Delhi District Court
Case No. Sc/9343/2016 State vs . Firozuddin @ Bittu & Anr. Dated: ... on 28 July, 2022
IN THE COURT OF SH. AJAY KUMAR JAIN : ASJ: SPECIAL JUDGE NDPS:
PATIALA HOUSE COURTS: NEW DELHI
Case No. SC/9343/2016
ID No. 02403R0087542016
FIR No. 62/15
PS Special Cell
State
Versus
1. Firozuddin @ Bittu
S/o Md. Nizamuddin
R/o S116, Indra Gandhi Camp IInd,
Taimoor Nagar, New Delhi
2. Shaju
S/o Abdul Kadar
R/o 619A (8/274), Kolengattuparambil 9,
Arakkal Kadavallur Panchayath,
PS Kunnamkulam, Distt. Trichur, Kerala
Date of Institution : 22.03.2016
Judgment reserved on : 25.07.2022
Date of pronouncement : 28.07.2022
JUDGMENT
1. Brief facts as per charge sheet filed are that on 04.11.2015 around 1.50pm, SI Nirbhay Singh received a secret information as officer of Special Cell that accused Shaju who is R/o Kerala will deliver drugs at around 3.30pm in front of Rajdoot hotel, bus stop to accused Firoz @ Bittoo R/o Taimur Nagar, Delhi. Pursuant to which the information was communicated to Addl. DCP Manishi Chandra on his mobile 9810058002 through landline who directed to take legal action thereafter the said information was registered by DD no. 13 at 2.05pm. The raiding team along with secret informer went in govt vehicle Tavera along with the kit bag, field testing kit etc. and reached the spot i.e. bus stop, Mathura road, opposite Rajdoot hotel. The vehicle was driven by HC Hemant, IO Nirbhay Rana asked 45 passersby at Taimur Nagar red light to join the raiding party however everybody left by stating their inability. At around 2.50pm at the spot again asked 45 passersby but everybody left, then IO SI Ravinder deputed the Case No. SC/9343/2016 State Vs. Firozuddin @ Bittu & Anr. Dated: 28.07.2022 Page No. 1 of 26 team. At around 3.20pm accused Shaju came and stood at the stop who was identified by secret informer as Shaju, who started talking on his mobile phone and while talking went towards the foot over bridge, and after around 05 minutes accused Firozuddin @ Bittoo came on a scooty, who after opening the dickey of scooty, took out one white colour bag and handed over to Shaju, thereafter raiding party apprehended both and apprised of their legal rights to be searched before Gazetted Officer/Magistrate but both denied. On search of white colour bag, one yellow Corn flakes packet was found and inside the same, two white colour transparent polythene containing brown colour powder and from the dickey also, one white colour bag having Kellogg's corn flakes packet containing brown colour powder was recovered. The powder on testing found to be heroin. The recovered heroin after putting in the separate plastic transparent polythene found to have the weight around 500500 gm and samples of 10 10gm each were taken. The seizure and sealing proceedings were conducted. All the pullandas and FSL form after seizure and sealing proceedings were given to HC Hemant. HC Hemant took the case property along with rukka to duty officer which was presented before SHO PS Special Cell and further investigation was handed over to SI Shishu Pal. SI Shishu Pal reached the spot at around 07.15 PM where he found SI Nirbhay Singh and other staff. SI Shishupal prepared the rough site plan of the place and recorded the statements u/s 161 CrPC, seized the scooty at the spot. On completion of investigation, chargesheet was filed.
2. Vide order dated 01.09.2016 charges u/s 21 (c) r/w 29 NDPS Act was framed against accused Firozuddin @ Bittoo and Shaju. Charge u/s 21(c) NDPS Act was framed against Firozuddin @ Bittoo.
3. Prosecution for substantiating its case examined 16 witnesses. The summary of the witnesses are reproduced as under:
Witnesses to raid and recovery
4. PW1 SI Nirbhay Singh stated that on 04.11.2015 at around 01.50 PM, one secret informer met him in the office and told that one person resident of Kerala namely Shaju would come at the bus stop in front of Rajdoot Hotel at about 03.30 PM for receiving delivery of narcotic drug from one Firoz @ Bittu Case No. SC/9343/2016 State Vs. Firozuddin @ Bittu & Anr. Dated: 28.07.2022 Page No. 2 of 26 thereafter, he conveyed the said information to ACP/SR Manishi Chandra on his mobile number who directed to take appropriate action. Thereafter made DD no. 13 and instructed duty officer to send its copy to Addl. DCP Manishi Chandra for compliance u/s 42 NDPS Act. The raiding party consisting himself, SI Ranjeet, HC Hemant, HC Ravinder, HC Kulbir, Ct Rajesh, Ct Mohit along with informer alongwith the seal and the kit in government vehicle Tavera reached the spot. On the way the vehicle was stopped at Taimur Nagar read light and he asked 45 passersby to join the raid but none agreed thereafter they reached the spot opposite Rajdoot Hotel at around 02.50 PM where also passersby were asked to join but non agreed. At around 03.20 PM accused Shaju came on foot from Ashram Side and stood at the bus stop. The accused started receiving phone call in his mobile which was in his pocket and while attending the call, he reached upto foot over bridge and after 57 minutes, accused Firozuddin came on scooty who was identified by secret informer thereafter, accused Shaju started conversing with Firozuddin and then Firozuddin took out one cloth bag from dickey and handed over to Shaju then both were apprehended. Notice u/s 50 NDPS Act was given. The cloth bag which accused Shaju was holding found to contain two polythene of silver colour mouth of which are closed with brown tape. From the search of scooty of Firozuddin, another corn flakes packet was recovered containing two packets of silver colour and on opening the same, found to contain brown colour powder. The heroin was recovered from the possession of accused Shaju was converted into two polythene weighing 500gm each. The samples were also drawn from the two polythene of 500gm each recovered from dickey. He prepared rukka and also informed duty officer to send SI Shishu Pal, further handed over the pullandas and carbon copies of seizure memo to HC Hemant with direction to hand over the same to SHO and rukka to duty officer. SI Shishupal reached the spot and enquired about the events. He handed over him the carbon copy of section 50, seizure memo, rukka and custody of both accused.
5. In crossexamination stated, he do not know the superdar of scooty and denied suggestion that no scooty was recovered from the possession of Firozuddin. The Case No. SC/9343/2016 State Vs. Firozuddin @ Bittu & Anr. Dated: 28.07.2022 Page No. 3 of 26 secret informer did not tell him as to where accused Shaju was residing in Delhi prior to 04.11.2015 and when and how he came to Delhi. He also do not know at what time SI Shishupal came in the office of Special Cell on 04.11.2015. Informer remained with him for around 0810 minutes in office but relieved later on but he do not remember the duration of time when he was relieved by him. He was relieved after pointing out towards Shaju and Firozuddin. He was dismissed for false detention of accused from 06.09.2016 to 13.07.2017. He do not know when he relieved the informer 23 minutes prior to apprehension of the accused. He do not remember the distance of the accused when he relieved the informer. Accused Firozuddin was wearing red colour helmet. He did not join any gazetted officer or magistrate while taking search of Firozuddin also cannot say whether Rajdoot hotel was visible from the place where raiding team was deployed. No naka was laid before apprehension. He also do not remember at which place the team had taken the position. Accused Shaju was understanding and knowing Hindi. The team had taken the position on the left side of the road which was coming from Ashram. During this time, there was movement of persons as well as vehicles. However there was no house/shop near the spot. He cannot say the time as to when he prepared the first document in present case after arrival at th spot. Similar is his answer towards other documents. He did not request the persons who were standing at the bus stop before arrival of Shaju. He had seen mobile phones with both the accused when saw them, again stated he did not remember whether he had seen mobile phone with accused Firozuddin. He did not conduct any inquiry from the call details of accused persons to confirm as to whether they were knowing or talking to each other. He did not make any effort to join any Malyalli language person. He remained at the spot for around 6 hours. He met SI Ranjeet in the morning and the member of raiding party know each other for last 1¼ years and there is only one SI Ranjeet in their office. Inspector Rahul Sahni and Inspector Desh Raj were jointly incharge of team of Special Cell. He informed the case to Insp Rahul Sahani on the same day verbally but not in writing however he did not remember whether this is recorded in his statement or not. He did not request, Case No. SC/9343/2016 State Vs. Firozuddin @ Bittu & Anr. Dated: 28.07.2022 Page No. 4 of 26 Insp Rahul, Insp Deshraj and ACP to reach at the spot. He do not remember as to whether the mobile phone of accused remained in his custody or the custody of raiding party till the arrival of second IO. The second IO SI Shishupal had seized the mobile phone of accused Shaju and prepared a seizure memo (however there is no seizure memo of the said mobile phone, it is only seized in the personal search memo). He denied suggestion he had not prepared any document at the spot. He had no knowledge whether the call details were retrieved or not. He did not narrate the second IO regarding the positioning of members of raiding party. He cannot tell whether the position was in a straight line or had taken position in a radius. There was no mention with regard to his authorization to investigate the case in DD No.13. He got issued the seal in present case from the then HC Lalit Kumar who was store keeper during the relevant time. While collecting the seals, he had signed the register. He has not recorded the reasons of inability of public persons who refused to join. It took around 3 3 ½ 3 ¼ hours to complete the writing work and during that period, no raiding team member left the spot. He did not prepare the document after arrival of SI Shishu Pal.
6. PW5 HC Hemant stated that on 04.11.2015 at around 01.50 PM one informer met SI Nirbhay and gave information that two persons are in possession of narcotics. This information was shared by SI Nirbhay with him and other officials and he further told them that two persons would come at Mathura Road near Rajdoot Hotel. SI Nirbhay conveyed the same to Addl. DCP Manishi Chandra over telephone who asked him to take necessary action. Then, he recorded the information vide DD No.13. The raiding team reached the spot at around 02.25 PM and on the way, SI Nirbhay singh asked 45 persons to join the team but none agreed to join. They reached the bus stop at around 02.50 PM opposite Rajdoot hotel. IO deployed the raiding party members at the spot. He took position near the vehicle. Accused Shaju came around 03.20 PM, who started conversation and after 10 minutes, accused Firozuddin came on scooter and after opening the dickey took out one cloth bag and handed over the same to Shaju. Then the raiding team overpowered both the accused. IO prepared notice u/s 50 NDPS Act. Sealing and seizure proceedings were conducted. Seal after Case No. SC/9343/2016 State Vs. Firozuddin @ Bittu & Anr. Dated: 28.07.2022 Page No. 5 of 26 use was handed over to him. IO wrote the rukka and handed over rukka, pullandas in sealed memo, copy of seizure memo and FSL form with instructions to hand over to duty officer and sample and other documents to SHO. He informed SI Shishupal through telephone the FIR number and he was to conduct the further investigation of case. In crossexamination stated that he was having mobile phone on the day of raid but he do not remember its number and he cannot say whether any other member was having any mobile on said date. He remained at the spot for about 05 hours. IO SI Nirbhay Singh Rana was dismissed from service because of extortion charges. After around 1 hour of their arrival at the spot, accused Shaju came at the spot. The personal search of accused was conducted by SI Nirbhay Singh Rana (personal search memo shows it was done by SI Shishupal even not bearing signature of SI Nirbhay Singh). No public persons was joined from house/office/hotel/shop/guest house. He studied the file before deposing for about 05 minutes in the court. He left the spot at 07.15 PM. He cannot tell how the accused came at the spot i.e. by walking or by travelling in bus or by driving a vehicle. He cannot tell as to what time informer left the spot after arrival of accused persons but he left after pointing out the accused. He cannot say at what time documents were prepared after departure of informer. He came to spot while driving the government vehicle from their officer however having no knowledge who maintains/filing the log book. He did not make any entry in log book with regard to the movement of government vehicle. He also stated that he was aware that every movement of the vehicle has to be made in the log book. He cannot say how the accused was explained his legal right. He left the spot at around 07.15 PM, and went to Special Cell Lodhi Colony and remained there till 10.00 PM. Thereafter, went to his office at New Friends Colony at around 11.00 PM. Site plan was not prepared in his presence and also do not remember how many documents were signed by him at the spot. FSL form was not prepared in his presence but same was given to him at the spot. He do not know how many pages the said FSL form was consisting of. The secret informer never uttered a word before him therefore, he cannot tell in which language he was fluent. He was positioned near the vehicle but he do not Case No. SC/9343/2016 State Vs. Firozuddin @ Bittu & Anr. Dated: 28.07.2022 Page No. 6 of 26 remember if anyone else was positioned alongwith him. IO was positioned at the back side of the vehicle and he do not remember the distance but he was visible from the said place. He cannot tell whether from the said position of IO one can hear. Other members of raiding party consisting of HC Ravinder, HC Kulbir, Ct. Rajesh were positioned alone at different locations but he cannot tell distance between them. He cannot tell whether the raiding team members were positioned on both sides of the road or on single side. All the documents were prepared by SI Nirbhay Rana himself but he cannot tell where the same were prepared i.e. inside the car, outside the car or at footpath. The other accused was wearing helmet but he do not know the colour and description of the helmet. All the procedure with regard to weighing and testing was done by SI Nirbhay Rana. He also cannot tell whether SI Nirbhay Rana had informed the accused about Gazetted Officer or other departments of police can also be arranged. Honda Activa scooty of grey colour. He denied the suggestion that accused was picked up on 04.11.2015 from other place in Delhi. It is further wrong to suggest that accused Shaju never met with Firozuddin on 04.11.2015.
7. PW14 HC Ravinder Saroha stated that at around 01.50 PM, one informer came in the office of SI Nirbhay Rana and told him that one Shaju will come at bus stand Bhogal at around 03.30 PM to take delivery of drug from Firozuddin. Then, he passed the information to Addl. DCP Manishi Chandra who directed SI Nirbhay Rana to take appropriate action. Thereafter, SI Nirbhay Rana made DD entry and constituted a team including himself, SI Ranjeet, HC Hemant, HC Kulbir, Ct. Mohit and Ct. Rajesh. They reached the spot at around 2.25pm in Tavera vehicle in the meanwhile SI Nirbhay Rana requested 45 passersby. They reached at the spot around 02.50 PM and deployed at different positions. Accused Shaju was identified by secret informer. Informer identified Firozuddin also. After accused Firozuddin gave white colour bag from the dickey, both were overpowered by the police party. Notice u/s 50 NDPS Act was given to accused. From the scooty also, one white colour bag and one packet of Kellogg's corn flakes were taken out from the said bag.
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8. In crossexamination stated that SI Nirbhay Rana talked to Addl. DCP in his presence but he do not remember the conversation. SI Nirbhay Rana was immediate inferior officer of Inspector Rahul Sahani. No communication was conducted by SI Nirbhay to Inspector Rahul Sahni before leaving the spot. There are residences and commercial shops near the spot. He stayed at the spot from 3.20pm to 10pm and used his mobile number however he cannot tell whether any other member of raiding team was carrying mobile or not. The first document prepared at the spot was notice u/s 50 which was written by him. He also prepared another notice, two seizure memos and rukka at the spot on the instructions of SI Nirbhay Rana. He had not mentioned the number of TVS Jupiter in both notices. One helmet was recovered at the spot however he do not remember the make and its colour. The said helmet was not taken into possession vide seizure memo. He has no knowledge if there is any register maintained in their office for issuance of electronic weighing machine, IO bag and field testing kit. He cannot say how many vehicles are in their office. The log books of official vehicles were maintained by respective drivers. He do not remember how many documents were prepared at the spot. He denied the suggestion that accused persons were pressurized to sign blank papers. Accused Firozuddin handed over a cloth bag to Shaju however he cannot say its size and description. At the spot, the proceedings and documents were prepared simultaneously. He cannot say whether sample was drawn first or seizure memo were prepared first. He cannot tell whether FSL form was prepared first or recovery memo was prepared first. ACP Satbir Dagar was their ACP during relevant time but he cannot tell whether he was on leave or not. Investigating officer
9. PW10 SI Shishu Pal stated that on 04.11.2015 at around 6.45pm duty officer told him that SI Nirbhay detained some persons from whom drugs were recovered thereafter he went to the spot. SI Nirbhay Singh handed over some documents and abovesaid two parcels thereafter he prepared the site plan and from telephone, he got the FIR from PS and arrested the accused persons. On the next day i.e. on 05.11.2015 handed over the report u/s 57 NDPS Act to the Case No. SC/9343/2016 State Vs. Firozuddin @ Bittu & Anr. Dated: 28.07.2022 Page No. 8 of 26 Reader of ACP. Accused Shaju took the police to the new guest house where he stayed. He collected the photocopy of entry/guest register, recorded the supplementary disclosure statement of both the accused persons, he also recorded the statement of the owner of scooty. In crossexamination stated that he cannot tell which mobile no. used by him to know the FIR number. He denied suggestion that all the documents were prepared in PS. He cannot tell at what time report u/s 57 NDPS Act was prepared and also do not remember as to what time the seal was handed over by me. He cannot tell who brought his motorcycle from the spot. He cannot tell when he visited Navdurga hotel and also its room number and floor, he did not ask CCTV footage. He also did not ask the hotel owner in his statement as to who was the author of the entry of hotel register. The raiding team member had gone to the spot by a govt vehicle i.e. Tavera. He did not collect the log book of said vehicle from the driver. He also stated that he cannot comment regarding the movement of said vehicle on 04.11.2015 from SR Southern range to North district and from North District to SR Southern range. He did not mention the position of raiding party member from site plan. He also do not remember the colour of scooty and also do not remember if he gets any helmet from the spot. He cannot tell how the scooty was taken from spot to PS however one of the raiding team member had driven the same to PS. The entire raiding team party except the person who drove the scooty to PS went with him in Tavera. He denied suggestion that accused Firozuddin forcibly lifted from his shop. He took the search of scooty but nothing recovered from the said scooty. He also did not conduct any investigation as to whether prior to the present case, both the accused persons contacted each other before the spot. Other witnesses
10. PW2 Murli Mohan, scooty owner stated that on 04.11.2015 Firozuddin took the scooty from him stating that he had urgent work in Zakir Nagar. Firozuddin told him to return the scooty within 05 minutes but when he did not return the scooty then he called him. He denied suggestion that under influence of police, he stated that scooty was given to Firozuddin. PW3 ASI Uma Shankar stated that on 05.11.2015, he posted as SO to ACP, SR. On that day ACP Satyavir was Case No. SC/9343/2016 State Vs. Firozuddin @ Bittu & Anr. Dated: 28.07.2022 Page No. 9 of 26 on leave then ACP Manishi Chandra was looking after his duty. SI Shishu Pal handed over a report u/s 57 NDPS Act. He could not produce the same before ACP on said date as he did not visit the office due to some office work, he placed the same before him on the next day. In crossexamination stated that IO handed over the document Ex PW3/A on 05.11.2015 at around 10.30am but he had not mentioned the said time in any document. He further denied suggestion that Ex PW3/A and Ex PW3/B are manipulated.
11. PW4 Ct Arun Kumar deposited the pullandas with road certificate along with FSL form to FSL, Rohini. PW6 Manmohan, Record Keeper, Transport Authority exhibited the complete record of the vehicle DL 3SDA 3051 make TVS Jupiter. PW7 ASI Lalit Kumar storekeeper stated that on 04.11.2015 he had handed over seal no. '1, SPL CELL SR' to SI Nirbhay Singh. On 05.11.2015 the said seal was handed over by HC Hemant. PW8 SI Balkar, Duty officer stated that at around 7.30pm HC Hemant brought the rukka for registration of the case. He lodged a DD entry in DD register in this regard for starting registration of the case which is DD No. 12A dated 04.11.2015 thereafter got registered the FIR through Ct Joginder on computer system. The computer copy of FIR and original rukka was handed over to HC Hemant to hand over the same to SI Shishu Pal for further investigation. HC Hemant came alone and he stayed with him for around 02 hours. PW9 Dr Aadesh Kumar, Sr Scientific Officer stated that in the present FIR, 08 sealed cloth parcels were received duly sealed with seal of SR1 and SHO SPL CELL 1 and samples found to be containing Diacetylmorphine to the extent of 5.4%, 5.2%, 5.2%, 5%, 4.5%, 5%, 4.7%, 5.1%.
12. PW11 ASI Sanjeev exhibited the malkhana register. PW12 SI Ranjeet Singh stated that he collected the FSL result and prepared the challan and filed in the court. PW13 Insp. Udaiveer, SHO put the seal of SPL CELL SHO 1 on all the pullandas as well as on FSL form and also put his signature on the pullandas. PW15 Harish Singh, receptionist of Navdurga hotel stated on 01.11.2015 accused Shaju came to guest house and booked a room and made entry in guest register however unable to identify the accused. PW16 Manishi Chandra, Addl. DCP stated that on 04.11.2015, ACP was on leave thereafter he was looking Case No. SC/9343/2016 State Vs. Firozuddin @ Bittu & Anr. Dated: 28.07.2022 Page No. 10 of 26 after his work. At around 2.00pm he received call on his official number from SI Nirbhay that he received source information then he had given permission and authorization for the same. On 05.11.2015 SI Nirbhay Rana through his team incharge Insp Rahul Sahani forwarded a report which was put up before him by Reader of ACP in compliance of section 57 NDPS Act. He had not given any written authorization to SI Nirbhay to conduct any raid. He do not know whether Insp Rahul Sahani was present in office on 04.11.2015 or not. He denied suggestion that he was not authorized to give authorization to SI Nirbhay Rana.
13. Both the accused in their statements u/s 313 CrPC denied all the incriminating put to them. Accused Shaju stated that he had come to Delhi prior to 04.11.2015 to offer namaj at Dargah where he was picked up by police. Accused Firozuddin stated that he was picked up from his home and nothing incriminating was recovered from his possession. Accused Firozuddin examined DW1 Mohd. Nadeem in his defence who stated that on 04.11.2015 some 78 police officers in plain clothes took the accused forcibly from his shop. In crossexamination sated that accused Firozuddin was running a kabadi shop. None of locality persons protested as to why accused picked up Firozuddin and he came to know from wife of accused at around 89pm that accused was arrested. He has not made any complaint to any Sr police officials.
Material Exhibits:
14. Ex PW8/A is FIR, Ex PW1/G is rukka, Ex PW8/B is endorsement on the rukka. Ex PW1/A is DD no. 13 dated 04.11.2015 regarding receiving of secret information, Ex PW1/C is DD no. 14 dated 04.11.2015 regarding issuance of seal, IO kit bag etc, Ex PW1/DX is DD no. 23 dated 04.11.2015 regarding the fact of calling SI Shishu Pal at the spot for further investigation, Ex PW1/H is scaled site plan, Ex PW1/F is seizure memo of heroin from scooty of Firozuddin @ Bittoo, Ex PW1/E is the seizure memo of heroin from accused Shaju, Ex PW10/E is seizure memo of scooty, Ex PW10/H is seizure memo of entry register of hotel Navdurga regarding stay of accused Shaju, Ex PW10/X is register, Ex PW10/B is personal search memo of accused Shaju with two mobile Case No. SC/9343/2016 State Vs. Firozuddin @ Bittu & Anr. Dated: 28.07.2022 Page No. 11 of 26 phones, Ex PW10/D is seizure memo of accused Firozuddin @ Bittoo with one mobile phone, Ex PW10/C is arrest memo of accused Firozuddin, Ex PW10/A is arrest memo of accused Shaju, Ex PW10/G is disclosure statement of accused Firozuddin, Ex PW10/F disclosure statement of accused Shaju, Ex PW10/J is supplementary disclosure statement of accused Firozuddin, Ex PW10/I is supplementary disclosure statement of accused Shaju, Ex PW1/B is DD no. 13 produced from office of ACP, Special Cell, Ex PW3/A is report u/s 57 NDPS Act, Ex PW1/D is notice u/s 50 NDPS Act given to Shaju, Ex PW1/E is notice u/s 50 NDPS Act given to Firozuddin, Ex PW9/A is FSL report, Ex PW4/B is road certificate, Ex PW11/A is malkhana entry, Ex PW8/E is certificate u/s 65B Indian Evidence Act, Ex PW7/B is copy of seal movement register, Ex PW2/B is RC of scooty, Ex PW2/X is photographs of scooty, Ex DY & DX are photographs of front gate of Rajdoot hotel, Ex PW3/B is entry of report u/s 57 NDPS Act, Ex PW8/C and Ex PW8/D are the entries in relevant register, Ex PW10/DX is information under RTI regarding log book of vehicle no. DL 1CJ 7345.
15. Ld. Counsel for accused Shaju submitted that there is no compliance of section 41 NDPS Act as there is no search authorization given by Addl. DCP Manishi Chandra as the recovery is from the conveyance i.e. TVS Jupiter scooter. Furthermore, there is also non compliance of section 42 as SI Nirbhay Rana PW1 despite being subordinate and member of team of Inspector Rahul completely bypasses him and told the information to Addl. DCP Manishi Chandra for which there is no written document. Addl. DCP is not the immediate superior ofcicer. PW Manishi Chandra (ACP) has stated in his examination in chief that he had seen DD entry u/s 42 as well as report u/s 57 NDPS Act and marked it to the team incharge Rahul Sahni with direction to Reader however no role has been assigned to Inspector Rahul Sahni. He has not been made a witness in this case therefore, there is total non compliance of section 42. PW4 ASI Uma Shankar, SO to ACP not made any whisper about the secret information apart from the report u/s 57 NDPS Act. The link from SI Nirbhay Rana to ACP Manishi Chandra is missing. There is a defect in notice u/s 50 NDPS Act as the applicant has not been apprised that he has legal right to be searched before magistrate and Case No. SC/9343/2016 State Vs. Firozuddin @ Bittu & Anr. Dated: 28.07.2022 Page No. 12 of 26 gazetted officer. PW1 Nirbhay Rana in examination in chief stated that all the documents were prepared by him however PW14 HC Ravinder Saroha stated that he has prepared the documents. However he had not specifically mentioned that those documents were prepared by him on the instructions of SI Nirbhay Rana. Apex Court in case titled Kishan Chand Vs. State Crl. Appeal No. 186/2017 dated 21.04.2017 have granted benefit to the accused on the ground of contradiction over the fact who has prepared the documents. Ld. Counsel submits despite the occurrence which took place in broad day light at a busy place, no single witness was joined. PW12 Ranjit Singh is also shown to be part of raiding team however in his testimony he has not stated anything about the raid but only stated that he had collected the FSL result and prepared the challan. The seal was not handed over to any independent witnesses and furthermore, the recovery was effected from phone on 04.11.2015, however samples were sent to FSL on 09.11.2015 which is clearly after 72 hours in contravention to the notification 1/89 of NCB. The sample received at FSL is either more than or less than 10 gm. The samples were not brought before the court during examination. There is no log book entry produced and the vehicle which is alleged to have come to spot is infact on a movement from Southern range to North district. PW10 Sishupal categorically stated that he did not conduct investigation as to how both accused were in contact with each other or on telephone. No interpretor was called at the spot as the accused is a native of Kerala and only knows Malyalam. He is not explained the notices in Malyali language. There are contradictions in the statement of PW5 HC Hemant, PW1 Nirbhay, PW10 SI Sishupal and PW14 HC Ravinder on the factum of makeup of scooty, presence of shops, houses, etc near the place of occurrence, colour or presence of helmet. Ld. Counsel submits that prosecution did not try to investigate over the fact how both the accused who are from different states came to know each other. There is no prior contact between both of them shown. Ld. Counsel submits that entire proceedings conducted at the spot do not appear to be at all credible. There is total non compliance of mandatory provisions. Prosecution unable to prove its case beyond reasonable doubt hence, Case No. SC/9343/2016 State Vs. Firozuddin @ Bittu & Anr. Dated: 28.07.2022 Page No. 13 of 26 accused persons are entitled to be acquitted. Written submissions also filed on behalf of accused.
16. Ld. Counsel for accused Firozuddin submits that PW1 Nirbhay Singh was not authorized to conduct the proceedings and also did not communicate secret information to immediate superior officer hence the mandatory provision is not complied therefore, for non compliance of section 41 and 42, accused is entitled to be acquitted (relied upon Karnail Singh vs. State of Haryana 2009(10) SCALE 255, Darshan Singh Vs. State of Haryana 2016 (1) RCR Crl). Section 50 does not give option of search of vehicle even though the description and registration number of vehicle was already with the police team which itself shows non availability of vehicle at the spot. Recovery was not effected in presence of magistrate or gazetted officer therefore, there is non compliance of section 50 (relied upon Arif Khan @ Aga Khan Vs. State of Uttarakhand Crl. Appeal no. 273/2007 dated 27.04.2018 (SC)). There is non examination of independent witnesses despite presence at the spot. The secret informer is also not cited as witness. The mobile phones from both accused were seized however through those mobile phones, the movement of accused persons is not substantiated. It is also not substantiated that how both of them know each other. Absence of inquiry over the said mobile phone creates doubt over the veracity of prosecution case. The testimony of PW14 ASI Ravinder Saroha creates definite doubt over the prosecution case. He in crossexamination stated that he cannot say as to whether the samples were drawn first or the seizure memo was prepared first. He also cannot say whether the sample were sealed first or recovery memo was prepared. Ld. Counsel submits that he could not even tell whether FSL form was prepared first or other proceedings were conducted. The testimony of witnesses also creates doubt upon the spot. PW1 main IO could not tell which document he had prepared first. PW5 stated that notice u/s 50 was prepared by SI Nirbhay Singh whereas PW14 prepared that first document was prepared on the spot was notice u/s 50 by him under the instructions of SI Nirbhay Rana. PW1 stated that the spot was not having any house, shop or office whereas PW5 stated that the spot was inhabited by innumerable persons as there are number of kothis and Case No. SC/9343/2016 State Vs. Firozuddin @ Bittu & Anr. Dated: 28.07.2022 Page No. 14 of 26 houses at the spot. PW14 stated that there are houses and commercial shops near the spot. PW1 stated that accused was having red colour helmet, PW10 stated that he do not remember if he had seen any helmet but no helmet was seized. PW5 stated make of the scooty was Honda Activa, PW14 stated that it was TVS Jupiter, PW10 stated that he had no knowledge of make of scooty. PW1 stated that secret informer was discharged after pointing out the accused persons however in crossexamination stated he discharged him 23 minutes prior to the apprehension of accused persons. There is no log book entry regarding the use of government vehicle. The said government vehicle was not at all used as clear from the RTI information. PW1 did not talk about the use of FSL form. PW5 stated that no FSL form was prepared in his presence. He could not state anything about the FSL forms. PW11 also stated that there was only one FSL form however he has no knowledge about the contents of FSL form. The accused was forcibly picked up from his shop and entire recovery is planted over him. Ld. Counsel submits that the entire case of prosecution is unreliable therefore, accused is entitled to be acquitted. Besides oral arguments, Ld. Counsel also filed written submissions.
17. Ld. Addl. PP submitted that the prosecution case in this case over the factum of recovery of contraband and apprehension of accused dependent upon testimony of PW1, PW5 and PW14. There is no material discrepancy in the testimony of these witnesses regarding recovery of contraband and the apprehension of accused persons. The FSL report duly corroborates the presence of diacetylmorphine from the samples. There is due compliance of section 42 and 50 NDPS Act. The accused persons themselves refused to search before the gazetted officer and magistrate. Ld. Addl. PP submits that mere non joining of independent witnesses and seizure of CDR details do not effect the prosecution case in these facts and circumstances. There is no material infirmity in the procedure adopted. The prosecution able to prove its case beyond reasonable doubt hence, both the accused are liable to be convicted for the offence charged.
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18. Arguments heard. Record perused.
19. It is settled principle of appreciation of evidence that prosecution has to prove its case in the manner projected by them. The material circumstances to be appreciated in this case is the secret information, preparation of raiding party, the manner of reaching of raiding party at the spot, use of vehicle by the raiding party in reaching the spot, appearance of accused persons at the spot in the manner relied by the prosecution thereafter, the apprehension of accused and recovery of contraband from them. The effect of non joining of independent witnesses or the non seizure of CDR of the accused persons. The compliance or non compliance of mandatory provisions u/s 42 and 50 NDPS Act. Secret information
20. The secret information was recorded vide DD no.13 wherein PW1 SI Nirbhay Singh recorded that today the secret informer came to office and informed that accused Shaju will come around 03.30 PM for receiving narcotic drugs from accused Firoz @ Bittu which was communicated to Addl. DCP Manishi Chandra on his mobile phone. The said fact is also confirmed through the testimony of PW1 SI Nirbhay Singh and PW16 Addl. DCP Manishi Chandra. However, from the testimony it is not clear why the intimation was given to Addl. DCP through phone and not physically. It is not all stated by PW1 SI Nirbhay Singh that he had given information to Addl. DCP because there were no immediate officer present in the PS and were outside office. The immediate superior officers as per PW1 are Inspector Rahul Sahni and Inspector Deshraj Yadav, however there is nothing on record that they were informed. This itself creates some suspicion over the manner of receiving the information and the communication of information.
Constitution of raiding team
21. PW1 SI Nirbhay Singh stated that he constituted the raiding team consisting of SI Ranjit Singh, HC Hemant, HC Ravinder, HC Kulbir, Ct. Rajesh and Ct. Mohit. In present case only three raiding team members were examined namely PW1 SI Nirbhay Singh, PW5 HC Hemant, driver of the Tavera vehicle in which raiding team reached the spot and PW14 HC Ravinder Saroha. Other raiding team Case No. SC/9343/2016 State Vs. Firozuddin @ Bittu & Anr. Dated: 28.07.2022 Page No. 16 of 26 members i.e. SI Ranjit Singh, HC Kulbir, Ct. Rajesh and Ct. Mohit were not examined. PW5 in his examination in chief though stated that SI Ranjit is also part of raiding team however in crossexamination not stated that SI Ranjit is part of raiding team but only stated other members except SI Ranjit Singh. Infact, SI Ranjit Singh was examined in the court as PW14, the IO who has presented the chargesheet never stated that he was part of raiding team. This itself somehow creates doubt over constitution of raiding team. Kit bag, field testing kit and electronic weighing machine
22. PW1 in his deposition submits that after issuance of seal, he also took the IO kit bag, field testing kit and electronic weighing machine and thereafter with the team reached the spot. This witness nowhere stated from where he got the field testing kit and electronic weighing machine. PW7 ASI Lalit Kumar, the storekeeper only stated to have issued the seal, nowhere said the he had also issued the field testing kit and weighing machine. PW5 HC Hemant in cross examination specifically stated that IO kit, electronic weighing machine, field testing kit and seal were kept with the record keeper and the record keeper maintains the record with regard to the movement of above articles however the record keeper/storekeeper PW7 only deposed about the issuance of seal not about the IO kit, electronic weighing machine and field testing kit. The necessary corroboration of issuance of IO kit, electronic weighing machine and field testing kit is missing through the documentary record which creates doubt whether infact the entire team left for the spot alongwith weighing machine, testing kit. Tavera vehicle no. DL 1CJ 7345
23. The entire raiding team went to the spot in the Tavera government vehicle however there is no corresponding logbook exhibited to substantiate the fact. PW5 HC Hemant, the driver though stated that he has to maintain the logbook however not stated that he had made any entry in the log book. This fact is clear from his crossexamination. PW5 also stated he came to spot by driving vehicle but having no knowledge who maintains log book. It has also not came in the testimony of any other witness that any logbook was maintained. PW5 stated that they have parked the vehicle nearby the spot and took the position in front Case No. SC/9343/2016 State Vs. Firozuddin @ Bittu & Anr. Dated: 28.07.2022 Page No. 17 of 26 of the vehicle however the presence of said vehicle is also not shown in the site plan Ex.PW1/H. During crossexamination, the defence counsel put the RTI entry of the said date which suggests that the said vehicle was not used for coming to spot on that day. Therefore, in this scenario the use of Tavera vehicle in coming to spot also appears doubtful. It makes suspect whether infact raiding party came to spot in the manner stated.
Proceedings at the spot
24. PW1, PW5 and PW14 stated that they reached the spot at around 02.50 PM and the accused Shaju came to the spot at around 03.20 PM however none of the witnesses could state in what manner this accused came to the spot. PW5 categorically stated he cannot tell whether he had come on foot or by bus or in any vehicle. These witnesses have taken their positions at the spot but unable to tell the said fact which is natural part of observation if anybody is present at the spot. PW1 SI Nirbhay Singh is the IO, the head of raiding team party unable to tell the position of the raiding team members at the spot however PW5 gave another version to the position of raiding team members. PW5 stated that he was in front of vehicle and PW1 SI Nirbhay Singh was on the back of vehicle but he cannot tell the position of other raiding party members. PW14 on the other hand submitted that the raiding team members are distributed on both sides of road which is completely contradictory to statement of PW1 who stated only at one side of the road, the entire raiding party was present. PW1 also stated that he cannot tell whether the raiding party was positioned in a straight line or in a radius. The witnesses unable to tell this material fact which is necessary to assume their presence at the spot particularly when there is no independent witness joined at the time of apprehension and search.
25. All the raiding party members i.e. PW1, PW5 and PW14 stated accused Firozuddin came on scooty wearing the helmet. Helmet and keys were seized, but malkhana entries regarding them not exhibited. There is a contradiction in the testimony of witnesses regarding the make of scooter. One of the witness stated it is Activa, other stated it is Jupiter.
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26. PW1, PW5 and PW14 stated that after Firozuddin handed over a packet to Shaju, the raiding team apprehended them thereafter, notice u/s 50 was given and on search the contraband heroin was recovered. Seizure and sealing proceedings were conducted. PW1 stated that entire documents were prepared by him at the spot whereas PW14 stated he has prepared the same on the instructions of PW1. It is expected of the witness from the spot that when he was present at the spot he can describe the proceedings at the spot with some certainty. PW1 SI Nirbhay Singh in crossexamination stated that no house, shops or office near the spot where they took the position. PW14 on the other hand submitted there are residential houses, commercial shops at the spot. PW5 HC Hemant stated there were no shops near the spot. As per the site plan, the Rajdoot Hotel is opposite to the place of apprehension of accused shown as mark A in the site plan however PW1 SI Nirbhay Singh stated that he cannot tell whether Rajdoot Hotel was visible from there or not. This PW1 who is the main witness has given evasive answers regarding the descriptions or position of members at the spot. Interestingly PW14 who himself stated to have written all the documents, in crossexamination stated, at the spot proceedings and documents were prepared simultaneously. He cannot tell whether the samples were drawn first or seizure memo was prepared first. He cannot say whether the sample were sealed or thereafter recovery memo was prepared or vice versa. He cannot say whether the FSL form was prepared first or it was prepared after preparation of recovery memo. It is natural course that documents could be prepared only after the confirmation of contraband or drawing of samples however this witness is not certain over the sequence how the proceedings were conducted which infact create doubt whether the proceedings were conducted in the manner relied by the prosecution at the spot.
Disclosure statements of accused persons vis a vis the connection with drug mafia and the mobile phones of both the accused
27. During investigation, PW10 IO Shishpal stated to have recorded the disclosure statement of accused Firozuddin and Shaju on 04.11.2015, and thereafter on 06.11.2015. In the disclosure statement dated 04.11.2015 as per the case of Case No. SC/9343/2016 State Vs. Firozuddin @ Bittu & Anr. Dated: 28.07.2022 Page No. 19 of 26 prosecution, accused Mohd. Firozuddin @ Bittu stated that 34 years back, he had a connection with one Naushad who asked him that somebody had snatched his ganja from him thereafter, he facilitated the recovery of money of the said ganja thereafter, on commission he used to sell the ganja of Naushad, and around 2 years back, he given him to sell the pudia (packet) of heroin. In the meanwhile, one Sheikh also seen him who stated that one of his person will bring the drugs from Afghanistan thereafter, he used to work for him, and while came to deliver the drugs to accused Shaju of Kerala, he was apprehended. In the supplementary disclosure statement dated 06.11.2015, he disclosed about the mobile number of one Sameer, Afghan national to whom he is calling for supply of heroin and further given the number of other persons to whom he is supplying the heroin and on the instance of Sameer, he has also supplied the heroin to one Kerala Person. He further stated that at the instance of Sheikh, he had supplied number of time the heroin to the people of Kerala at Bhogal, Ashram, Kasturba Niketan, Lajpat Nagar, Max Hospital. Admittedly as per the case of prosecution, the mobile phone of this accused as well as accused Shaju was recovered from their possession at the spot however there is no investigation over the aspect of his connection with the drug mafia and with accused Shaju.
28. Accused Shaju in his disclosure statement dated 04.11.2015 stated that he is resident of Kerala. 4 years back, he went to Kuwait and due to his weak financial condition, used to work with one Jabbar and at his instance, he started visiting Delhi for taking drugs. Today at the instance of Jabbar, he went to coaccused Bittu whose mobile number was given by him for taking delivery. This accused in his statement categorically stated that he went to take the delivery at the instance of Jabbar from Bittu. As per the prosecution case, when he was apprehended, he was talking on mobile phone and at that time, Firoz @ Bittu also came on scooter. Therefore, from his mobile phone it can be easily corroborated that he was talking to Firoz @ Bittu at that time and police could also verify at whose instance, he was doing all these activities but that apparent corroboration is missing which itself creates doubt of apprehension of accused with mobile in the manner relied by the prosecution. This accused in his Case No. SC/9343/2016 State Vs. Firozuddin @ Bittu & Anr. Dated: 28.07.2022 Page No. 20 of 26 subsequent disclosure statement also stated he also knows one Roshan for supply of heroin however there is no investigation through his mobile phone or at his instance about the apprehension of other accused in Delhi.
29. Both these accused are unknown to each other and it is the bounden duty of the prosecution to connect them with some tangible evidence i.e. through some person or through the mobile phones that they are in contact with each other and other drug mafia, however investigation on that aspect is completely missing which itself creates doubt whether the accused persons are arrested or apprehended with the contraband in the manner projected by prosecution. Effect of non placing on record of mobile records of both accused
30. As per the testimonies of PW1, PW5 and PW14, accused Shaju after reaching at the spot started making calls and walked towards the footover bridge and within 10 minutes accused Firozuddin came on scooty and handed over the contraband parcel. It is also the case of prosecution that mobile phone was also recovered from Firozuddin. To corroborate the fact that accused Shaju was calling from the spot, the prosecution is obliged to collect the CDR of mobiles of Shaju as well as Firozuddin however for the reasons unknown, the IO not collected the seized CDR of mobile phones of Shaju and Firozuddin. Admittedly, Shaju and Firozuddin are not known to each other as per prosecution case and therefore, they must be connected through some person. The said link could easily be located through the mobile connections of both but IO has not tried to investigate the case on said lines. PW5 testified in crossexamination that mobile phone was seized through seizure memo however there is no seizure memo of mobile phones on record but it is found to be seized in personal search memo. PW5 stated that personal search memo was prepared by PW1 SI Nirbhay Singh however it was made by PW10 Shishupal, second IO, and this PW1 SI Nirbhay Singh was not even witness to personal search memo which itself creates doubt whether the said personal search for seizure of mobile phones was prepared at the spot or not.
Seizure of photocopy of entry register of hotel Navdurga
31. As per prosecution case, accused Shaju came to Delhi on 01.11.2015 and stayed Case No. SC/9343/2016 State Vs. Firozuddin @ Bittu & Anr. Dated: 28.07.2022 Page No. 21 of 26 at Hotel Navdurga Guest House. In this regard vide seizure memo Ex.PW10/H seized the photocopy of entry register. The said photocopy bears the two entries at serial no. 210 and 211. The entry of accused Shaju is at serial no. 211 however bare perusal of entry mark PW10/X showing there is cutting of date from 01.08.2015 to 01.11.2015 at two places. This kind of cutting is also at serial no. 210 from where the entry started. There is no explanation of this cutting in the statement of IO PW10 or in the statement of PW14 Harish Singh, Receptionist of the Hotel from whom the said photocopy was seized. PW14 Harish Singh not identified the accused in court and further during investigation when this register was seized on 05.11.2015, the police had not taken the accused to the said hotel for identification. Therefore, it also creates doubt whether the present accused has stayed in the hotel or not. There is one more pertinent aspect to be noticed that the said hotel register mark PW10/X only shows that duration of stay of accused is 'one' day. There is nothing in the said entry that the accused stayed till 04.11.2015. This itself creates doubt whether infact the accused was apprehended on 04.11.2015 or prior to that. Scooty
32. As per the case of prosecution, the accused Firozuddin came on scooty to deliver the contraband. This scooty was taken by the accused from PW2 Murli Mohan who stated that accused Firozuddin had taken his scooty from him for going for an urgent work at Zakir Nagar and he knew him because he has a godown in front of him for five minutes. This witness in crossexamination nowhere gave any explanation why he had not enquired from accused when the scooty was not given in 5 minutes. It is not clear from his testimony when he got the information that his scooty was seized because of Firozuddin in present case. He nowhere stated that he has any doubt over the conduct or business of accused Firozuddin. The scooty in question is not shown at the site plan. The mobile phone of the accused Firozuddin was also recovered therefore, it appears somewhat suspicious that PW2 do not know about the mobile number of present accused when he is giving the scooty. This itself suggests whether infact the scooty was used in coming to the spot in the manner relied upon by the Case No. SC/9343/2016 State Vs. Firozuddin @ Bittu & Anr. Dated: 28.07.2022 Page No. 22 of 26 prosecution. On the other hand, also creating suspicion that accused was lifted from his godown with scooty as stated by PW2 at Taimur Nagar not from the spot.
Site plan
33. Ex.PW1/H is the site plan of the place of occurrence prepared by PW10 SI Sishupal at the instance of SI Nirbhay Rana though PW1 in his examination in chief stated that IO prepared the site plan which bears his signature however nowhere stated that IO prepared the site plan at his instance. The site plan Ex.PW1/H shows mark A as the place where the accused were apprehended and contraband was recovered. This site plan do not show the position of raiding party members. There is nothing in the site plan where the accused Shaju was found standing at first place when he was identified by secret informer and then how he moved to the footover bridge where he met Firozuddin. This site plan also do not show the scooty seized in this case. This site plan also do not show the Tavera vehicle of the police party. Therefore, the site plan in the manner prepared do not appear to be credible. It appears that it was prepared later on, thus create doubt on raid in the manner relied by the prosecution. Effect of non joining of independent witnesses
34. Though the prosecution case could not be disbelieved merely on the basis of the fact that the independent witnesses are not joined. It is hard reality that no public witness willing to join as a witness in a criminal case. It is settled law that the accused persons can be convicted merely on the basis of testimony of police officials, in case their testimony is found unimpeachable and impeccable. However in this case, the prosecution case from the initial i.e. receiving of secret information, constitution of raiding party, going of raiding party to the spot in government vehicle, noticing of accused Shaju at the spot with mobile conversation, then non calling of CDR records and furthermore, the weak description of events by the raiding team members regarding the proceedings conducted at the spot creates doubt over the testimony of the police officials. In these circumstances, their testimony requires due corroboration through independent witnesses or circumstances. No independent witness was joined.
Case No. SC/9343/2016 State Vs. Firozuddin @ Bittu & Anr. Dated: 28.07.2022 Page No. 23 of 26 There are ritualistic statement of raiding party members that PW1 tried to join the witnesses but nobody agreed which is not credible as the place of apprehension of accused is a busy place having shops and residential places, etc and number of persons are passersby. Furthermore, there is no corroboration through the CDR of mobile phones recovered from the accused persons. Hon'ble High Court of Delhi in Gunesh Kumar Vs. State Crl. Appeal No. 1696/2014 dated 18.07.2016 held as under:
"4. I have heard the learned counsel for the parties and have examined the file. At the outset, it may be mentioned that the entire evidence produced by the prosecution consists of only of police officials. No independent public witness was associated at any stage of the investigation. True, testimony of the police officials per se without independent corroboration by public witnesses cannot be discarded. Equally it is true that the charge under the Act is serious and entails serious consequences. The minimum sentence prescribed under the Act is imprisonment for ten years with a fine. In this situation, it is normally expected that there should be independent evidence to support the case of the prosecution, though it is not absolute rule as sometimes it may not be possible to find independent witness at all place at all times. The obligation to join public witnesses is not absolute. The Court will have to appreciate the relevant evidence and will have to determine whether the evidence of the police officials was believable after taking due care and caution in evaluating their evidence.
5. In the instant case, despite having ample time to join independent public witness, no sincere efforts seen to have been made by the Investigating Agency. No plausible explanation has been offered for that. Routine response to have requested 4 / 5 passersby to join the investigation has been given which does not inspire confidence. It has come on record that there were number of shops nearby. But no attempt was made to associate any independent public witness from the shops etc. Under these circumstances, evidence of the police officials is to be perused with great circumspection."
In these circumstances, the non joining of independent witnesses is fatal to the prosecution case.
35. As far as the factum of compliance of section 42 and 50 NDPS Act is concerned, when the proceedings of recovery of contraband and the manner of recovery and Case No. SC/9343/2016 State Vs. Firozuddin @ Bittu & Anr. Dated: 28.07.2022 Page No. 24 of 26 apprehension is doubtful then the documents for compliance of section 42 and 50 NDPS Act also become suspect. Apex Court in Noor Aga Vs. State of Punjab and Anr. 2008(16) SCC 417 in Paragraph 118 observed that that if origin of principle has not been followed and the discrepancies and contradiction have occurred in the statement of PW1 and PW2, the same would cast doubt on the credibility of prosecution case and their claim of upholding procedure established by law in effecting recovery.
36. Apex court in case titled Haneef Khan @ Anu Khan Vs. CBN Crl. Appeal No. 1206/2013 dated 20.08.2019 held in no uncertain terms that though the NDPS Act carries reverse burden of proof but it does not absolve the prosecution from establishing a prima facie case against the accused. Apex court in Noor Aga Vs. State of Punjab (supra) in paragraph 56 observed as under:
"56. The provisions of the Act and the punishment prescribed therein being indisputably stringent flowing from elements such as a heightened standard for bail, absence of any provision for remissions, specific provisions for grant of minimum sentence, enabling provisions granting power to the Court to impose fine of more than maximum punishment of Rs.2,00,000/ as also the presumption of guilt emerging from possession of Narcotic Drugs and Psychotropic substances, the extent of burden to prove the foundational facts on the prosecution, i.e., `proof beyond all reasonable doubt' would be more onerous. A heightened scrutiny test would be necessary to be invoked. It is so because whereas, on the one hand, the court must strive towards giving effect to the parliamentary object and intent in the light of the international conventions, but, on the other, it is also necessary to uphold the individual human rights and dignity as provided for under the UN Declaration of Human Rights by insisting upon scrupulous compliance of the provisions of the Act for the purpose of upholding the democratic values. It is necessary for giving effect to the concept of `wider civilization'. The courts must always remind itself that it is a well settled principle of criminal jurisprudence that more serious the offence, the stricter is the degree of proof. A higher degree of assurance, thus, would be necessary to convict an accused.
The testimony of police officials over the circumstances discussed is sketchy, and conspicuously lacks independent corroboration not only through independent Case No. SC/9343/2016 State Vs. Firozuddin @ Bittu & Anr. Dated: 28.07.2022 Page No. 25 of 26 witnesses but also through available evidence i.e. CDR which can clearly show the position of the accused at spot, their links with other persons dealing in this trafficking, through which both met. The stricter degree of proof is absent as mandated in Noor Aga case (supra).
37. On overall appreciation of evidence on record, the prosecution case over the factum of recovery of contraband and the apprehension of accused in the manner relied upon do not found credible hence the prosecution not able to prove its case beyond reasonable doubt. Accordingly, both the accused Firozuddin @ Bittu and Shaju stand acquitted of the charges framed against them by granting benefit of doubt. Both accused are directed to furnish personal bonds in the sum of Rs. 50,000/ with one surety in like amount u/s 437A Cr.PC.
38. File be consigned to record room after compliance u/s 437A Cr.PC. Case property is confiscated to NCB and the same may be disposed of after the expiry of the period of the appeal/revision.
Announced in the open court on this 28th day of July, 2022 (Ajay Kumar Jain) ASJ/Special Judge NDPS Patiala House Courts New Delhi Case No. SC/9343/2016 State Vs. Firozuddin @ Bittu & Anr. Dated: 28.07.2022 Page No. 26 of 26