Delhi District Court
State vs . on 13 January, 2023
IN THE COURT OF SHRI ARUL VARMA, ASJ-04 AND
SPECIAL JUDGE (NDPS) SOUTH-EAST: SAKET COURTS: NEW
DELHI
SC No. 114/17
FIR No. 192/16
U/s 20 (b)(ii)(C)NDPS Act
P.S. Crime Branch
State
Vs.
Raghupati @ Sonu
S/o Sh. Munnu Swami,
R/o E-22, Phase-II, Sector-3,
Dwarka, Delhi
Permanent R/o Village Naripalli,
Harur, Post Tirtamalai, PS Kottapaati,
Distt. Dharmapuri, Tamil Nadu
........ Accused
Date of Institution : 08.03.2017
Date of reserving the Judgment : 14.10.2022
Date of Judgment : 13.01.2023
JUDGMENT
1. The accused herein has been arraigned for trial for allegedly committing an offence u/s 20 of the Narcotics Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as the 'Act'), as he was found in possession of 30kgs Ganja on 01.12.2016 at around 6:20 PM near DTC Bus Terminal, H. N Din Railway Station.
FACTS IN BRIEF / CASE SET UP BY THE PROSECUTION
2. The facts as alleged by the prosecution as per police report u/s 173(2) CrPC and evidence on record, are hereby recapitulated: It was alleged FIR No. 192/16 State Vs. Raghupati @ Sonu Page No. 1/48 that on 01.12.2016 at about 4.30 pm, one secret informer reached the office of PW-10 IO/SI Omvir Dabas and informed him that a person namely Raghupati @ Sonu local resident of Sector-3, Dwarka, New Delhi, who indulges in supply of ganja from Andhra Pradesh and Orissa to Delhi by train, would come near Nizamuddin Railway Station between 06.00 / 07.00 PM on the same day, with a huge quantity of ganja to deliver the same to somebody. After making inquiries from the secret informer, and on being satisfied, PW 10 IO/SI Omvir Dabas produced the secret informer before PW 8 Inspector Jai Bhagwan at about 4.45 PM, who was also present in the office. IO told him about the secret information. PW-8 Inspector Jai Bhagwan also interacted with the secret informer, and after satisfying himself about the information, shared the information with the then ACP Sh. Sanjeev Kumar Tyagi by going to the latter's office. The ACP directed PW 8 Inspector Jai Bhagwan to take necessary action on the said information as per law and to conduct a raid.
3. The secret information received by PW 10 SI Omvir Dabbas was reduced in writing at 5:10 PM vide DD No.14 already Ex. PW-1/A for compliance of Section 42 NDPS Act. The said DD entry was handed over to PW 8 Inspector Jai Bhagwan, who forwarded the same to the ACP in compliance of section 42 of the NDPS Act.
4. Thereafter, PW 10 IO/SI Omvir Dabas constituted a raiding party FIR No. 192/16 State Vs. Raghupati @ Sonu Page No. 2/48 comprising of PW 11 HC Ramesh, PW 2 Ct. Vijay and himself and apprised the raiding party members about the secret information. Thereafter he took IO bag, field testing kit, spring weighing scale and electronic weighing machine and they, along with the secret informer, left the office by Government gypsy bearing No. DL1CM-1344 driven by driver Ct. Pankaj . The factum of raiding party leaving was recorded vide departure entry DD No. No.15 Ex PW 10/X lodged at about 5.30 PM.
5. The raiding party and secret informer reached the place of apprehension i.e near DTC Bus Terminal, Nizamuddin Railway Station at about 6.10 PM. In between IO had requested some public persons at Shanti Van Bus Stand, in front of Millenium Bus Depot and Nizamuddin Footover Bridge to join the raiding party after apprising them about the secret information but none agreed and left without disclosing their names and addresses. As soon as they reached and stationed their gypsy near DTC Bus Terminal, Nizamuddin Railway Station, secret informer pointed out towards a person sitting on the left hand side patri on the entry road from DTC Bus Terminal towards H.N. Din Railway Station having curly hair who was holding a white plastic katta in his right hand and told that he was the accused Raghupati @ Raju @ Sonu.
6. Then IO briefed the staff and directed Ct. Pankaj to park the gypsy at some distance. IO, Head Constable Ramesh and Ct. Vijay kept watch on FIR No. 192/16 State Vs. Raghupati @ Sonu Page No. 3/48 accused while taking shelter of the buses stationed there. Accused was seemingly waiting for someone. They also kept a watch on the accused for about 10 minutes. Thereafter, accused put his katta on his left shoulder and started moving towards taxi stand. Then they all chased and apprehended accused at about 6.20 PM.
7. PW 10 IO SI Omvir Dabbas introduced himself and other raiding team members to the accused, and informed the accused that they had secret information about him being in possession of contraband ganja. IO informed the accused about the possibility of accused being in possession of ganja in the plastic katta carried by him on his shoulder, and for which they need to take search of accused and his katta. IO also apprised accused about his legal right that if he wishes so, his search can be conducted in the presence of a Gazetted Officer or Magistrate, before whom search could be taken or who can be called at the spot. IO also told accused that he can search the police party including IO and the gypsy. IO served notice u/s 50 NDPS Act Ex PW2/N in this regard upon accused, carbon copy whereof is Ex. PW-2/A . The reply of the accused, to the notice u/s 50 NDPS Act is Ex PW2/B, bearing his signature at point C whereby he refused to avail his right.
8. The carbon copy of the notice u/s 50 NDPS Ex PW2/A bears signatures of PW 10 SI Omvir Dabas at point B, PW 11 HC Ramesh Kumar at point C and of PW 2 Ct Vijay at point A. The reply to the notice u/s 50 FIR No. 192/16 State Vs. Raghupati @ Sonu Page No. 4/48 NDPS Ex PW2/B bears signatures of PW 10 SI Omvir Dabas at point B, PW 11 HC Ramesh Kumar at point C and of PW 2 Ct Vijay at point A On inquiry, accused had told that he could understand and speak Hindi but was not able to write Hindi or English and that he had studied upto 5th standard in his village. Accused had told IO that he can put his signature in Hindi and English script but cannot write properly. IO read over the contents of notice u/s 50 NDPS Act Ex. PW-2/A to accused and on the dictation of accused, recorded his reply on the carbon copy of notice, which is Ex. PW-2/B.
9. In the meantime, accused put his katta on the ground. IO took cursory search of accused but nothing incriminating was found from the person of accused. Thereafter IO checked the white polythene katta found from the possession of accused which was tied with grey colour plastic sutli, which was found containing foul smelling green leafy seeds, wet plant like material which as per its smell and physical characteristics was appearing to be ganja. IO weighed the plastic katta containing ganja on spring weighing scale and total weight came out to be 30kg.
10.Then the IO marked the plastic katta with mark A and separated two samples of 250gm each from the recovered ganja and put them in two different transparent momi polythene pouches and after tying their mouth with rubber band, sealed them separately in white cloth pullanda with the seal of "8A PS NB DELHI" and gave them mark A1 and A2 FIR No. 192/16 State Vs. Raghupati @ Sonu Page No. 5/48 respectively. He also filled FSL form using same seal impression and put the grey colour plastic sutli with the remaining ganja which was lying in the same plastic katta mark A and tied the mouth of katta with white cloth and sealed it with his seal of "8A PS NB DELHI". He sealed all three pullandas one after and other at the same time. Seal after its use was handed over to HC Ramesh.
11.The IO seized all the case property including sample property vide seizure memo Ex. PW-2/C bearing his signature at point B. IO prepared tehrir Ex. PW-10/A bearing his signature at point A and handed over tehrir alongwith all three sealed pullandas with FSL form and copy of seizure memo to Ct. Vijay with direction to handover tehrir to DO for registration of FIR, and remaining articles including Mark A, Mark A1 and Mark A2 to SHO, PS, Crime Branch.
12.PW 2 Ct. Vijay took all aforementioned articles to PS in their government gypsy driven by Ct. Pankaj. He left the spot at around 10PM and reached PS Malviya Nagar at about 10:40 PM. The rukka was handed over to the Duty Officer and the sealed pullandas, seizure memo were handed over to PW 7 SHO Insp Virender Singh, now an ACP. Then PW7 Insp Virender Singh sealed all the 3 pullandas with the seal of VSS and also put the impression of the abovesaid seal on FSL Form. Thereafter, PW7 called PW9 MHC(M) ASI Jag Narain along with Malkhana Register to whom these articles were handed over by PW7 FIR No. 192/16 State Vs. Raghupati @ Sonu Page No. 6/48 with directions to deposit them in the malkhana.MHC(M). PW7 Insp Virender Singh also signed the relevant malkhana entry bearing no. 2690 dated 01.12.2016 Ex PW7/B and thereafter lodged DD No. 20 PS Crime Branch dated 01.12.2016 Ex PW7/A in compliance of Section 55 NDPS Act.
13.At about 12:25 AM the next day, the Duty Officer handed over to PW2 computerized print of FIR, which PW2 handed over to PW 12 ASI Sanjay, who was entrusted with further investigation of the case. At about 1.30 AM, PW 12 2nd IO/ASI Sanjay alongwith Ct. Pankaj/driver reached spot in the government gypsy. IO handed over custody of accused alongwith already prepared documents to ASI Sanjay. At the instance of IO/SI Omvir Dabas, PW 12 ASI Sanjay prepared site plan Ex. PW-10/B bearing his signature at point A. Thereafter, 2 nd IO inquired and recorded statement of HC Ramesh. Thereafter accused was arrested vide arrest memo Ex. PW-10/C and his personal search was conducted vide memo Ex. PW-10/D. From personal search, the original notice u/s 50 NDPS Act, one Aadhar card and Rs. 1,070/- was recovered from accused. PW12 ASI Sanjay/2nd IO interrogated accused and recorded his disclosure statement Ex. PW-10/E bearing his signature at point A.
14.Thereafter. they all alongwith accused reached at PS Crime Branch. Second IO deposited personal search articles in the police station.
FIR No. 192/16 State Vs. Raghupati @ Sonu Page No. 7/48 Second IO recorded statement of the then SHO and the then MHC(M). Thereafter they all reached in their office alongwith accused at about 7.05 AM on 02.12.2016. The accused was produced before Inspector Jai Bhagwan. IO/SI Omvir Dabas prepared report u/s 57 NDPS Act regarding seizure of ganja from accused, and arrest of the accused, and handed over the same to Inspector Jai Bhagwan for forwarding to the then SHO. The carbon copy of his report u/s 57 NDPS Act is Ex. PW- 10/F bearing his signature at point A. Inspector Jai Bhagwan forwarded it and sent it to the then ACP.
15.The log book of the Government gypsy Ex PW5/A, reflecting movement of the raiding party, was produced by PW5 SI Satyavir Singh.Further, on the directions of 2nd IO PW 12 ASI Sanjay, PW6 HC Rupesh Kumar collected one sealed exhibit, sealed with the seal of 8APS NB DELHO and VSS from PW 9 ASI Jag Narain, MHC(M) vide RC No. 404/21 Ex PW6/A. PW 6 HC Rupesh Kumar then deposited the same in FSL Rohini against receipt/acknowledgement Ex PW6/B. The FSL result was received by 2nd IO PW12 ASI Sanjay on 01.02.2017, and the same was filed in the court with the chargesheet on 08.03.2017. As per the FSL result, the contraband item was found to be ganja(cannabis).
16.On 27.11.2018, an application was moved by PW 12 ASI Sanjay u/s 52A NDPS Act which was disposed off by Ld MM who affixed his seal on the samples bearing impression HP. The samples prepared by the Ld MM FIR No. 192/16 State Vs. Raghupati @ Sonu Page No. 8/48 were Ex P4 and Ex P5. After completion of investigation, charge sheet was filed against the accused in the Court u/s 20 NDPS Act.
CHARGE FRAMED QUA THE ACCUSED
17.On 27.03.2017, charge under section U/s 20 b (ii) B NDPS Act was framed qua the accused, to which he pleaded not guilty and claimed trial. At this juncture, it is to be noted that the alleged recovery of Ganja from the accused herein was to the tune of 30kgs. As per Section 2 (viia) of the Act, 'commercial quantity' in relation to narcotic drugs and psychotropic substances means any quantity greater than the quantity specified by the Central Government by notification in the Official Gazette. Now, as per the relevant notification specifying small quantity and commercial quantity vide S.O 1055(E), dated 19 th October, 2001 published in the Gazette of India, Extra., Pt II, Sec. 3(ii), dated 19 th October, 2001, quantity above 20kgs of Ganja is 'commercial quanity'. In the present case, 30 kgs of Ganja has been allegedly recovered. Even order sheet dated 27.03.3017 categorically refers to recovery of 30 kgs of Ganja, and that there was 'prima facie sufficient material to frame charge for the offence u/s 20 NDPS Act against the accused'. Thus, it is apparent that on 27.03.2017, due to a typographical error, formal charge has been framed u/s 20 b (ii) B NDPS Act whereas it should have been framed u/s 20 b (ii) C NDPS Act.
FIR No. 192/16 State Vs. Raghupati @ Sonu
Page No. 9/48
EVIDENCE LED BY PROSECUTION
18.In the trial, the prosecution in support of its case, examined twelve witnesses, the succinct testimonies whereof are as follows:
19.PW-1 ASI Dinesh Kumar had brought the original diary register wherein report u/s 42 of NDPS Act vide DD No. 14 dt. 01.12.16 received from SI Ombir Dabas duly forwarded by Inspector Jai Bhagwan, Narcotics Cell was entered at S. No. 2944, which was received on 2.12.16 by dak. He deposed that a report u/s 57 of NDPS Act regarding of seizure of contraband was also received sent by SI Ombir Dabas duly forwarded by Inspector Jai Bhagwan, Narcotics Cell, was entered at S. No. 2945. He further deposed that a report u/s 57 of NDPS Act regarding arrest of accused was also received sent by ASI Sanjay duly forwarded by Inspector Jai Bhagwan, Narcotics Cell was entered at S. No. 2946. He had placed the above said reports before the ACP Shri Sanjeev Kumar Tyagi as soon as these reports were received in office. He further deposed that ACP had seen the said reports and also signed the same. The original reports are Ex. PW-1/A, B & C. The copy of register was exhibited as Ex. PW1/D (Colly).
20.PW-2 Ct. Vijay and PW-11 Ramesh Kumar were the other members of the raiding party and had joined the investigation with the IO. They deposed in similar lines as that of the IO qua manner of arrest, giving of notice u/s 50 NDPS Act, seizure and sealing of contraband items, FIR No. 192/16 State Vs. Raghupati @ Sonu Page No. 10/48 preparation of samples etc.
21.PW-3 SI Ram Parsad has deposed that on 01.12.2016, he was posed as Duty Officer at PS Crime Branch, Malviya Nagar, New Delhi. He was on duty from 08:00 PM to 08:00 AM. On that day, at about 10:50 PM, Ct. Vijay brought one rukka which was sent by SI Ombir Dabas. On the basis of said rukka, PW-3 got the present FIR registered through Computer Operator. The copy of FIR is Ex.PW3/A, bearing his signature at point-A. He also made endorsement on the rukka Ex. PW-3/B at point- A alongwith his signature. He had also brought the DD Register wherein DD No. 19 was lodged to this effect copy whereof is Ex. PW-3/C (OSR). He further deposed that Investigation of this case was entrusted to ASI Sanjay.
22.PW-4 Sh. M.L. Meena, Senior Scientific Officer (Chemistry) deposed that he is working as a Senior Scientific Officer in FSL, Rohini since 2011. Before that he was working as Junior Scientific Officer in Central Scientific Laboratory, Chandigarh. He further deposed that he possessed an experience of about 15 years in this field and during his tenure, he had examined a number of exhibits and had deposed in various Courts of Law as an expert witness. He has further deposed that in the present case one sealed cloth parcel bearing one seal of 8APS/N. B. DELHI & one seal of VSS were received in their office on 05.12.2016 through HC Rupesh alongwith the forwarding letter, copy of forwarding FIR No. 192/16 State Vs. Raghupati @ Sonu Page No. 11/48 letter was taken on record as Ex. PA (OSR). The seals on the exhibit were intact and tallied with the forwarding letter. He examined the exhibits from 08.12.2016 to 23.12.2016. On opening, the parcel it was found containing dried greenish brown coloured flowering & fruiting vegetative material kept in a polythene tied with rubber band, stated to be 'Ganja' weight 260.0 gms (approx.) with polythene & rubber band. On physical, Microscopic, Chemical & TLC examination, exhibit 'A-1' was found to be 'Ganja' (cannabis). He further deposed that after the examination, the remnants of the exhibit were sealed with the seal impression of 'MLM FSL DELHI' and returned the same to SHO PS Crime Branch alongwith the forwarding letter of Director FSL. His detailed report in this regard is Ex.PW4/A.
23.PW-5 SI Satyavir Singh had brought the summoned record in respect of Log Book of Government Vehicle i.e. Gypsy bearing Registration No. DL-1CM-1344 dated 01.12.2016. As per the record, the said vehicle on 01/02.12.2016 went from Pritampura Police Line to the office of Narcotics, and from there to Hazrat Nizamuddin Railway Station, and from there to PS Crime Branch Malviya Nagar, and from there to the office of Narcotics, from there to the spot H. N. Ding Railway Station, from there to PS Crime Branch, Malviya Nagar, from there to Office Narcotics, from there to LNJP Hospital, and from there to the office of Narcotics, from there to Saket Court, and from Saket Court to office FIR No. 192/16 State Vs. Raghupati @ Sonu Page No. 12/48 Narcotics. He further deposed that in total the said vehicle traveled 175 km on that day. The photocopy of the detail of the log book in respect of the said vehicle showing its movement on the aforesaid day is Ex.PW5/A (OSR).
24.PW-6 HC Rupesh Kumar has deposed that on 05.12.2016, he was posted HC in Narcotics Cell, Crime Branch. On that day, on the directions of ASI Sanjay, PW-6 was sent to PS Crime Branch vide DD No. 4. There ASI Jag Narayan MHC(M) PS Crime Branch handed over him one sealed pullanda mark-A alongwith FSL Form, copy of FIR and RC No. 404/21 and directed him to reach at FSL Rohini to deposit the above sealed pullands and documents to FSL, Rohini. The pullanda was sealed with the seal of 8APS NB DELHO and VSS. The RC No. 404/21 dated 05.12.2016 bears his signatures at point-A and the same is Ex.PW6/A vide which PW-6 received above documents and sealed pullanda. PW-6 obtained the receipt from FSL after depositing the above parcel and photocopy of which is Ex. PW-6/B, bearing his signatures at point-A (OSR). Thereafter, he returned back. He further deposed that the above sealed pullanda and the documents remained intact till it remained in his possession and was not tampered with in any manner.
25.PW-7 ACP Virender Singh has deposed that on 01.12.2016 he was posted as S.H.O P.S Crime Branch, Malviya Nagar, New Delhi. On that day Ct. Vijay Kumar, N&CP came to his office at about 10.55 PM and FIR No. 192/16 State Vs. Raghupati @ Sonu Page No. 13/48 produced 3 sealed parcels pertaining to the present case marked as Mark A, A-1, A-2, all duly sealed with the seal of "8A PS NB DELHI" with FSL form having same impression of abovesaid seal with carbon copy of seizure memo. Thereafter he inquired from duty officer and mentioned details of present FIR on all the produced pullandas, FSL form and copy of seizure memo and put his signature. Thereafter PW-7 sealed all the 3 pullandas with the seal of 'VSS' and also put the impression of abovesaid seal on FSL form. Thereafter, he called then MHC(M) HC Jag Narayan P.S. Crime Branch alongwith Malkhana register and handed over all the abovesaid pullandas and carbon copy of seizure memo, FSL form to MHC(M) and signed the relevant malkhana entry bearing no. 2690 dated 01.12.2016. Thereafter he lodged DD no. 20 P.S. Crime Branch dated 01.12.2016 in this regard in compliance of provision of Section 55 of NDPS Act which is in his hand, true copy of which is Ex. PW-7/A (OSR). The copy of Malkhana register is Ex. PW7/B bearing his signature at point A. Later on, IO recorded his statement under Section 161 Cr.P.C to the abovesaid fact. He further deposed that so long the case property remained in his possession same was not tampered with in any manner.
26.PW-8 Inspector Jai Bhagwan has deposed that on 01.12.2016 he was posted as Inspector in Narcotic Cell, Crime Branch, Kotwali, Daryaganj, New Delhi. On that day, at about 4.45 PM, when he was present in the FIR No. 192/16 State Vs. Raghupati @ Sonu Page No. 14/48 office, IO/SI Ombir Dabbas produced before a secret informer who informed that accused Raghupati @ Sonu R/o Sector -3, Dwarika Delhi would come with huge quantity of ganja for supplying the same near Hazrat Nizamuddin Railway Station between 6 PM to 7 PM. It was informed that accused used to bring ganja through railways from Orissa and Andhra Pradesh and used to supply in Delhi who can be apprehended if raided. After satisfying himself with the above secret information, he went to office of ACP, Narcotics & Crime Prevention Sh. Sanjeev Kumar Tyagi and informed him about the secret information. ACP Sanjeev Tyagi directed PW-8 to proceed with the information and take necessary action. Thereafter secret information was recorded vide DD No. 14 at 5.10 PM, true copy of which is already Ex. PW1/A which was produced before him in compliance of section 42 NDPS Act which I forwarded to concerned ACP. He instructed SI Ombir Dabbas to form a party. On 2.12.2016 at 7 AM, ASI Sanjay produced the accused before him and he interrogated the accused who confessed his involvement in the present case. IO/SI Ombir Dabbas produced a report u/s 57 NDPS Act regarding seizure of 30 Kg ganja Ex. PW1/B which PW-8 forwarded vide his endorsement at portion X to concerned ACP. He further deposed that on 02.12.2016 ASI Sanjay also produced a report u/s 57 NDPS Act regarding arrest of accused Ex. PW1/C which he forwarded vide his endorsement at portion X to concerned ACP. Later on IO recorded his FIR No. 192/16 State Vs. Raghupati @ Sonu Page No. 15/48 statement u/s 161 CrPC.
27.PW-9 ASI Jag Narain was the MHC(M) and deposited the case property of the present case in the Malkhana.
28.PW-10 IO/SI Omvir Dabas has deposed that on 01.12.2016 at about 4.30 pm, one secret informer reached his office and informed him that a person namely Raghupati @ Sonu local resident of Sector-3, Dwarka, New Delhi, who used to supply ganja from Andhra Pradesh and Orissa in Delhi to be carried by train would come near Nizamuddin Railway Station between 06.00 / 07.00 PM with huge quantity of ganja to deliver someone. On the direction of Inspector Jai Bhagwan (PW-8) to conduct appropriate proceedings, PW-10 lodged the secret information vide DD No.14 Ex. PW-1/A at about 5.10 PM and handed over copy of the same to Inspector Jai Bhagwan in compliance of section 42 of the NDPS Act. IO constituted a raiding party. They reached near the spot as told by the secret informer and on the pointing out of secret informer apprehended the accused and recovered the contraband i.e. 30 kg. ganja from his possession. IO sezied all the case property including sample property vide seizure memo Ex. PW-2/C bearing his signature at point B. At about 1.30 AM, 2nd IO/ASI Sanjay alongwith Ct. Pankaj/driver reached spot in the government gypsy. IO handed over custody of accused alongwith already prepared documents to ASI Sanjay. ASI Sanjay prepared site plan Ex. PW-10/B bearing his signature at point A. Thereafter, 2 nd IO FIR No. 192/16 State Vs. Raghupati @ Sonu Page No. 16/48 inquired and recorded statement of HC Ramesh. Thereafter accused was arrested vide arrest memo Ex. PW-10/C and his personal search was conducted vide memo Ex. PW-10/D.
29.PW-12 SI Sanjay was the second IO of this case. He has deposed that on 02.12.2016 he was posted as ASI in the Narcotic Cell, Crime Branch, Daryaganj Kotwali. On that day i.e. in the night at about 12:50 AM while he was in the office, Ct. Vijay came to him and gave one original rukka Ex. PW-10/A prepared by IO/SI Omvir Dabas alongwith computerized copy of FIR Ex. PW-3/A and one Form 65B of Indian Evidence Act and told that the investigation of this case was assigned to him.
30.The relevancy of the witnesses examined are succinctly delineated in the following tabular form:
PW NAME RELEVANCE 1 ASI Dinesh Kumar He was the Reader to ACP and proved DD No. 14 dated 01.12.2016, regarding receipt of and recording of secret information under Section 42 of the NDPS. He also proved entries regarding receipt of reports u/s 57 NDPS pertaining to recovery of contraband FIR No. 192/16 State Vs. Raghupati @ Sonu Page No. 17/48 item and arrest of accused, and placing of the reports before the ACP. 2 Ct Vijay He was part of the raiding team which apprehended the accused and effected recoveries of contraband item from him on 01.12.2016. 3 ASI Ram Prasad He was the Duty Officer in PS Crime Branch who registered the present FIR No. on the basis of rukka sent by PW10 IO SI Omvir Dabas through PW2 Ct Vijay. He proved the FIR Ex PW3/A. 4 M L Meena He was the FSL expert who proved his report viz. Ex PW4/A whereby it was opined that the seized item was Ganja. 5 SI Satyavir Singh He proved the details of movement of the vehicle of the raiding party vide log book Ex PW5/A 6 HC Rupesh Kumar On direction of the second IO, he had collected sealed case property on 05.12.2016 from MHC(M) 7 ACP Virender Singh He was posted as SHO PS Crime FIR No. 192/16 State Vs. Raghupati @ Sonu Page No. 18/48 Branch and received sealed articles, FSL Form, Carbon copies of seizure memos from PW2 Ct Vijay on which he affixed his seal of 'VSS' and deposited the same in the Malkhana after making entry in Register No. 19 in compliance of Section 55 of the NDPS Act. 8 Insp Jai Bhagwan Secret information was shared with him on 01.12.2016 by PW 10 IO SI Omvir Dabas, which he communicated to ACP Sh Sanjeev Kumar Tyagi and received directions for conducting of raid, which he further communicated to PW10. He also forwarded DD No.14 Ex PW1/A to the ACP within 72 hours, in compliance of Section 42 of the NDPS Act. 9 ASI Jag Narayan He was the MHC(M) PS Crime Branch and proved entries in Register No. 19 regarding FIR No. 192/16 State Vs. Raghupati @ Sonu Page No. 19/48 depositing, and issuance of case property. 10 SI Omvir Dabas He is the first IO of the case who received secret information, conducted investigation alongwith PW2 and PW11, leading to arrest of the accused, and effected recoveries from him on 01.12.2016 11 ASI Ramesh He was part of the raiding team which apprehended the accused and effected recoveries of contraband item from him on 01.12.2016 12 SI Sanjay He was the second IO to whom investigation was assigned after registration of the FIR. After completing investigation, he filed the chargesheet. STATEMENT OF ACCUSED
31.Accused was examined u/s 313 Cr.PC. In his defence, he averred that witnesses have deposed falsely against him in order to prove the false case of the police and that they are interested witnesses. He further stated that he is into flower business, rangoli business, decoration of flowers and he used to bring pooja material from Tamil Nadu to Delhi. He FIR No. 192/16 State Vs. Raghupati @ Sonu Page No. 20/48 averred that one Laxmi came in contact with him through her brother Murugan, who has a shop in Karol Bagh, and he helped him and Laxmi in setting up the said shop for which he was supposed to take Rs. 2 lacs from them. He came to Delhi in the afternoon of 01.12.2016. After he came out of the platform, few persons came to him and inquired from him about Laxmi, resident of Tamil Nadu, who was also present with them. Later on, he came to know that those were police officers. He questioned Laxmi as to why she has not paid his dues amounting to Rs. 2 lacs of his flower business. The said persons started beating him and took him and Laxmi to the police station. He asked Laxmi to return his money to which she replied that there is no money and that he will be going to jail for long time as he was asking about his money again and again. After some time, the police officers let off Laxmi. He was given beatings by the police officers. After the beatings, when he gave up, the police officers took his signatures on many blank papers. He was never produced before any doctor. The police officers also threatened him of dire consequences if he said anything in the Court. Nothing incriminating was recovered from him. He was never present at the spot on the given time and date. The police officers took his mobile phone. The above is the version of the accused recorded under Section 313 CrPC, to enable him to explain the circumstances appearing in evidence against him. The accused preferred not to lead any evidence in his FIR No. 192/16 State Vs. Raghupati @ Sonu Page No. 21/48 defence.
ARGUMENTS OF LD. PUBLIC PROSECUTOR FOR THE STATE AND LD.
DEFENCE COUNSEL
32.Sh. Wasi-Ur-Rahman, Ld. Public Prosecutor for the State submitted that all the witnesses have supported the case of prosecution. It was submitted that there was firstly compliance of Section 42 of NDPS Act. It was further submitted that the information was brought to the notice of senior officer ie ACP concerned. It was contended that PW-10 I Ombir Dabas complied with Section 42 NDPS Act orally as well as in writing. It was further submitted that DD No. 14 was sent to the ACP concerned, and PW-1 ASI Dinesh Kumar read it to the ACP proved the receiving thereof vide Ex. PW1/D. It was further submitted that ASI Dinesh Kumar deposed that ACP had seen the reports and signed on them.
33. It was further contended that there was compliance of Section 50 of NDPS Act too. The notice u/s 50 NDPS Act has been proved as Ex. PW2/A, and its notice was also recovered from the personal search memo of the accused. Ld. Public Prosecutor for State also contended that all the recovery witnesses namely PW-11 ASI Ramesh Kumar, PW-2 Ct. Vijay and PW-10 complainant/SI Ombir Dabas have deposed on the same lines. It was also submitted that PW-10 SI Ombir Dabas and PW- 12 ASI Sanjay also deposed that they had prepared the other reports as per Section 57 of NDPS Act and sent the same to the Senior Officials i.e. FIR No. 192/16 State Vs. Raghupati @ Sonu Page No. 22/48 ACP. In this context, it was submitted that PW-1 ASI Dinesh Kumar has proved the receipt of information as per Section 57 of NDPS Act.
34.It was further submitted that the requirement of Section 55 of NDPS Act has also been complied with from the testimony of PW-7 ACP Virender Singh, who was the then SHO PS Crime Branch. It was also submitted that the SHO had counter sealed the contraband items and the FSL form with his seal VSS and had also directed the MHC(M) to make relevant entry in the Malkhana register. In this context, PW-9 ASI Jag Narayan MHC(M) also produced the malkhana register reflecting the movement of case property. It was also submitted that PW-5 SI Satyaveer produced the log book of the raiding party reflecting their movement from Crime Branch to the place of incident and back and the same was proved as Ex. PW5/A. It was also contended that PW-4 Sh. ML Meena, Forensic Expert, FSL proved his report and affirmed that the contraband deposited in FSL was Ganja.
35.Lastly, PW-12 ASI Sanjay who was the 2 nd IO, arrested the accused and also proved the arrest memo, seizure memo and site plan and the proceedings till the filing of the charge sheet.
36.Per contra, Sh. Sumit Sharma, Ld. Counsel for accused vehemently remonstrated that there was non compliance of Section 42 of NDPS Act. It was submitted that Ex. PW1/A does not stand prove as PW-1 ASI Dinesh Kumar did not sign it nor depose to the effect that it was signed FIR No. 192/16 State Vs. Raghupati @ Sonu Page No. 23/48 in his presence. It was submitted that the procedure adopted by the police is vide ab initio. It was submitted that there was no compliance of Section 41(2) OF NDPS Act inasmuch as there was lack of authorization, and no person was so authorized under this Section.
37.It was submitted that when information was given from IO to Inspector Jay Bhagwan, and then to the ACP, the prosecution has failed to explain as to why warrants of search authorization was not taken from the ACP. It was further contended by Ld. Counsel for accused that the best witness would be the ACP himself, but the prosecution has not made him stand in the witness box.
38.It was further submitted that there was no compliance of Section 50 NDPS Act as the accused could only speak and understand Tamil language and could not read or write or understand Hindi or English.
39.It was further submitted that mandate of law is to take the accused to the nearest Magistrate of Gazetted Officer. Ld. Counsel for accused invited the Court's attention to cross-examination of PW-10 SI Ombir Dabas dated 31.03.2022, to contend that he did not even make an endeavor to join the Gazetted Officer or Magistrate at the spot, and did not try to summon Senior Police Officials at the spot. It was further contended that a perusal of Section 50 NDPS Act would make it explicit that it was signed as Raghati and not as Raghupati by the accused. It was further contended that there is non compliance of 50(5) of NDPS Act also FIR No. 192/16 State Vs. Raghupati @ Sonu Page No. 24/48 inasmuch as the search should at least have been according to Section 100 of Cr.PC, which is not the case in present matter.
40.It was further submitted that neither there is compliance of Section 50 (5) of NDPS Act nor of Section 50(6) of NDPS Act, as no copy was sent within 72 hours. It was submitted that the case property was not examined by expert witness i.e. PW-4 M.L Meena. It was contended that the sample of contraband has contained in Ex. A1 was not opened during his testimony and thus benefit of doubt must be given to accused. Ld. Counsel further submitted that there is possibility of tampering, as samples and seal were in possession of prosecution. It was also submitted that there was discrepancy in weight when the sample was weighed in FSL. Further, Ld. Counsel contended that the seizure of contraband and taking of samples was conducted on 01.12.2016, however, the sample was deposited to FSL only on 05.12.2016, thus there is a delay of more than 72 hours in sending the sample, which is in violation of relevant standing orders.
41.It was submitted that the prosecution was clueless about the contents of the item seized inasmuch as they were not aware of the definition of Ganja. It was submitted that as per Ex. PW2/C i.e. seizure memo that the contraband items were 'pattedar and beejyukt' i.e. includes leaves and seeds, and thus this was contrary to the definition as per Section 2 of the Act. Ld. Counsel also invited the Court's attention to the examination in FIR No. 192/16 State Vs. Raghupati @ Sonu Page No. 25/48 chief of PW-2 to contend that, he deposed that seized items were found containing of dark green leaves and white colour seeds with small piece of branches.
42.Thus, it was contended that possibility of tampering cannot be ruled out as the word branches was missing in seizure memo Ex. PW2/C. It was further contended that there was no application on record whereby request was made to conduct proceedings u/s 52A NDPS Act. It was further submitted that non examination of driver of vehicle which took the raiding party, was also fatal for the case of prosecution. Thus, it was submitted that the accused ought to be exonerated.
STATEMENT OF REASONS FOR THE DECISION A. APPREHENSION OF ACCUSED AND RECOVERY OF ALLEGED CONTRABAND FROM HIM
43.The manner in which the accused was apprehended and recoveries effected by the raiding team comprising of PW 10 SI Ombir Dabas, PW2 Ct Vijay and PW11 ASI Ramesh Kumar have been detailed above. They have deposed in a similar vein in their examination-in-chief.The sum and substance of their deposition has already been summarized in paras 2-11 above.
44.As far as manner of arrest of the accused is concerned, it was contended by Ld Counsel for the accused that no independent witnesses were joined during the arrest of the accused, and recovery of contraband item from FIR No. 192/16 State Vs. Raghupati @ Sonu Page No. 26/48 him. Ld Counsel placed reliance on Gunesh Kumar v State Crl A No. 1696/2014 and Yashpal v State Crl A No. 1120/2014 passed by the Hon'ble Delhi High Court to fortify his submissions.
45.The above verdicts would not come in aid of the accused as in those cases, no sincere efforts were made by the IO to join independent witnesses, and no plausible explanation was forthcoming. In Gunesh's case, (supra) there were a number of shops nearby and no attempt was made to associate independent witnesses.In the present case, as is evinced from the testimony of PW2 Ct Vijay, there was no kiosk/shop near the spot. PW2 categorically averred that the IO had asked 4-5 public persons who were standing near the spot to join investigation.
46.In fact, it would be pertinent to peruse the following extracts of the cross-examination of PW10 IO Ombir Dabas in this regard :
" I alone had come out of the official vehicle to ask the public persons to join the police in this case at Shanti Van Bus Stad, Millenium Bus Depot, near foort over bridge at Nizammudin police station. I had asked around 12-15 public persons in toto at those places. All of them have denied to join the police after I shared secret information with them. Those persons left without disclosing their names to me."
47.Thus, it cannot be gainsaid that efforts were made to join public witnesses but to no avail. Significantly, in this context, it would be useful to peruse the following extracts of Ajmer Singh v State of Haryana (2010) 3 SCC 746:
"19 The learned counsel for the appellant has submitted that the evidence of the official witnesses cannot be relied FIR No. 192/16 State Vs. Raghupati @ Sonu Page No. 27/48 upon as their testimony, has not been corroborated by any independent witness. We are unable to agree with the said submission of the learned counsel. It is clear from the testimony of the prosecution witnesses PW 3, Paramjit Singh Ahalwat, DSP, Pehowa; PW 4, Raja Ram, Head Constable and PW 5, Maya Ram, which is on record, that efforts were made by the investigating party to include independent witness at the time of recovery, but none was willing. It is true that a charge under the Act is serious and carries onerous consequences. The minimum sentence prescribed under the Act is imprisonment of 10 years and a fine. In this situation, it is normally expected that there should be independent evidence to support the case of the prosecution. However, it is not an inviolable rule. Therefore, in the peculiar circumstances of this case, we are satisfied that it would be travesty of justice, if the appellant is acquitted merely because no independent witness has been produced.
20 We cannot forget that it may not be possible to find independent witness at all places, at all times. The obligation to take public witnesses is not absolute. If after making efforts which the court considered in the circumstances of the case reasonable, the police officer is not able to get public witnesses to associate with the raid or arrest of the culprit, the arrest and the recovery made would not be necessarily vitiated. The court will have to appreciate the relevant evidence and will have to determine whether the evidence of the police officer was believable after taking due care and caution in evaluating their evidence."
48.Thus, the testimony of police witnesses cannot be disregarded merely on account of non joining of public witnesses.
B. RECORDING OF SECRET INFORMATION, COMPLIANCE OF SECTION 42 NDPS ACT
49.As per the prosecution, PW 10 SI Ombir Dabas received secret information in his office on 01.12.2016 at about 4.30 pm and thereafter PW 10 IO/SI Omvir Dabas produced the secret informer before PW 8 Inspector Jai Bhagwan at about 4.45 PM, who then shared the information with the then ACP Sh. Sanjeev Kumar Tyagi. The ACP FIR No. 192/16 State Vs. Raghupati @ Sonu Page No. 28/48 directed PW 8 Inspector Jai Bhagwan to conduct a raid.
50.The secret information received by PW 10 SI Omvir Dabbas was reduced in writing at 5:10 PM vide DD No.14 already Ex. PW-1/A for compliance of Section 42 NDPS Act. The said DD entry was handed over to PW 8 Inspector Jai Bhagwan, who forwarded the same to the ACP in compliance of section 42 of the NDPS Act
51.Ld. Counsel for accused vehemently remonstrated that there was non compliance of Section 42 of NDPS Act. It was submitted that Ex. PW1/A does not stand prove as PW-1 ASI Dinesh Kumar did not sign it nor depose to the effect that it was signed in his presence. It was submitted that the procedure adopted by the police is vide ab initio. It was submitted that there was no compliance of Section 41(2) OF NDPS Act inasmuch as there was lack of authorization, and no person was so authorized under this Section. Ld Counsel placed reliance on State of Punjab v Balbir Singh AIR 1994 SC 1872 and DRI v Majinder Singh Crl LP No. 310/2013 to buttress his arguments.
52.Thus, the foremost defence of the accused is that there was non compliance of mandatory provisions viz. Section 41 and 42 of the NDPS Act. However, it is of utmost significance to note that the case of the prosecution is that recovery of ganja was made from the accused at a road adjacent to Hazrat Nizamuddin Railway Station. Thus, this is a case where recovery has been made at a public place and not from any FIR No. 192/16 State Vs. Raghupati @ Sonu Page No. 29/48 building, conveyance or enclosed place. Therefore, Section 43 of the NDPS Act would be attracted in the facts and circumstances of the present case, and not Section 41 or 42 of the Act. In this context, it would be useful to refer to Mohan Lal V State of Rajasthan (2015) 6 SCC 222 wherein it was held as thus:
"32 In the present case, the High Court has noted that the information was given to the competent authority. That apart, the High Court has further opined that in the case at hand Section 43 applies. Section 43 of the NDPS Act contemplates seizure made in the public place. There is a distinction between Section 42 and Section 43 of the NDPS Act. If a search is made in a public place, the officer taking the search is not required to comply with sub-sections (1) and (2) of Section 42 of the NDPS Act. As has been stated earlier, the seizure has taken place beneath a bridge of public road accessible to the public. The officer, Sub-Inspector is an empowered officer under Section 42 of the Act. As the place is a public place and Section 43 comes into play, the question of non-compliance with Section 42(2) does not arise."
53. Even the Constitutional Bench judgment of Karnail Singh Vs. State of Haryana (2009) 8 SCC 539, it was laid down as thus:
"26 The material differences between the provisions of Section 42 and 43 of the NDPS Act is that Section 42 requires recording of reasons for belief and for taking down of information received in writing with regard to the commission of an offence before conducting search and seizure, Section 43 does not contain any such provision and as such while acting under Section 43 of the Act, the empowered officer has the power of seizure of article, etc. and arrest of a person who is found to be in possession of any narcotic drug or psychotropic substance in a public place where such possession appears to him to be unlawful."
54.Thus, the contention of Ld Counsel for the accused cannot be countenanced on this score alone. However, arguendo if it is considered FIR No. 192/16 State Vs. Raghupati @ Sonu Page No. 30/48 that provisions of Section 41 & 42 are applicable, even then the conditions thereof have been duly complied with.
55.The secret information was reduced in writing in the form of DD No. 14 dated 01.12.2016 i.e Ex PW 1/A. Thus, the requirement of Section 41(2) stood satisfied. Further, PW 10 SI Ombir Dabas was duly authorized by PW 8 Insp Jai Bhagwan to take search of, to seize and, to arrest the accused. PW8 Insp Jai Bhagwan was himself directed by the ACP Sh Sanjeev Kumar Tyagi to form a raiding party.
56.As far as Ex PW1/A is concerned, PW 8 Insp Jai Bhagwan categorically deposed as thus:
"Thereafter secret information was recorded vide DD No. 14 at 5:10 pm true copy of which is already Ex PW1/A which was produced before me in compliance of Section 42NDPS Act, bearing my signature at point X, which I forwarded to concerned ACP"
57.The receipt of the above report in the office of the ACP, was proved by PW1 ASI Dinesh Kumar,reader of ACP, who produced the copy of daily diary register Ex PW1/D. He deposed that report u/s 42 NDPS Act vide DD No. 14 dated 01.12.2016 received from SI Omvir Dabas duly forwarded by Insp Jai Bhagwan, was entered at S. No. 2944, which was received on 02.12.2016 by dak. He proved the original report as Ex PW1/A, and categorically averred that he had placed the above report before the ACP Sh Sanjeev Kumar Tyagi as soon as the report was received in the office. He also deposed that the ACP had seen the report FIR No. 192/16 State Vs. Raghupati @ Sonu Page No. 31/48 and also signed the same. Thus, the entire chain regarding secret information being reduced in writing and being put up before the ACP concerned within time, is clearly established. It is also clear from the testimony of PW 8 Ins Jai Bhagwan that he was directed by the ACP Sh Sanjeev Kumar Tyagi to proceed with the information and to take necessary action, in compliance whereof he further instructed PW10 IO SI Ombir Dabas to form a raiding party .There was in toto compliance of Section 41 & 42 NDPS Act also.
C. REGISTRATION OF FIR, DEPOSIT OF RECOVERED CONTRABAND IN SEALED PULLANDAS IN THE MALKHANA OF PS CRIME BRANCH
58.PW 2 Ct Vijay had deposed that he handed over the rukka to the DO and that at about 12:25 AM, DO handed over to him the computerized printout of FIR and original tehrir. In this context, the DO SI Ram Prasad was examined as PW 3, and he deposed that on 01.12.2016 when he was posted as DO PS Crime Branch, Malviya Nagar, on that day at about 10:50 PM Ct Vijay, who was sent by SI Ombir Dabas, brought one rukka, and on the basis of the said rukka, he got the present FIR registered. He proved the FIR as Ex PW3/A. He also brought original FIR register and made endorsement on the rukka Ex PW3/B at point A alongwith his signature. He also produced DD register wherein DD No 19 was lodged to this effect, and it was exhibited as Ex PW3/C.
59.As far as deposit of seized items in the malkhana is concerned, it was FIR No. 192/16 State Vs. Raghupati @ Sonu Page No. 32/48 deposed by PW10 SI Omvir Dabas that 2 samples of 250 grams each were taken out and FSL Form was filled.The samples were put in two different polythene pouches and were sealed separately in white cloths with the seal of 8A PS NB DELHI, and were given Mark A1 and Mark A2 respectively. The remaining contraband which was lying in the same katta was given Mark A, and was sealed in a white cloth with the seal 8A PS NB DELHI. The case property was seized vide seizure memo Ex PW2/C and was handed over to Ct Vijay with direction to hand over the same to the SHO PS Crime Branch. In evidence, PW10 SI ombir Dabas identified his signatures on the seizure memo at point B, PW2 Ct Vijay identified his signatures on the memo at point A, and PW11 HC Ramesh Kumar identified his signatures at point B. D. COMPLIANCE OF SECTION 55 OF THE NDPS ACT BY THE SHO
60.At this juncture, it would be apt to refer to Section 55 of the NDPS Act:
"SECTION 55. Police to take charge of articles seized and delivered.- An officer-in -charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in-charge of the police station."
61.In the present case, ACP Virender Singh, the officer-in-charge of PS Crime Branch was examined as PW7. He categorically deposed that on 01.12.2016, PW2 Ct Vijay came to his office at about 10:55 PM, and FIR No. 192/16 State Vs. Raghupati @ Sonu Page No. 33/48 produced before him 3 sealed parcels Mark A, A1 and A2, duly sealed with the seal '8A PS NB DELHI' with FSL Form having same impression of abovesaid seal with carbon copy of seizure memo. PW7 further deposed that he sealed all the above 3 pullandas with his seal VSS. He thereafter called the MHC(M) HC Jag Narayan along with Malkhana register, handed over the case property to the MHC(M) and signed Malkhana register entry bearing no. 2690 dated 01.12.2016, which was proved as Ex PW7/B. PW7 also proved the DD Entry No. 20 PS Crime Branch in this regard as Ex PW7/A. He categorically deposed that since the property remained in his possession, the same was not tampered with in any manner. The objection of Ld counsel for the accused that seal of IO remained with HC Ramesh and thus it might have been tampered, is also not sustainable. Tampering of seal is out of the question as the seal all throughout remained with the raiding party.
62. Thus, as is evident from the above deposition, the prosecution evidence clearly discloses that the seized articles were produced before officer in charge of the Police Station, that he had put his seal over those articles and thereafter they were sent for safe custody. The evidence also discloses that the seized articles were kept in the Malkhana and even while they were taken out for the Chemical analysis, they were properly sealed. Thus, there is due compliance of Section 55 NDPS Act in terms of Ashok Kumar Vs. State of Haryana AIR 2000 SC 3474.
FIR No. 192/16 State Vs. Raghupati @ Sonu Page No. 34/48 E. DEPOSIT OF PERSONAL SEARCH ARTICLES OF THE ACCUSED IN THE MALKHANA, PRODUCTION OF ACCUSED BEFORE INSPECTOR PS CRIME BRANCH.
63.As per the prosecution, the second IO PW12 SI Sanjay conducted the personal search of the accused vide Ex PW10/D which records that one original notice u/s 50 NDPS Act, cash of Rs 1070/- and Adhar Card were recovered in his personal search. After completion of investigation , the same were deposited by him with the MHC(M). PW !2 ASI Sanjay deposed that he deposited the articles recovered in jamatalashi with the MHC(M) in the Malkhana. PW9 ASI Jag Marayan also corroborated this fact by averring that on 02.12.2016, ASI Sanjay deposited with him personal search articles of accused Raghupati which he entered in the Malkhan Register No 19 vide entry no. 2691 i.e Ex PW 9/A.
64.PW12 further deposed that thereafter he produced the accused before Ins Jai Bhagwan who also made enquiries from the accused , and found his arrest to be justified.
F. REPORT UNDER SECTION 57 OF NDPS ACT
65.It would be apposite to refer to Section 57 of the Act, which is reproduced hereunder:
"Whenever any person makes any arrest or seizure, under this Act, he shall, within forty eight hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior."
66.The legislative intent behind Section 57 of the Act, has been delved upon FIR No. 192/16 State Vs. Raghupati @ Sonu Page No. 35/48 in Megha Ram v State of Rajasthan 1997 Cri LJ 3091 in the following words:
"Section 57 comes into play in the post-arrest period. It enjoins upon the officer, arresting an accused and effecting recovery of a narcotic drug or psychotropic substance from his possession, to inform his superior officers of the actions taken by him. Compliance of this provision is meant to serve a dual purpose. On the one hand it affords an element of authenticity to the action taken by him in the cause of preventing commission of offences against the NDPS Act. The consciousness of compliance of this section puts, in a sense, a sort of check on the arbitrary exercise of his powers of arrest and seizure by him under the Act and creates a sense of responsibility in him to act in accordance with relevant provisions of law so as not to be undermined in the estimation of his superior officers with regard to the discharge of his duties as a responsible officer. On the other hand the communication of the information apprises the superior officers of the position of offences against the NDPS Act and also of the steps taken and compliance of the relevant rules made by their subordinates in the administration of the said Act. If the officer has acted as a vigilant and duty conscious officer in the pre-arrest-stage of the proceedings and his evidence discloses satisfactory compliance of the mandatory provisions relating to that stage of proceedings and inspires confidence in Court, non- compliance or compliance with some irregularity of certain provisions relating to post-arrest period would not be fatal to the prosecution case as that would be a case of an offence already committed and concluded. The purpose of compliance of S. 57 is to afford further reliability to the action already taken by the subordinate, officer. In that sense of the matter compliance of S. 57 is not mandatory but for that reason its importance in the scheme of the Act cannot be minimised (see State of Punjab v. Balbir Singh)"
67.PW10 SI Omvir Dabas had deposed that he had prepared the report u/s 57 NDPS Act regarding seizure of ganja from the accused and handed it over to Insp Jai Bhagwan. He proved the report as Ex PW10/F by deposing that it bore his signatures at point A, and signatures of Insp Jai FIR No. 192/16 State Vs. Raghupati @ Sonu Page No. 36/48 Bhagwan at point B. There was an objection by Ld Counsel for the accused qua mode of proof. The objection cannot be sustained, inasmuch as ExPW10/F is merely the photocopy of ExPW1/B. Now as far as Ex PW1/B is concerned, PW8 Insp Jai Bhagwan deposed on 04.04.2019 as thus:
"SI Ombir Dabas produced before me report u/s 57 NDPS Act regarding seizure of 30 kg ganja which is already Ex PW1/B which I forwarded vide my endorsement at portion X to concerned ACP"
68.The 'portion X' in Ex PW1/B is nothing but 'point B' in Ex PW 10/F, which bears the signature of PW 8 Insp Jai BHagwan. Thus, the document stands proved as per law.
69.Further, PW 8 Insp Jai Bhagwan also deposed that he forwarded the report u/s 57 NDPS qua the arrest of the accused viz. Ex PW1/C, with his endorsement at portion X, to the ACP concerned. Thus, both the above witness proved the factum of sending of report u/s 57 NDPS Act to their immediate superior.
70.The receipt of the above report in the office of the ACP, was proved by PW1 ASI Dinesh Kumar,reader of ACP, who produced the copy of daily diary register Ex PW1/D. He proved the original reports as Ex PW1/B & C, and categorically averred that he had placed the above reports before the ACP Sh Sanjeev Kumar Tyagi as soon as the reports were received in the office. He also deposed that the ACP had seen the reports and also FIR No. 192/16 State Vs. Raghupati @ Sonu Page No. 37/48 signed the same. Thus, there was in toto compliance of Section 57 NDPS Act.
G. COMPLIANCE OF SECTION 50 NDPS ACT
71.Ld Counsel for the accused had vociferously argued that there was no compliance of Section 50 NDPS Act as the accused could only speak and understand Tamil language and could not read or write or understand Hindi or English. It was also submitted that the accused was not taken to the nearest Magistrate of Gazetted Officer. Ld. Counsel for accused invited the Court's attention to cross-examination of PW-10 SI Ombir Dabas dated 31.03.2022, to contend that he did not even make an endeavor to join the Gazetted Officer or Magistrate at the spot. Ld Counsel placed reliance on Valsala v State of Kerala AIR 1994 SC 117, Ushaben Rameshwar Pandit v State of Gujarat Crl Appeal No. 175/1999, Customs v Mohammad Bagour Cr LP No. 284/2011 and Arif Khan @Agha Khan v State of Uttarakhand Crl Appeal No. 273/2007 to substantiate his contentions.
72. Per contra, Ld Addl PP for the State contended that notice u/s 50 NDPS Act was duly served as per law. It was further submitted that Section 50 NDPS Act only applies in case of personal search of person and that articles like bag, brief case, container etc cannot even remotely be treated as part of the body or a human being. It was submitted that in this case, of recovery of contraband from bags carried by the accused in hand, FIR No. 192/16 State Vs. Raghupati @ Sonu Page No. 38/48 Section 50 is not attracted
73.To adjudicate this issue, it would be profitable to refer to Section 50 of the Act, which reads as thus:
"Section 50: Conditions under which search of persons shall be conducted:
(1)When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate (2)If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1)"
74.The safeguards mentioned in Section 50 are intended to serve a dual purpose- to protect a person against false accusation and frivolous charges as also to lend credibility to the search and seizure conducted by an empowered officer.
75.The foremost contention raised by Ld Counsel for the accused was that the accused could only understand Tamil Language, and thus service of notice u/s 50 NDPS upon him in a language not understood by him, would not be proper compliance of Section 50. Ld Counsel primarily placed reliance on Ushaben (supra) wherein it was held as thus:
"In our opinion, the option given to the accused, contemplated under Section 50 of the Narcotic Drugs And Psychotropic Substances Act, in a language not known to the accused, is not compliance of requirement of Section 50, as the accused would remain unaware or ignorant of the option of being taken to either a Magistrate or Gazetted Officer before whom search can be conducted. Therefore, in the instant case, when the record indicates that option was given to the accused in FIR No. 192/16 State Vs. Raghupati @ Sonu Page No. 39/48 Gujarati, a language not known to and not understood by the accused, there was non compliance of mandatory requirement of Section 50 NDPS. This would, certainly, vitiate the conviction."
76.Ld Counsel had further submitted that an interpreter of Tamil language was appointed by the court vide order dated 28.08.2018, thus lending credence to his assertions that the accused was unable to understand Hindi or English. In this context, it would be pertinent to note that the accused was already residing in Delhi. According to his statement u/s 313 CrPC, the accused had averred that he was carrying on flower business, rangoli business, decoration of flowers and he used to bring pooja material from Tamil Nadu to Delhi. He had also averred that one Laxmi came in contact with him through her brother Murugan, who has a shop in Karol Bagh, and he helped him and Laxmi in setting up the said shop. The above revelation leads to an inference that the accused would be possessing some knowledge of Hindi language atleast, else it would not have been possible for him to conduct business in Delhi. Significantly, a perusal of the Personal Search Memo Ex PW 10/D would reveal that his Adhar Card bears the address: R/o E-22, Phase-2, Sector 3, Dwarka, Delhi. This further lends credence to the inference that the accused was living in Delhi, and he would be possessing some knowledge of Hindi, in order to carry out day to day affairs, for commuting, for purchasing groceries, for making payments etc. FIR No. 192/16 State Vs. Raghupati @ Sonu Page No. 40/48
77. Interestingly, the accused was arrested on 02.12.2016, but it is only on 28.08.2018 that a submission was made that the accused is from Tamil Nadu and does not understand Hindi and that he needs a translator. Even at the stage of framing of charge or examination of PW1, this plea was not taken.
78.In the cross-examination of PW12 ASI Sanjay, he deposed as thus:
"It is wrong to suggest that accused Raghupati knew Tamil language only and not Hindi. I enquired from accused Raghupati as to from which place he had come, he answered that he had come from Dwarka"
79.Further, during the cross-examination of PW10 the IO, he denied the suggestion that the accused did not understand Hindi or English languages. In the cross examination of PW 11, it was elicited as thus:
"Q. Whether SI Ombir Dabas asked the accused after his apprehension that he must either write in English or Hindi any of the documents?
Ans. I do not know. Voluntary, the accused said that he can understand Hindi but he cannot read or write in Hindi and that he can sign in English"
80. Even PW2 Ct Vijay deposed that the accused received the notice u/s 50 NDPS Act by signing the same in English and accused also disclosed that he has studied upto class 5 and cannot read Hindi although he can understand. Thus, it is explicit that the plea of the accused that he did not understand the contents of Section 50 NDPS Act is hogwash. In view of the above discussion, this Court is of the opinion that there was sufficient compliance of Section 50 NDPS Act.
FIR No. 192/16 State Vs. Raghupati @ Sonu Page No. 41/48
81.As far as the contention of Ld Counsel for the accused qua presence of a Magistrate or Gazetted Officer at the spot i.e search of the accused in their presence is concerned, it would be apt to refer to the following extracts of Nabi Alam@Abbas v State (Govt of NCT of Delhi) (2021) 281 DLT 149 (DB) :
"26 For the sake of clarity it is held that, axiomatically, there is no requirement to conduct the search of the person, suspected to be in possession of a narcotic drug or a psychotropic substance, only in the presence of a Gazetted Officer or Magistrate, if the person proposed to be searched, after being apprised by the empowered officer of his right under Section 50 of the NDPS Act to be searched before a Gazetted Officer or Magistate categorically waives such right by electing to be searched by the empowered officer. The words "if such person so requires", as used in Section 50(1) of the NDPS Act would be rendered otiose, if the person proposed to be searched would still be required to be searched only before a Gazetted Officer or Magistrate, despite having expressly waived "such requisition", as mentioned in the opening sentence of sub-Section (2) of Section 50 of the NDPS Act. In other words, the person to be searched is mandatorily required to be taken by the empowered officer, for the conduct of the proposed search before a Gazetted Officer or Magistrate, only "if he so requires", upon being informed of the existence of his right to be searched before a Gazetted Officer or Magistrate and not if he waives his right to be so searched voluntarily, and chooses not to exercise the right provided to him under Section 50 of the NDPS Act."
82.In the present case, the accused explicitly waived off his right to be searched before a G.O or a Magistrate. Thus, this contention of Ld Counsel cannot be accepted. Thus, there is sufficient compliance of Section 50 NDPS Act.
H. DEPOSIT OF EXHIBITS IN FSL FOR FORENSIC EXAMINATION AND
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FSL REPORT.
83.The sanctity of chain of custody qua deposit of exhibits in FSL from the Malkhana, was also duly proved by the prosecution. PW6 HC Rupesh Kumar on the directions of the second IO on 05.12.2016 had collected from MHC(M) PW9 ASI Jag Narayan one sealed pullanda Mark A alongwith FSL Form, copy of FIR and RC No 404/21. Pullanda was sealed with seal of 8APS NB DELHI and VSS. This witness proved the Road certificate No. 404/21 as Ex PW6/A. He deposited the above items to the FSL and obtained acknowledgement receipt Ex PW6/B. He categorically deposed that the sealed pullanda and documents remained intact in his possession and was not tampered in any manner. In the cross examination he admitted that Ex PW6/B was a photocopy, however that alone would not render Ex PW6/B inadmissible, as he identified his signatures on the photocopy at point A. There is corroboration to this fact by PW4 ML Meena who deposed that one sealed cloth parcel bearing seal 8 APS NB DELHI and VSS were received in their office on 05.12.2016 through HC Rupesh along with forwarding letter Ex PA(OSR).
84.Thereafter PW9 ASI Jag Narayan, the MHC(M) was examined who produced the Malkhana register, and corroborated the version of PW HC Rupesh. He further deposed that after depositing the case property, HC Rupesh handed over to him a copy of the RC and case acknowledgment FIR No. 192/16 State Vs. Raghupati @ Sonu Page No. 43/48 receipt Ex PW6/B. He also produced the original RC register copy already Ex PW6/A. The factum of sending HC Rupesh to FSL with case property is evinced from a perusal of Entry 2690 Ex PW7/B. In the cross examination of PW 9 it was elicited that the entries 2689 and 2692 were not made in the handwriting of the MHC(M). This is of no consequence inasmuch as the relevant entry 2690 was recorded by PW9 himself in 45minutes.
85.Ld. Counsel contended that the seizure of contraband and taking of samples was conducted on 01.12.2016, however, the sample was deposited to FSL only on 05.12.2016, thus there is a delay of more than 72 hours in sending the sample, and thus there are chances of tampering. On the other hand, Ld Addl PP for the State had contended that the delay in sending samples to FSL would not be fatal to the case of the prosecution, and placed reliance on Jarnail Singh v State of Punjab (2011) 3 SCC 521.
86.It would be prudent to refer to the following extracts of Jarnail Singh (supra):
"22. Mr Ujjal Singh then submitted that there was a delay of twelve days in sending the sample of narcotic for chemical examination. This submission, in our opinion, is without any factual basis. The trial court as well as the High Court, on examination of the entire material, concluded that there was sufficient independent evidence produced by the prosecution regarding the completion of link evidence. Therefore, the delay in sending the sample parcel to the office of the chemical examiner pales into insignificance. We are of the considered opinion that FIR No. 192/16 State Vs. Raghupati @ Sonu Page No. 44/48 mere delay in sending the sample of the narcotic to the office of the chemical examiner would not be sufficient to conclude that the sample has been tampered with. There is sufficient evidence to indicate that the delay, if any, was wholly unintentional
23.This Court had occasion to deal with a similar issue, in Balbir Kaur v. State of Punjab [(2009) 15 SCC 795 :
(2010) 3 SCC (Cri) 997] . The Court made the following observations: (SCC p. 803, para 24) "24. As far as delay in sending the samples is concerned, we find the said contention untenable in law. Reference in this regard may be made to the decision of this Court in Hardip Singh case [Hardip Singh v. State of Punjab, (2008) 8 SCC 557 : (2008) 3 SCC (Cri) 580] wherein there was a gap of 40 days between seizure and sending the sample to the chemical examiner. Despite the said fact the court held that in view of cogent evidence that opium was seized from the appellant and the seals put on the sample were intact till it was handed over to the chemical examiner, delay itself is not fatal to the prosecution case."
87.In view of the above verdict, the objections of Ld Counsel for the accused qua delay in sending samples, cannot be countenanced inasmuch as there is cogent evidence already on record pointing out to recovery and seizure of contraband from the accused.
88.The FSL report Ex PW 4/A was proved by PW4 Sh ML Meena, Senior Scientific Officer, FSL, Rohini, who deposed that one sealed cloth parcel bearing one seal of 8APS/NB DELHI and one seal of VSS was received in their office on 05.12.2016 through HC Rupesh alongwith forwarding letter Ex PA. He further averred that the seals on the exhibit were intact and tallied with the forwarding letter. He then opened the parcel and it was found containing dried greenish brown coloured flowering and fruiting vegetative material kept in a polythene tied with rubber band, FIR No. 192/16 State Vs. Raghupati @ Sonu Page No. 45/48 stated to be ganja, weight 260 grams with polythene and rubber band. The witness unequivocally stated that " on physical, microscopic, chemical and TLC examination, exhibit A-1 was found to be Ganja (cannabis)" .The lengthy cross examination by Ld Counsel for the accused could not assail the testimony of the forensic witness. It also doesn't matter whether the case property was not examined by this witness, as the sanctity of chain of custody from seizure to sampling to sending the sample to FSL and receipt of the result, has been duly proved. The witness brought to the fore that the instrument viz. electronic microscope was regularly calibrated. He possessed an experience of 15 years in this field, examined a number of exhibits and deposed in various courts of law. Nothing could be elicited to dispute his competence or expertise. In view of this, the submissions of Ld Counsel for the accused that the police witnesses could not describe the nature, or wrongfully described the nature of material seized from the accused, pales into insignificance. They are not scientific experts who can depose with exactitude the composition of contraband item seized. Thus, the factum of contraband item being ganja, was cogently established by this witness.
I. FAILURE TO EXPLAIN CIRCUMSTANCES APPEARING AGAINST THE ACCUSED
89.It was contended by the State that the accused did not avail the FIR No. 192/16 State Vs. Raghupati @ Sonu Page No. 46/48 opportunity to explain the circumstances appearing in the evidence against him, and only put forth a mere bare denial or replied to the accusations by merely stating that 'it is incorrect'. He could not explain recovery of contraband items from him. The accused did not even put forth a plea of alibi. He could only ascribe false imputation of charges upon him at the behest of one Laxmi. There was no attempt to bring Laxmi in the witness box. There is a presumption u/s 54 of the NDPS Act which lays down that in trials under the NDPS Act, it may be presumed that the accused has committed an offence, unless and until the contrary is proved. The expression' unless and until the contrary is proved', clearly imposes the burden of proving that possession of prohibited substance is legal, or that he was not so found in possession, is on the accused himself. In this case, neither the presumption could be rebutted, nor could the accused explain the circumstances appearing in evidence against him.
CONCLUSION
90.Ergo, in view of the reasons hereinabove discussed in extenso, this Court is of the considered view that the prosecution has proved beyond reasonable doubt that the accused Raghupati @ Sonu was found in possession of 30 kgs of ganja on 01.12.2016 at around 6:20PM near DTC Bus Terminal, H. Nizamuddin, Delhi and is therefore convicted for the offence punishable u/s 20 (b) (ii) (C) of the NDPS Act.
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91.Further, in consonance with the provisions of Section 40 of the NDPS Act, the name and place of business and residence of the convict, nature of the contravention, the factum of the accused being convicted, be published in two English and two Vernacular newspapers and in news websites. Accordingly, copy of this order be sent to the DCP, Crime Branch to do the needful.
Announced in the open court on 13.01.2023 (ARUL VARMA) ASJ-04 & Spl. Judge (NDPS) South-East District Saket Courts, New Delhi FIR No. 192/16 State Vs. Raghupati @ Sonu Page No. 48/48