sealed with the seal of FSL Rohini were received in malkhana through SI Satender Sangwan vide entry no. ExPW13/F. According to this witness till the samples remained in his custody no one tempered with the same and the seal remained intact.
15. PW14 Dr. Madhulika Sharma, Assistant Director, CFSL, Rohini has deposed that on 30/10/2007, four parcels marked S1, S2, S3 and S4 alongwith FSL form and specimen seal impression were received in the FSL office and same were handed over to her for chemical examination. According to her, on the basis of chemical examination, Ex.S1 to ExS4 were found to contain diacetylmorphine to the extent of 48.5%, 48.8%, 54.3% and 31.1% respectively. The report prepared by her with respect to the said samples has been exhibited as Ex.PW14/A. It is also a matter of record that on the applications filed on behalf of the accused persons, fresh samples were taken out from the case property and sent for re- testing to the FSL by the Predecessor of this court. With respect to the analysis of the samples sent to her by the Predecessor of this court, Dr. Madhulika Sharma has deposed that on 28/10/2010, two paper parcels marked RT1 and RT2 sealed with the seal of SJ alongwith forwarding documents and specimen seal impression were received in the FSL office and same were handed over to her for chemical examination. According to her deposition on the basis of chemical, thin layer chromatography and SC No. 203/2024 Digitally signed by Page 9 of 22 SUDHIR SUDHIR KUMAR KUMAR SIROHI Date:
SIROHI 2024.08.20 16:49:22 +0530 FIR No. 68/07 PS Spl. Cell GC-MS examination, Ex.RT1 and ExRT2 were found to contain diacetylmorphine to the extent 14.12% and 27.0% respectively. The report prepared by her with respect to the said samples has been exhibited as Ex.PW14/B.
16. PW14 (A) Ct. Balwinder Singh has produced the original DD No.11A dated 3.10.07, DD No.10A dated 3.10.07 and DD No.12A dated 3/4.10.07 and the same have been exhibited as Ex.Pw14/A, Ex.Pw14/B and Ex.Pw14/C respectively. As per the record produced by him, DD No.11A was lodged by inspector Paras Nath, SHO PS Special Cell, Lodhi Colony on 3.10.07, DD No.10A was lodged by DO PS Special Cell, Lodhi Colony on 3.10.07 at about 11pm, DD 12A was lodged by DO PS Special Cell, Lodhi Colony on the intervening night of 3/4.10.07 at about1.15am.
17. PW15 Ct. Gurvinder Singh has produced the original DD No.10 dated 03.10.2007, DD No.11 dated 03.10.2007, DD No.14 dated 03.10.2007, DD No.19 dated 03.10.2007 and the same have been exhibited as Ex.PW15/A, Ex.PW15/B, Ex.PW15/C and Ex.PW15/D respectively. As per the record produced by him, DD No.10 was lodged by SI S.K. Singh at about 04.20 PM on 03.10.2007, DD No.11 was lodged by SI S.K. Singh on 03.10.2007 at about 04.35 PM, DD No.14 was lodged by DO on 03.10.2007 at about 09.40 PM and DD No.19 was lodged by SI Satender Sangwan on 03.10.2007 at about 04.20 PM.
18. The entire aforementioned evidence was put to accused Mehmood Shah and in his statement u/s 313 Cr.P.C, accused Mehmood Shah has stated that he was lifted from his house and has been falsely implicated, he does not know anyone in the name of Sunday Baba Tunde and Rasheed SC No. 203/2024 Page 10 of 22 Digitally signed by SUDHIR SUDHIR KUMAR KUMAR SIROHI Date:
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Abisoye.
Arguments:
19. Ld. Defence Counsel Mr Javed Khan has submitted that in the present case the recovery of the contraband from the accused Mehmood Shah is highly doubtful keeping in view that the case property produced in the court did not bear the seal of the SHO (PNC) at all and that therefore it is clear that the case property produced was not the one allegedly recovered from the accused persons. It is also the contention of Ld. Counsel for accused that the two inconsistent FSL reports available on judicial record amply make it clear that the case property has been tampered with and the sample in this matter was not drawn before Ld Magistrate u/s 52A NDPS Act nor the original inventory of seizure has been certified by Ld Magistrate, therefore, there is non compliance of section 52A NDPS Act and accused may be acquitted. Ld counsel for accused relied upon Yusuf @ Asif Vs State, Criminal Appeal no. 3191 of 2023 decided by Hon'ble Supreme Court of India on 13.10.2023 and Simarjit Singh Vs State of Punjab, SLP No. 1958/2023 dated 09.05.2023 of Hon'ble Supreme Court of India.
20. In rebuttal, Ld. APP for the State has contended that there is recovery of commercial quantity of contra-band from the accused Mehmood Shah and the amendment in section 52A NDPS Act was incorporated in 01.05.2014 and case is of 2007, therefore, section 52A NDPS Act is not applicable in this matter and prays for conviction of accused. Discussion:
21. Undersigned has carefully considered the submissions made by Ld. SC No. 203/2024 Page 11 of 22 Digitally signed SUDHIR by SUDHIR KUMAR SIROHI KUMAR Date:
SIROHI 2024.08.20 16:49:43 +0530 FIR No. 68/07 PS Spl. Cell Counsels of parties and has perused the entire record. Undersigned does has to agree with the contentions made on behalf of the accused for the following reasons:
(a) As per record, the case property was produced for the first time during the trial on 01.06.2010 when PW1 was being examined in chief.
As per the deposition of PW1, Inspector Satender Kumar, after the recovery of the contraband from the accused persons, the contraband recovered from the accused Rasheed was kept in a cloth pullanda and sealed with the seals of SKS and DSN and was given mark A. This witness has also deposed that the contraband recovered from the accused Sunday Baba Tunde was also put in a cloth pullanda and was sealed with the seals of SKS and DSN and was given mark B. Further as per the deposition of this witness, both pullandas mark A and B were given by him to HC Balraj to produce before the SHO. Now further as per the deposition of PW12 Inspector Paras Nath who was posted as SHO PS Special Cell on the date of the incident, HC Balraj produced the sealed case property which was bearing seal of SKS and DSN before him. According to his deposition, he wrote FIR number on all the pullandas produced before him and put his seal PNC on all the said pullandas. MHCM PW13 ASI Paramjeet Singh has also inter alia deposed that the sealed pullandas A and B bearing seal of SKS, DSN and PNC were deposited in the malkhana by the SHO. In his cross-examination, he has categorically deposed that the case property was stored in the malkhana with utmost care and special caution was taken to ensure that none of the seals affixed on the case property were broken or tampered with. From SC No. 203/2024 Digitally Page 12 of 22 signed by SUDHIR SUDHIR KUMAR KUMAR SIROHI SIROHI Date:
2024.08.20 16:49:50 +0530 FIR No. 68/07 PS Spl. Cell the above depositions, it is clear that the pullandas mark A and B should have been bearing seals of SKS, DNS and PNC however as pointed out by Ld. Defence Counsel, the case property when produced before the court on 01.06.2010 was not found having the seal of PNC and was shown to be only bearing seals of SKS and DSN. The contention of the Ld. APP that there has been an inadvertent error in recording of the evidence cannot be accepted at this stage. It even otherwise does not appear to have any merit for immediately after the case property was produced in court on 01.06.2010 and was not found having the seal of PNC, on behalf of the accused persons an application was filed praying therein that fresh samples be drawn from the case property and be sent for analysis. Notice of this application was given to the State and the Ld. Predecessor of this court vide order dated 01.09.2010 allowed the said application and took notice of the fact that the pullandas had only the seals of SKS and DSN.
Admittedly, the State did not challenge the said order and neither did it refute at that stage that it was the court which had not recorded the presence of the seal of PNC on the pullandas. In view of the aforementioned facts, it is clear that the prosecution does not have any explanation as to how the seal of PNC was found missing from the pullandas/case property produced in the court and this failure of the prosecution lends credence to the submission of the defence that the case property has been tampered with.
(b) The aforementioned contention of the accused also draws support from the two inconsistent FSL reports proved on record. As narrated hereinabove, on an application filed on behalf of the accused Digitally signed SC No. 203/2024 SUDHIR by SUDHIR Page 13 of 22 KUMAR KUMAR Date:
SIROHI SIROHI 2024.08.20 16:50:03 +0530 FIR No. 68/07 PS Spl. Cell persons, the samples of the contraband allegedly recovered from the accused persons was sent for re-testing to FSL vide orders of the Ld. Predecessor dated 01.09.2010. Now as per the first FSL report, Ex.PW14/A i.e. the report that was prepared with respect to the four samples sent to it during investigation, the said samples were found to contain acetylcodeine, monoacetylmorphine, diacetylmorphine and Dextromethorphan. It is also stated in the said report that the samples were found to be creamish yellow colour powder. However, with respect to the two samples drawn from the case property produced in the court, the FSL has reported vide Ex.PW14/B that they were found to contain Caffeine and diacetylmorphine. Thus, it is clear that the chemical constituents of the samples deposited during investigation and those drawn out from the case property during trial were not found out to be same. Dr. Madhulika Sharma, Deputy Director, FSL, Rohini who has prepared both the said reports was examined as PW14 and in her cross- examination she has specifically stated that it is not scientifically possible that Dextromethorphan or acetylcodeine or diacetylmorphine would get converted into caffeine and if all the samples tested by her were drawn from the same substance dextromethorphan and acetylcodeine should have been present even in the second test conducted by her. She was also specifically put a question on behalf of the defence to the effect whether it is possible in the present case that diacetylmorphine found in the first sample got degraded into monoacetylmorphine or morphine in the second sample and she categorically stated that it was not possible. In view of the said two reports and the deposition of the Chemical Examiner, it is to be SC No. 203/2024 Digitally signed Page 14 of 22 SUDHIR by SUDHIR KUMAR KUMAR SIROHI Date:
SIROHI 2024.08.20 16:50:15 +0530 FIR No. 68/07 PS Spl. Cell inferred that the samples sent to the FSL for the first time by the investigating agency could not have been drawn out from the contraband/case property that was produced before the court and from which a second sample was sent for re-testing. Ld. APP for the State has been at pains to explain the difference in the two FSL reports and it is evident that the case property in the present case has been tampered with.
(c) It has been contended on behalf of accused that there is no compliance of section 52A NDPS Act, while, Ld Addl. PP for State argued that it is a matter of year 2007 and amendment was introduced on 01.05.2014 therefore, section 52A NDPS Act is not applicable. Undersigned does not agree with the submissions of Ld Addl. PP as section 52A NDPS Act was incorporated on 29.05.1989, the amendment of 01.05.2014 was only w.r.t.
fact that the word 'such drugs or substances' was substituted by 'narcotic drug or psychotropic substance'. Moreover, the judgment of Yusuf (supra) by Hon'ble Supreme Court of India was passed in case Crime no. 113/2000 and the offence was dated 28.03.2000, therefore, Hon'ble Supreme Court of India has passed the Yusuf (supra) judgment in year 2000 matter.
In the present matter, PW1 Insp Satender Kumar Singh has deposed that 'thereafter the search of accused Mehmood Shah was taken. One orange colour polythene was recovered from his right hand. It has two transparent polythenes-one is small and one is big. The bigger one contained one cream colour powder. It was tested with field testing kit and it gave positive result of heroin. It was weighed and weight came to 1.025kg. One sample of 50gm was taken out from the transparent polythene powder.
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SUDHIR KUMAR
KUMAR SIROHI
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It was kept in transparent polythene and then in a cloth and sealed with seal of SKS. The remaining quantity in the polythene which was recovered were also kept in a cloth and sealed with seal of SKS. Insp Davinder Singh had put his counter seal of DSN on the sample and case property. Sample was given mark S3 and case property was given mark C.' Therefore, the sample S3 from the recovery of accused Mehmood Shah was drawn by PW1 Insp Satender Kumar Singh on the spot and PW13 Ex-ASI Paramjeet Singh had deposed that on 30.10.2007, he sent the sample mark S3 to FSL, Rohini.
In Simarjit Singh Vs State of Punjab, SLP No. 1958/2023 dated 09.05.2023 Hon'ble Supreme Court of India held as:-
5. The learned counsel appearing for the appellant relied upon a decision of this Court in the case of Union of India v.
Mohanlal & Anr. He submitted that the prosecution is vitiated as the work of drawing sample was done by PW-7 without taking recourse to sub-section 2 of Section 52A of the NDPS Act. He also pointed out that the examination-in-Chief of PW- 7 SI Hardeep Singh which shows that the samples were drawn immediately after the seizure.
6.The learned counsel appearing for the respondent-State supported the impugned judgments.
7.We have perused the evidence of PW-7 Hardeep Singhin which he has stated that from the eight bags of poppy husk, two samples of 250 gms each were drawn and converted into 16 parcels. This has been done immediately after the seizure.
8.In paragraphs 15 to 17 of the decision of this Court in Mohanlal's case, it was held thus:
"15.It is manifest from Section 52-A(2) include (supra) that upon seizure of the contraband the same has to be forwarded either to the officer-in-charge of the nearest police station or to the officer empowered under Section 53 who shall prepare an inventory as stipulated in the said provision and make an SC No. 203/2024 Page 16 of 22 SUDHIR Digitally by SUDHIR signed KUMAR KUMAR SIROHI Date: 2024.08.20 SIROHI 16:50:33 +0530 FIR No. 68/07 PS Spl. Cell application to the Magistrate for purposes of (a) certifying the correctness of the inventory, (b) certifying photographs of such drugs or substances taken before the Magistrate as true, and (c) to draw representative samples in the presence of the Magistrate and certifying the correctness of the list of samples so drawn.
16.Sub-section (3) of Section 52-A requires that the Magistrate shall as soon as may be allow the application. This implies that no sooner the seizure is effected and the contraband forwarded to the officer-in-charge of the police station or the officer empowered, the officer concerned is in law duty-bound to approach the Magistrate for the purposes mentioned above including grant of permission to draw representative samples in his presence,which samples will then be enlisted and the correctness of the list of samples so drawn certified by the Magistrate. In other words,the process of drawing of samples has to be in the presence and under the supervision of the Magistrate and the entire exercise has to be certified by him to be correct.
17.The question of drawing of samples at the time of seizure which, more often than not,takes place in the absence of the Magistrate does not in the above scheme of things arise. This is so especially when according to Section52-A(4) of the Act, samples drawn and certified by the Magistrate in compliance with sub-sections (2) and (3) of Section 52-A above constitute primary evidence for the purpose of the trial. Suffice it to say that there is no provision in the Act that mandates taking of samples at the time of seizure. That is perhaps why none of the States claim to be taking samples at the time of seizure."
9.Hence, the act of PW-7 of drawing samples from all the packets at the time seizure is not in conformity with the law laid down by this Court in the case of Mohanlal1.This creates a serious doubt about the prosecution's case that substance recovered was a contraband.
10.Hence, the case of the prosecution is not free from suspicion and the same has not been established beyond a reasonable doubt. Accordingly, we set aside the impugned SC No. 203/2024 SUDHIR Digitally signed by Page 17 of 22 SUDHIR KUMAR KUMAR SIROHI Date: 2024.08.20 SIROHI 16:50:42 +0530 FIR No. 68/07 PS Spl. Cell judgments insofar as the present appellant is concerned and quash his conviction and sentence.
In the judgment of Yusuf @ Asif Vs. State, Criminal Appeal No. 3191/2023 Hon'ble Supreme Court of India has held: "11. For the sake of convenience, relevant sub-sections of Section 52A of the NDPS Act are reproduced hereinbelow:
"52A. Disposal of seized narcotic drugs and psychotropic substances.-
(1)______ (2) Where any [narcotic drugs, psychotropic substances, controlled substances or conveyances] has been seized and forwarded to the officer-in-charge of the nearest police station or to the officer empowered under section 53, the officer referred to in subsection (1) shall prepare an inventory of such [narcotic drugs,psychotropic substances, controlled substances or conveyances] containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the [narcotic drugs,psychotropic substances, controlled substances or conveyances] or the packing in which they are packed, country of origin and other particulars as the officer referred to in subsection (1) may consider relevant to the identity of the [narcotic drugs, psychotropic substances, controlled substances or conveyances] in any proceedings under this Act and make an application, to any Magistrate for the purpose of(a) certifying the correctness of the inventory so prepared; or
(b) taking, in the presence of such Magistrate,photographs of [such drugs or substances or conveyances] and certifying such photographs as true; or(c) allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn.(3) Where an application is made under subsection (2), the Magistrate shall, as soon as maybe, allow the application.(4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872) or the Code of Criminal Procedure, 1973 (2 of 1974),every court trying an SC No. 203/2024 Page 18 of 22 Digitally signed SUDHIR by SUDHIR KUMAR SIROHI KUMAR Date:
SIROHI 2024.08.20 16:50:51 +0530 FIR No. 68/07 PS Spl. Cell offence under this Act, shall treat the inventory, the photographs of [narcotic drugs, psychotropic substances, controlled substances or conveyances] and any list of samples drawn under subsection (2) and certified by the Magistrate, as primary evidence in respect of such offence."
12.A simple reading of the aforesaid provisions, as also stated earlier, reveals that when any contraband/narcotic substance is seized and forwarded to the police or to the officer so mentioned under Section 53, the officer so referred to in sub- section (1) shall prepare its inventory with details and the description of the seized substance like quality, quantity,mode of packing, numbering and identifying marks and then make an application to any Magistrate for the purposes of certifying its correctness and for allowing to draw representative samples of such substances in the presence of the Magistrate and to certify the correctness of the list of samples so drawn.
13.Notwithstanding the defence set up from the side of the respondent in the instant case, no evidence has been brought on record to the effect that the procedure prescribed under sub-sections (2), (3) and (4) of Section 52A of the NDPS Act was followed while making the seizure and drawing sample such as preparing the inventory and getting it certified by the Magistrate. No evidence has also been brought on record that the samples were drawn in the presence of the Magistrate and the list of the samples so drawn were certified by the Magistrate. The mere fact that the samples were drawn in the presence of a gazetted officer is not sufficient compliance of the mandate of subsection (2) of Section 52A of the NDPS Act.
14.It is an admitted position on record that the samples from the seized substance were drawn by the police in the presence of the gazetted officer and not in the presence of the Magistrate. There is no material on record to prove that the Magistrate had certified the inventory of the substance seized or of the list of samples so drawn.
15.In Mohanlal's case, the apex court while dealing with Section 52A of the NDPS Act clearly laid down that it is manifest from the said provision that upon seizure of the SC No. 203/2024 Digitally signed Page 19 of 22 by SUDHIR SUDHIR KUMAR SIROHI KUMAR Date:
SIROHI 2024.08.20 16:51:00 +0530 FIR No. 68/07 PS Spl. Cell contraband, it has to be forwarded either to the officer-in- charge of the nearest police station or to the officer empowered under Section 53 who is obliged to prepare an inventory of the seized contraband and then to make an application to the Magistrate for the purposes of getting its correctness certified. It has been further laid down that the samples drawn in the presence of the Magistrate and the list thereof on being certified alone Union of India vs Mohanlal and Anr. (2016) 3 SCC 379 would constitute primary evidence for the purposes of the trial.
16. In the absence of any material on record to establish that the samples of the seized contraband were drawn in the presence of the Magistrate and that the inventory of the seized contraband was duly certified by the Magistrate, it is apparent that the said seized contraband and the samples drawn the refrom would not be a valid piece of primary evidence in the trial. Once there is no primary evidence available, the trial as a whole stands vitiated.
17. Accordingly, we are of the opinion that the failure of the concerned authorities to lead primary evidence vitiates the conviction and as such in our opinion, the conviction of the appellant deserves to be set aside. The impugned judgment and order of the High Court as well as the trial court convicting the appellant and sentencing him to rigorous imprisonment of 10 years with fine of Rs.1 lakh and in default of payment of fine to undergo further imprisonment of one year is hereby set aside."
In the present matter, the sample drawn by PW2 Mr. Pradeep Singh seizing IO were sent to CRCL and not the sample drawn before Ld. Magistrate as per Judgment of Simarjit (Supra) and Yusuf (supra), nor thereis any certificate of conrrectness of seizure inventory by Ld. Magistrate as per above referred judgments and Section 52A NDPS Act. In the case in hand, no 52A proceedings have been conducted, therefore, in absence of any material on record to establish that the samples of the seized contraband were drawn in presence of Ld. Magistrate and that the inventory of the seized SC No. 203/2024 Page 20 of 22 SUDHIR Digitally by SUDHIR signed KUMAR Date: 2024.08.20 KUMAR SIROHI SIROHI 16:51:09 +0530 FIR No. 68/07 PS Spl. Cell contraband was duly certified by Ld. Magistrate, it is apparent that seized contraband and samples drawn are not a valid piece of primary evidence in trial [reliance placed on Yusuf (supra) judgment]. When there is no primary evidence available w.r.t. samples of contraband, then the whole trial vitiates and on this sole ground the accused persons are entitle to acquittal but other pleas of Ld. Counsels for accused persons are also discussed.
22. Therefore, samples which were sent to FSL for forensic examination was drawn by seizing IO/PW1 Insp Satender Kumar Singh and these samples were not drawn before Ld. Magistrate nor there is any certificate of correctness of inventory of seizure memo by Ld. Magistrate as required under Section 52A NDPS Act and the said samples drawn before Ld. Magistrate would have been primary evidence w.r.t. contraband, therefore, there is violation of Section 52A NDPS Act and in absence of any primary evidence w.r.t. contraband, the trial stands vitiated as per Yusuf (supra) judgment.
23. During trial, accused Mehmood Shah was declared Proclaimed Offender vide order dated 07.12.2009 and charge u/s 174A IPC was framed against accused vide order dated 08.08.2024 and accused Mehmood Shah voluntarily pleaded guilty, therefore, on the basis of his voluntarily plea of guilt, the accused Mehmood Shah was convicted of the offence u/s 174 A IPC vide order dated 08.08.2024 and matter was proceeded qua offence u/s 21 NDPS Act against accused Mehmood Shah.
24. In view of the above discussion, this court is of the considered opinion that in the present case, the deposition of the prosecution witnesses is not SC No. 203/2024 Page 21 of 22 Digitally signed SUDHIR by SUDHIR KUMAR KUMAR SIROHI Date: 2024.08.20 SIROHI 16:51:18 +0530 FIR No. 68/07 PS Spl. Cell credible and it cannot be ruled out that the case property has been tampered with and there is violation of mandatory provisions of section 52A NDPS Act. Accordingly, accused Mehmood Shah is acquitted of the offence u/s 21 NDPS Act but accused has already been convicted of offence u/s 174A IPC.
25. List the matter for arguments on sentence against accused Mehmood Shah qua section 174A IPC on 22.08.2024. Digitally signed SUDHIR by SUDHIR KUMAR SIROHI Announced in open Court KUMAR Date:
on this 20th day of August, 2024 SIROHI 2024.08.20 16:51:28 +0530 (SUDHIR KUMAR SIROHI ) Special Judge NDPS : New Delhi Patiala House : New Delhi SC No. 203/2024 Page 22 of 22