Delhi District Court
State vs 1. Vijay (On Bail) on 30 July, 2014
IN THE COURT OF SH. SANJAY SHARMA : SPECIAL JUDGE (NDPS) /
ADDL. SESSIONS JUDGE, (NORTHEAST): KARKARDOOMA COURTS,
DELHI
SC No. : 02/08
FIR No. : 998/07
PS : Nand Nagri
Under Section : 20 (b) (ii) (B) of the NDPS Act
Case ID : 02402R0058542008
State Versus 1. Vijay (on bail)
S/o Sh. Mallu Singh
R/o Gali No. 7, Vikas Nagar,
Loni, Ghaziabad, UP
2. Bhupender (on bail)
S/o Sh. Chander Pal
R/o Gali No. 15, Amit Vihar,
Loni, Ghaziabad, UP
3. Brijesh (P.O.)
S/o Sh. Kuber Singh
R/o Near Dharamvir Property
Dealer, Saraswati Vihar,
Kachhi Colony, Loni,
Ghaziabad, UP
Date of Institution : 04.12.2007
Date of reserving order : 07.07.2014
Date of Judgment : 30.07.2014
J U D G M E N T
State Vs. Vijay & Ors. FIR No. 998/07, PS Nand Nagri Page No. 1/65
The Facts
1. On 21.11.2007 at about 9.35 p.m., SI Rajnikant (PW8) received secret information that three boys alongwith narcotic drugs would come to Bhajanpura from Bhopura Border via Wazirabad Road on a pulsar motorcycle at about 10.30 p.m. SI Rajnikant disclosed this information to Insp. Satish Kumar who satisfied himself about secret information and directed him to take appropriate action. SI Rajnikant formed a raiding team comprising himself, HC Om Pal (PW1) and Ct. Kamal Singh (PW9). He alongwith his raiding team reached at District Park, Wazirabad Road and started checking vehicles by putting barricade.
2. It is further case of the prosecution that at about 10.15 p.m., three boys were seen coming from the side of Bhopura on a black colour pulsar motorcycle No. DL 3 TC 0129 and on the pointing out of secret informer, raiding team signalled them to stop but driver of the motorcycle attempted to run over members of the raiding team. Members of the raiding team apprehended the said three boys alongwith the motorcycle. Motorcycle was checked and a yellow colour polythene containing charas was recovered from diggi on the right side of the motorcycle. On enquiry, the names of the said boys revealed as Vijay, Brijesh and Bhupender.
State Vs. Vijay & Ors. FIR No. 998/07, PS Nand Nagri Page No. 2/65
3. It is further case of the prosecution that SI Rajnikant requested 45 passersby to join investigation but they refused to join the investigation and proceeded on their way without disclosing their names and addresses. He could not serve notice upon the said public persons due to paucity of time. Thereafter, he stated to the accused persons that they could be carrying charas and for that purpose, their personal search was to be conducted. He served notice U/s. 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter "the NDPS Act") upon the accused persons and explained them that it was their legal right that if they required, a Gazetted Officer or a Magistrate could be arranged for conducting their personal search and he also offered personal search of the members of the team. Accused persons refused to exercise their legal rights and endorsed their refusal alongwith signature on the said notices and stated that they were carrying the charas which was already recovered by the raiding team. Recovered charas was weighed and it found to be 400 grams. One sample of 100 gram charas was taken and kept in a white colour polythene and converted into a cloth parcel and remaining 300 gram charas was kept in same polythene and converted into a cloth parcel. The said parcels were sealed with the seal having impression 'RKC'. State Vs. Vijay & Ors. FIR No. 998/07, PS Nand Nagri Page No. 3/65
4. It is further case of the prosecution that form FSL was filled and seal having impression 'RKC' was affixed thereon. In the meantime, Insp. Satish Kumar (PW3) also reached at the spot during patrolling. SI Rajnikant produced the accused persons, the said cloth parcels and form FSL before him. Insp. Satish Kumar also affixed his seal having impression 'SK' on the said parcels and form FSL. SI Rajnikant handed over his seal after use to Ct. Kamal and seized the said cloth parcels, form FSL and motorcycle vide seizure memo Ex.PW1/G. Insp. Satish Kumar had taken cloth parcels, form FSL and a copy of seizure memo to police station and deposited with MHC(M). In due course, FIR was registered U/s. 20, 25 and 29 of the NDPS Act and further investigation was assigned to ASI Rakesh Tyagi (PW5).
5. It is further case of the prosecution that during investigation, ASI Rakesh Tyagi (PW5) arrested accused Vijay, Bhupender and Brijesh vide memos Ex.PW1/D to Ex.PW1/F in this case, prepared site plan Ex.PW5/A, recorded statement of relevant witnesses, sent sample parcel to FSL and submitted chargesheet in the Court. According to FSL report Ex.PX, sample parcel was examined and on Microscopic, Chemical, Thin Layer Chromatographic and HPTLC examination was found to be charas.
State Vs. Vijay & Ors. FIR No. 998/07, PS Nand Nagri Page No. 4/65 The Charge
6. Vide order dated 01.05.2010, all the accused were charged U/s. 20 (b) (ii) (B) of the NDPS Act.
The Prosecution Evidence
7. During trial, prosecution examined 9 witnesses, as under:
(a) PW1 HC Om Pal was a member of the recovery team. He stated that on 21.11.2007, SI Rajnikant received secret information that three boys would come on a motorcycle from the side of Ghaziabad with charas. He stated that SI Rajnikant conveyed the said information to SHO who directed him to conduct the raid and thereafter, SI Rajnikant constituted a raiding party. He stated that they reached at Wazirabad Road near District Park and started checking vehicles after putting barricade.
According to him, at about 10.15 p.m. one black colour pulsar motorcycle bearing registration No. DL 3 TC 0129 came from the side of Ghaziabad and three boys were ridding the said motorcycle. He stated that when SI Rajnikant tried to stop the said motorcycle, its driver tried to hit and run away from there but all the three persons ridding the motorcycle were overpowered.
State Vs. Vijay & Ors. FIR No. 998/07, PS Nand Nagri Page No. 5/65
According to him, SI Rajnikant (PW8) checked the diggi and it was found containing one yellow colour polythene bag. The said bag contained charas. He stated that the charas was weighed and it found to be 400 grams. He stated that notices U/s. 50 of the NDPS Act were served upon all the three accused persons prior to recovery of charas. Carbon copies of the notice U/s. 50 of the NDPS Act are Ex.PW1/A, Ex.PW1/B and Ex.PW1/C respectively.
He stated that IO prepared rukka and handed over to him for registration of the case. He stated that after registration of the case, he alongwith ASI Rakesh Tyagi (PW5) returned to the spot. He stated that ASI Rakesh Tyagi arrested the accused persons vide arrest memos Ex.PW1/D, Ex.PW1/E and Ex.PW1/F respectively. He stated that SI Rajnikant produced parcel before the SHO who arrived at the spot. He stated that SI Rajnikant prepared two parcels and sealed the same with the seal of 'RK'. He stated that seal after use was handed over to Ct. Kamal (PW9). He stated that he could not identify the case property.
This witness was crossexamined by the State wherein he stated that SI Rajnikant asked accused persons that their search was to be taken and if they wanted they could take search of the police officials prior to their search and further, if they wanted they could get State Vs. Vijay & Ors. FIR No. 998/07, PS Nand Nagri Page No. 6/65 themselves searched in the presence of a Gazetted Officer or a Magistrate. He stated that the accused persons refused the offers and endorsed their refusal on the notices Ex.PW1/A, Ex.PW1/B and Ex.PW1/C at point B respectively.
According to him, 100 gram charas out of 400 grams charas was taken out as sample and sealed in a cloth parcel. He stated that SI Rajnikant filled form FSL at the spot and he sealed both the parcels and form FSL with the seal of 'RKC'. He stated that SHO affixed his seal impression 'SK' on both the parcels and form FSL. He stated that SI Rajnikant taken both the parcels and form FSL into his possession vide seizure memo Ex.PW1/G. He stated that ASI Rakesh Tyagi conducted personal search of the accused persons vide memos Ex.PW1/H, Ex.PW1/J and Ex.PW1/K. He stated that notices U/s. 50 of the NDPS Act were recovered in the personal search of accused persons. He stated that ASI Rakesh Tyagi (PW5) prepared site plan at the instance of SI Rajnikant (PW8).
He stated that he was unable to identify the case property due to lapse of considerable time. He denied the suggestion that he was intentionally not identifying the case property. State Vs. Vijay & Ors. FIR No. 998/07, PS Nand Nagri Page No. 7/65
In his crossexamination by the defence, HC Om Pal (PW1) stated that public persons were passing through the spot. SI Rajnikant asked 45 passersby to join the raiding team but none agreed. He stated that SI Rajnikant did not note down names and addresses of such persons. He stated that DD entry was recorded by SI Rajnikant before leaving police station. They left police station at about 9.35 p.m. He stated that they reached at the spot within 5 minutes. He stated that he did not remember as to which of the accused persons was driving the motorcycle. He stated that weighing scale was in the IO bag but he could not say whether weighing scale was manual or electronic. He stated that he did not know about ownership of the motorcycle. He stated that accused persons were arrested at about 5.00 a.m.
(b) PW2 ASI Soma Ram was Duty Officer. On 21.11.2007 at about 11.55 p.m., he registered case FIR Ex.PW2/A on receipt of rukka through HC Om Pal (PW1) and made endorsement Ex.PW2/B on the rukka. According to him, further investigation of the case was assigned to ASI Rakesh Tyagi (PW5).
In his crossexamination by defence, he stated that HC Om Pal (PW1) came to the police station with rukka at about 11.00 p.m. State Vs. Vijay & Ors. FIR No. 998/07, PS Nand Nagri Page No. 8/65
(c) PW3 Insp. Satish Kumar was SHO, PS Nand Nagri. According to him, on 21.11.2007 at about 11.00 p.m. he reached at Wazirabad Road, near District Park while patrolling in area of PS Nand Nagri where SI Rajnikant alongwith staff met him. He stated that SI Rajnikant produced all the three accused persons before him alongwith two parcels, form FSL and a carbon copy of seizure memo.
According to PW3 Insp. Satish Kumar, both the parcels and form FSL were duly sealed with the seal of 'RKC'. He stated that after verification of the facts of recovery of contraband from the accused persons and police officials, he put his seal having impression 'SK' on both the parcels and form FSL and thereafter, he left the spot alongwith both the parcels, form FSL and a carbon copy of seizure memo. He stated that he deposited the said articles with MHC (M) after putting FIR number thereon. He stated that MHC (M) made an entry in the Register No. 19 and he also recorded DD No. 18A. This witness was crossexamined by the State. He stated that SI Rajnikant produced DD No. 11A before him and he forwarded the said DD to senior officer and carbon copy thereof is Ex.PW3/A. He stated that SI Rajnikant conveyed him secret information that three persons would come on a pulsar motorcycle from Bhopura side alongwith narcotic substance and he directed him to conduct the raid. State Vs. Vijay & Ors. FIR No. 998/07, PS Nand Nagri Page No. 9/65
PW3 Insp. Satish Kumar stated that SI Rajnikant produced report U/s. 57 of the NDPS Act regarding seizure of 400 grams of charas and he forwarded the said report to senior officer. Carbon copy of the report U/s. 57 of the NDPS Act is Ex.PW3/B. In his crossexamination by the defence, he stated that IO had not done any writing work in his presence. He left the police station for patrolling in the area at about 7.00 p.m. He could not state the DD number against which he left the police station for patrolling.
(d) PW4 HC Chhote Lal was the sample depositor. According to him, on 08.01.2008, he had taken one parcel alongwith form FSL to FSL, Rohini vide RC No. 328/21 Ex.PW4/A and deposited the sample parcel and form FSL and handed over acknowledgement Ex.PW4/B receipt thereof to MHC (M). He stated that the sample parcel was not tampered in any manner till it remained in his custody.
This witness was not crossexamined by the defence.
(e) PW5 ASI Rakesh Tyagi was the Investigating Officer of this case. According to him, on 21.11.2007 on receipt of copy of FIR and original rukka, he alongwith HC Om Pal (PW1) reached at Main Wazirabad Road, near District Park, Nand Nagri, Delhi where SI Rajnikant (PW8) alongwith Ct. Kamal (PW9) and accused persons namely Vijay, Brijesh and Bhupender were present. State Vs. Vijay & Ors. FIR No. 998/07, PS Nand Nagri Page No. 10/65
According to ASI Rakesh Tyagi (PW5), SI Rajnikant produced the said accused persons before him and handed him over the documents prepared by him. He prepared site plan Ex.PW5/A at the instance of SI Rajnikant, interrogated all the three accused persons and recorded their disclosure statements vide Ex.PW5/B, Ex.PW5/C and Ex.PW5/D respectively. He arrested accused persons vide memos Ex.PW1/D, Ex.PW1/E and Ex.PW1/F and conducted their personal search vide memos Ex.PW1/G, Ex.PW1/J and Ex.PW1/K respectively.
PW5 ASI Rakesh Tyagi further stated that original notices U/s. 50 of the NDPS Act Ex.PW5/F, Ex.PW5/G and Ex.PW5/H respectively were recovered from personal search of accused Brijesh, Vijay and Bhupender respectively. He deposited the motorcycle and notices U/s. 50 of the NDPS Act with MHC (M). He prepared report U/s. 57 of the NDPS Act Ex.PW5/E and produced it before SHO who forwarded it to senior officers. He identified the motorcycle registration No. DL 3 TC 0129 Ex.P1 as the motorcycle which was brought by him from the spot and deposited in malkhana.
In his crossexamination by the defence, he stated that he received copy of FIR at about 11.45 p.m. He stated that he reached at the spot at about 12.00 mid night. He stated that the spot was situated about ½ kilometer away from police station.
State Vs. Vijay & Ors. FIR No. 998/07, PS Nand Nagri Page No. 11/65
In his crossexamination, ASI Rakesh Tyagi (PW5) stated that Insp. Satish Kumar, SHO was present at the spot alongwith SI Rajnikant, other police officials and accused persons when he reached at the spot. He stated that they returned alongwith accused persons to police station at about 4.00 a.m. He stated that arrest memos and personal search memos were prepared by SI Rajnikant and the said documents bear his signatures only. He stated that disclosure statements were prepared by him in his hand writing. He could not state any reason for not taking signatures of HC Om Pal on the disclosure statements. He had not signed malkhana register.
(f) PW6 SI Chaman Lal brought the record regarding receipt of special reports U/s. 57 of the NDPS Act from the office of ACP, Seemapuri. According to him, on 22.11.2007 and 23.11.2007, two special reports U/s. 57 of the NDPS Act Ex.PW6/A and Ex.PW6/B were received in the office of ACP, Seemapuri vide diary no. 6238 dated 22.11.2007 and diary no. 6377 dated 23.11.2007. He identified hand writing and signature of ACP Rajesh Deo since he worked with him. He stated that the special reports Ex.PW6/A and Ex.PW6/B bear signatures of ACP Rajesh Deo at point A respectively. He brought the original diary register and the relevant pages containing the relevant entries of the said register are Ex.PW6/C and Ex.PW6/D respectively. State Vs. Vijay & Ors. FIR No. 998/07, PS Nand Nagri Page No. 12/65
(g) PW7 HC Rishi Raj was MHC (M), PS Nand Nagri, Delhi. According to him, on 21.11.2007 Insp. Satish Kumar, SHO handed him over two sealed parcels and one form FSL duly sealed with the seal of 'RKC' and 'SK' alongwith one carbon copy of seizure memo. He deposited the said articles in the malkhana vide serial no. 4388 in register No. 19. He stated that on 22.11.2007, ASI Rakesh Tyagi deposited personal search articles of accused Vijay, Bhupender and Brijesh vide Serial No. 4389. On 08.01.2008 he, as per direction of SHO, sent sample parcel alongwith form FSL through Ct. Chhote Lal vide RC No. 328/21 Ex.PW4/A to FSL, Rohini.
Relevant pages of register no. 19 containing entry no. 4388 and 4389 are Ex.PW7/A and Ex.PW7/B respectively. He stated that the seals of the parcels remained intact during the period parcels remained in his possession.
(h) PW8 SI Rajnikant was Incharge of the raiding team. According to him, on 21.11.2007 at about 9.35 p.m., he received secret information in the police station from a secret informer that three boys would come from Bhopura Border side with narcotic substance on a motorcycle and would go towards Bhajanpura side. He stated that he produced the secret informer before Insp. Satish Kumar, SHO, PS Nand Nagri and apprised him about the secret information. State Vs. Vijay & Ors. FIR No. 998/07, PS Nand Nagri Page No. 13/65
According to SI Rajnikant (PW8), SHO interrogated the secret informer and directed him to constitute a raiding party. He stated that he formed a raiding party and lodged DD No. 11 Ex.PW3/A and left the police station. He stated that they reached at Wazirabad Road behind police station near DDA Park alongwith secret informer and put barricades on the road. He stated that they waited for the accused persons and at about 10.15 p.m., they saw a motorcycle coming from the side of Bhopura Border. They stopped the motorcycle and found three persons sitting on the motorcycle. He stated that secret informer identified the said persons as the persons having contraband with them.
According to PW8 SI Rajnikant, he checked the motorcycle and found a yellow colour polythene from the diggi on the right side of the motorcycle. He introduced the members of the raiding team to the accused persons. He stated that on enquiry names of the accused persons revealed as Vijay S/o Sh. Mallu Singh, Brijesh Singh S/o Sh. Kuber Singh and Bhupender S/o Sh. Chander Pal. He identified accused Vijay and Bhupender before the Court. He requested 34 passersby to join the proceedings but they refused and left the spot without disclosing their names and addresses. He apprised the accused persons about their legal rights.
State Vs. Vijay & Ors. FIR No. 998/07, PS Nand Nagri Page No. 14/65
According to SI Rajnikant (PW8), he informed the accused persons that their search was to be conducted and if they wanted, their search could be conducted in the presence of Gazetted Officer or a Magistrate but they refused his offers. He prepared three notices U/s. 50 of the NDPS Act and served original notices upon them. Carbon copy of the notices U/s. 50 of the NDPS Act served upon accused Bhupender, Vijay and Brijesh are Ex.PW1/A, Ex.PW1/B and Ex.PW1/C respectively. Accused Bhupender, Vijay and Brijesh refused to exercise their legal rights vide refusals in their hand writing at point B on Ex.PW1/A, Ex.PW1/B and Ex.PW1/C respectively bearing their signatures at point D thereon.
According to SI Rajnikant (PW8), he searched the accused persons but nothing incriminating was found. He opened the polythene packet and on checking it was found to be charas. He weighed the charas and it was found to be 400 grams. He taken out 100 grams charas out of 400 grams charas as sample and kept it in a plastic polythene and converted it into a cloth parcel and remaining charas was kept in the same yellow polythene and converted into a cloth parcel and thereafter, he filled form FSL and affixed his seal having impression 'RKC' on both cloth parcels and form FSL. State Vs. Vijay & Ors. FIR No. 998/07, PS Nand Nagri Page No. 15/65
According to SI Rajnikant (PW8), he seized the parcels, form FSL and motorcycle No. DL 3 TC 0129 vide memo Ex.PW1/G. In the meantime SHO, PS Nand Nagri reached at the spot and he handed him over the said parcels, form FSL and carbon copy of the seizure memo who affixed his seal 'SK' on the said parcels and form FSL, and he took the aforesaid articles with him and left the spot.
SI Rajnikant prepared a rukka Ex.PW8/A and handed it over to PW1 HC Om Pal for registration of FIR. PW1 HC Om Pal left the spot at about 11.45 p.m. He stated that at about 12.15 a.m., PW5 ASI Rakesh Tyagi, Investigating Officer with PW1 HC Om Pal reached at the spot.
According to SI Rajnikant (PW8), PW5 ASI Rakesh Tyagi prepared the site plan at his instance. He handed over custody of the accused persons and documents prepared by him to PW5 ASI Rakesh Tyagi. He stated that ASI Rakesh Tyagi recorded his statement and thereafter, he left the spot. On 22.11.2007, he prepared a special report U/s. 57 of the NDPS Act Ex.PW6/B and submitted it to SHO, PS Nand Nagri. 300 grams charas which was kept in a polythene and converted into a cloth parcel bearing seal of 'RKC' and 'SK' produced before the Court and he identified the said charas as Ex.P1 before the Court. State Vs. Vijay & Ors. FIR No. 998/07, PS Nand Nagri Page No. 16/65
According to SI Rajnikant (PW8), he identified the remnants of the charas which was produced before the Court in an envelope parcel sealed with the seal of 'FSL'. He identified motorcycle Ex.P5 which was recovered from the accused persons. However, the said motor cycle had no diggi and registration plate.
In his crossexamination, he stated that secret informer came to the police station at about 10.30 p.m. He stated that at that time, the Duty Officer and other police officials were present but he could not state their names. He stated that he remained with the secret informer for about 10 minutes. He alongwith the raiding party left the police station at about 10.35 p.m. He stated that SHO talked with the secret informer for about 5 minutes in his office.
In his crossexamination, SI Rajnikant (PW8) stated that three police officials only left for the informed place alongwith the secret informer. He stated that the secret informer pointed out the accused persons from the distance of about 30 meters. He stated that secret informer remained with them for about 40 minutes from the police station to the place of occurrence. He stated that the distance between the police station and place occurrence was about 400500 meters. He stated that they reached at the place of occurrence at about 10.45 p.m. State Vs. Vijay & Ors. FIR No. 998/07, PS Nand Nagri Page No. 17/65 In his crossexamination, SI Rajnikant (PW8) stated that SHO reached at the spot at about 11.00 p.m. SHO remained at the spot for about 1520 minutes. He denied the suggestion that he prepared personal search memos and arrest memos of the accused persons. He denied the suggestion that he prepared the arrest memos and personal search memos of the accused persons and ASI Rakesh Tyagi only signed them. He received his seal from MHCR which was deposited by PW9 Ct. Kamal with him on the next day.
In his crossexamination, PW8 SI Rajni Kant further stated that the public persons were passing through the road at the place of occurrence. He stated that there were no residential houses near the place of occurrence. However, residential houses were situated across the road. He made no investigation regarding the ownership of the motor cycle as investigation was transferred after registration of case.
(i) PW9 Ct. Kamal Singh was a member of the raiding team. He has corroborated depositions of PW8 SI Rajni Kant. According to him, he took cursory search of the accused persons but nothing incriminating was found. He identified the accused persons and the recovered contraband Ex.P1 and Ex.P3 before the Court. He identified the motorcycle Ex.P5 before the Court which was recovered from the accused persons.
State Vs. Vijay & Ors. FIR No. 998/07, PS Nand Nagri Page No. 18/65
In his crossexamination, PW9 Ct. Kamal Singh stated that at about 09.45 p.m. they left the police station after making departure entry in DD register. The distance between the police station and the place of occurrence is 300400 meters. The place of occurrence was on the back side of the police station. He stated that secret information was received by SI Rajnikant and therefore, he could not say as to at what time secret information was received by SI Rajnikant. He stated that all the police officials were in uniform and they reached at the spot on foot. He stated that secret informer pointed out the accused persons from the distance of 1520 paces. He stated that secret informer left the spot at about 10.15 p.m. He stated that PW1 Ct. Om Pal left the spot at about 11.30 p.m. He stated that some public persons were passing through the spot. He stated that SHO reached at the spot at about 11.00 p.m. and he remained at the spot for 1520 minutes. He stated that his statement was recorded by PW5 ASI Rakesh Tyagi at the spot.
Accused Brijesh Declared Proclaimed Offender
8. During the trial, accused Brijesh stopped appearing since 03.09.2011 and in due course, he was declared a proclaimed offender vide order dated 29.05.2012.
State Vs. Vijay & Ors. FIR No. 998/07, PS Nand Nagri Page No. 19/65 Plea of the Defence
9. Material circumstances appearing in evidence against accused Vijay and Bhupender were put to them as required U/s. 313 Cr.P.C. to which they pleaded innocence and claimed false implication.
10. According to accused Vijay, no charas was recovered from him. He stated that no recovery was effected from his possession and the contraband was planted upon him. He stated that the entire writing work was done in the police station and his signatures were obtained on blank papers, written documents and printed proformas.
11. Accused Bhupender also stated on the same lines.
12. Accused persons have not examined any witness in defence evidence.
13. I have heard arguments of Sh. I.H. Siddiqui, Ld. Addl. PP for the State and Sh. Saurabh Kaushik, Advocate for accused Vijay and Bhupender.
14. During the course of arguments, Ld. Addl. PP for the State and Sh. Saurabh Kaushik, Advocate for accused Vijay and Bhupender have taken me through prosecution evidence and documents on record.
State Vs. Vijay & Ors. FIR No. 998/07, PS Nand Nagri Page No. 20/65 Defence Arguments
15. In a nutshell, salient points of arguments of Ld. defence counsel are as under:
(a) Secret information was not sent to senior officers of police despite prior information and as such, there is noncompliance of mandatory provision of Section 42 of the NDPS Act.
(b) Accused persons were not apprised about their legal rights to be searched in the presence of a Gazetted Officer or a Magistrate before conducting search and therefore, prosecution has failed to prove compliance of mandatory provision of Section 50 of the NDPS Act.
(c) There is delay of about 46 days in sending sample parcel to FSL, Rohini and therefore, possibility of tampering cannot be ruled out. More so, when seal was returned to SI Rajnikant on the next day.
(d) No public witness was associated during search and seizure proceedings despite availability.
(e) There is no investigation qua ownership of the motorcycle.
(f) Prosecution has failed to prove that accused persons were in conscious possession of the contraband.
(g) There are inherent contradictions in the depositions of the prosecution witnesses regarding the raid and apprehension of accused. State Vs. Vijay & Ors. FIR No. 998/07, PS Nand Nagri Page No. 21/65 Prosecution Arguments
16. Sh. I.H. Siddiqui, Ld. Addl. PP for the State submitted as under:
(a) Recovery was effected from a public place and therefore, Section 42 of the NDPS Act is not applicable. The present case is covered U/s. 43 of the NDPS Act.
(b) Recovery was not effected from personal search of the accused persons and the contraband was recovered from diggi of the motorcycle. Therefore, Section 50 of the NDPS Act is not applicable.
(c) Even otherwise, there is substantial compliance of Section 50 of the NDPS Act.
(d) SI Rajnikant, Incharge, recovery team made efforts to join public persons but none of them agreed and therefore, non examination of public persons is not fatal to the case of prosecution.
(e) There is no material contradiction in the depositions of the members of the raiding team regarding search, seizure and preservation of the recovered charas.
(f) Delay of 46 days is insignificant when FSL report shows that the sample parcel was received in intact condition and seals matched with tallied with specimen seals as per forwarding letter. State Vs. Vijay & Ors. FIR No. 998/07, PS Nand Nagri Page No. 22/65 Re: NonCompliance of Section 42 of the NDPS Act
17. According to Ld. Addl. PP for the State, the contraband was recovered from a vehicle in transit in a public place, Section 43 of the NDPS Act is applicable and not Section 42 of the NDPS Act.
18. According to Ld. defence counsel, seizure was effected upon receipt of secret information and not by way of chance recovery and therefore, it was mandatory to comply with Section 42 of the NDPS Act.
19. The case of the prosecution is that SI Rajnikant (PW8) received secret information on 21.11.2007 at about 9.35 p.m. in the police station Nand Nagri and thereafter, he produced the secret informer before Insp. Satish Kumar (PW3) and prepared a raiding team and reduced the secret information into writing vide DD No. 11 A Ex.PW3/A. According to Insp. Satish Kumar (PW3), SI Rajnikant had produced DD No. 11A Ex.PW3/A before him and he forwarded it to senior officers.
20. Therefore, it is clear that the seizure was effected pursuant to receipt of a secret information and not by way of a chance recovery. It was mandatory to comply with provision of Section 42 of the NDPS Act.
State Vs. Vijay & Ors. FIR No. 998/07, PS Nand Nagri Page No. 23/65
21. In Directorate of Revenue Intelligence vs. Manjinder Singh, Crl. L.P. 310/2013, decided on 23.01.2014; Hon'ble Delhi High Court held as under:
"10.....In the present case, however, the recovery from the vehicle on a public highway was not as a matter of pure chance but on specific advance information and therefore requirements of Section 41 & 42 of the NDPS Act had to be complied with."
22. In Om Prakash vs. State, Crl. A. 453 of 2014, decided on 23.05.2014; Hon'ble Delhi High Court held as under:
"74. In the first place it should be observed that Section 43 of the NDPS Act would apply when a police officer apprehends narcotics drugs and psychotropic substances from a person in a public place without any prior intimation. In such a scenario, obviously, there will be no occasion for recording in advance the grounds of belief or communicating it to any superior officer. However, where the raiding officer proceeds to a public place on the basis of prior information which he has recorded in writing, then the question of applicability of Section 43 would not arise. In such circumstances, the proviso to Section 42 mandates that the officer must record the grounds warrant, the evidence may be concealed or the offender may escape.State Vs. Vijay & Ors. FIR No. 998/07, PS Nand Nagri Page No. 24/65
75. The mandatory nature of the above requirement of law regarding recording the "grounds of belief"
was explained in Karnail Singh Vs. State of Haryana (2009) 8 SCC 539 as under:
"In conclusion, what is to be noticed is Abdul Rashid did not require literal compliance with the requirements of Sections 42(1) and 42(2) nor did Sajan Abraham hold that the requirements of Section 42(1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as follows:
(a) The officer on receiving the information (of the nature referred to in Subsection (1) of Section (42) from any person had to record it in writing in the concerned Register and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of Clauses (a) to (d) of Section 42 (1).
(b) But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per Clauses (a) to (d) of Section 42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.State Vs. Vijay & Ors. FIR No. 998/07, PS Nand Nagri Page No. 25/65
(c) In other words, the compliance with the requirements of Section 42 (1) and 42 (2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is after the search, entry and seizure. The question is one of urgency and expediency.
(d) While total noncompliance of requirements of Subsections (1) and (2) of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance of Section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or nonsending a copy of such information to the official superior forthwith, may not be treated as violation of Section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstances being a clear violation of Section 42 of the Act. Similarly, where the police officer does not record the information State Vs. Vijay & Ors. FIR No. 998/07, PS Nand Nagri Page No. 26/65 at al, and does not inform the official superior at all, then also it will be a clear violation of Section 42 of the Act. Whether there is adequate or substantial compliance with Section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to Section 42 by Act 9 of 2001.
76. In the present case, DD No. 13 only records the fact that the secret informer told PW10 about the possibility of the Appellant and his brother Inder Dev coming to the Kali Mata Mandir at around 08.30 p.m for handing over a consignment of opium. The recording in DD No. 13 does not state that PW10 believes that if a search warrant was sought to be obtained, the offender might suspect apprehension or that the evidence may be concealed. The above mandatory requirement of law has been reiterated in State of Orissa Vs. Loaxman Jena Jt 2002 (5) SC 1 wherein para 7 it was observed as under:
"7. The mandate of law, as incorporated under the Act, is required to be strictly compiled in view of the grave consequences which are likely to be followed on proof of illicit article under the Act. The legislature had enacted and provided certain safeguards in various provisions of the Act including Sections 42 and 50, in all cases which must State Vs. Vijay & Ors. FIR No. 998/07, PS Nand Nagri Page No. 27/65 be proved to have been strictly followed. The harsh provisions of the Act cast a duty upon the prosecution to strictly follow the procedure and comply with of safeguards."
77. To the same effect is the decision in Kishan Chand vs. State of Haryana (2013) 2 SCC 502. In the present case, therefore, the Court is of the view that the trial Court erred in overlooking the obvious violation of the mandatory requirement of Section 42 of the NDPS Act."
23. In the present case, SI Rajnikant (PW8) reduced the secret information into writing vide DD No. 11A Ex.PW3/A and submitted it to Insp. Satish Kumar (PW3) who forwarded it to senior officers. However, neither the original DD No. 11A has been produced nor any evidence was led to prove that the secret information was forwarded or received by senior officers of police. PW6 SI Chaman Lal brought the record from the office of ACP, Seemapuri, but he has neither produced original DD No. 11A nor the diary register containing receipt thereof in his office. As such, it can be concluded that Insp. Satish Kumar (PW3) has not forwarded the secret information to senior officers of police. Total noncompliance of Section 42 (1) (2) of the NDPS Act is impermissible and a clear violation of mandatory requirement of law.
State Vs. Vijay & Ors. FIR No. 998/07, PS Nand Nagri Page No. 28/65 Re: NonCompliance of Section 50 of the NDPS Act
24. According to Ld. Addl. PP for the State, Section 50 of the NDPS Act was not applicable as the recovery was not effected from personal search of the accused persons but from diggi of the motor cycle. He stated that mere fact that personal search of the accused persons was undertaken would not make any difference as no incriminating article was recovered from their personal search. In the alternative, the prosecution has proved that accused persons were made aware of their legal right to be searched in the presence of a Gazetted Officer or a Magistrate, if they required and as such, prosecution has proved compliance of Section 50 of the NDPS Act.
25. On the contrary, Ld. defence counsel submitted that Section 50 of the NDPS Act is applicable as the seizure was effected pursuant to a secret information and not by way of chance recovery. He stated that before effecting search of the polythene bag, notice U/s. 50 of the NDPS Act was given and person of the accused persons were also searched after seizure and therefore, Section 50 of the NDPS Act is applicable. He stated that accused persons were not informed about their legal right to be taken to a Gazetted Officer or a Magistrate. He stated that there is violation of Section 50 of the NDPS Act. State Vs. Vijay & Ors. FIR No. 998/07, PS Nand Nagri Page No. 29/65
26. The case of the prosecution is that on 21.11.2007 at about 9.35 p.m., SI Rajnikant (PW8) received a secret information that three boys would be coming on a motorcycle from Bhopura Border side with narcotics substance and would be going towards Bhajanpura side and thereafter, he produced the secret informer before Insp. Satish Kumar (PW3) who after confirming the secret information directed SI Rajnikant to form a raiding party and conduct raid and thereafter, SI Rajnikant reduced the secret information into writing and produced it before Insp. Satish Kumar (PW3) and a carbon copy thereof is Ex.PW3/A. He formed a raiding party and reached at Wazirabad Road, near DDA Park alongwith secret informer and after barricading, he with his team waited for the accused persons. It was further case of the prosecution that at about 10.15 p.m., secret informer identified the accused persons who had come on a motorcycle and thereafter, they were apprehended and on checking, a yellow colour polythene was found in diggi of the motorcycle. It was further case of the prosecution that SI Rajnikant informed the accused persons about their legal right to be searched in the presence of a Gazetted Officer or a Magistrate and served a written notice U/s. 50 of the NDPS Act Ex.PW1/A to Ex.PW1/C on each of the accused. On refusal, he took cursory search of the accused persons and searched the polythene. State Vs. Vijay & Ors. FIR No. 998/07, PS Nand Nagri Page No. 30/65
27. It is therefore evident that before effecting search of the accused persons and polythene packet, SI Rajnikant served notice U/s. 50 of the NDPS Act upon the accused persons and also informed them that if they wanted their search could be conducted in the presence of a Gazetted Officer or a Magistrate. It is not a case where the recovery was effected on a prior information and not during the course of investigation or routine checking.
28. In Gurjant Singh @ Janta vs. State of Punjab, Criminal Appeal No. 1868/2013 decided on October 28, 2013; the appellant who was driving a tractor containing contraband was apprehended by a police team present at a point in connection with nakabandi. Recovery officer checked the trolley of the tractor and he found three gunny bags lying inside the trolley, and he intended to search the gunny bags as he suspected some incriminating article in the gunny bags. Recovery officer informed the appellant that, if he so desired, the search could be conducted in the presence of a Gazetted Officer or a Magistrate. The trial court was of the view that there was no necessity to comply with Section 50 of the NDPS Act and on that basis did not go into the question of compliance of Section 50 of the NDPS Act. In appeal, High Court confirmed the conviction and sentence. State Vs. Vijay & Ors. FIR No. 998/07, PS Nand Nagri Page No. 31/65
29. The matter reached to the Supreme Court. Hon'ble Supreme Court held as under:
"16. If the ratio of the said decision had been properly understood, the flaw committed by the trial court and as confirmed by the High Court in our considered opinion would not have arisen. The distinct feature in the case on hand was that on the date of occurrence i.e. on 04.04.1996 at 00.15 am, the police party headed by PW6, accosted a tractor trolley coming from the side of Village Ugrahan, which was stopped by him and that when the driver after stopping the tractor tried to escape was apprehended by the police team. The most crucial aspect of the case was that PW6 noticed three gunny bags lying in the tractor of the appellant and felt that some incriminating substance was kept in those gunny bags. PW6, therefore, took the view that before effecting search of the gunny bags, the necessity of affording an opportunity to the appellant to conduct the search in the presence of a Gazetted Officer or a Magistrate was imperative. In other words, after noticing three gunny bags, PW6, as an investigating officer, felt the need to invoke the provisions of Section 50 and thereby provide an opportunity to the appellant for holding any search in the presence of a Gazetted Officer or a Magistrate. When once PW6 could assimilate the said legal requirement as stipulated under Section 50 of the NDPS Act, as fail to understand as to how principle No. 1 in paragraph 25 of the State Vs. Vijay & Ors. FIR No. 998/07, PS Nand Nagri Page No. 32/65 decision reported in Balbir Singh (supra) could be applied. Unfortunately, the trial court failed to understand the said principle set out in Balbir Singh (supra) in the proper perspective while holding that neither Section 42 nor Section 50 was attracted to the facts of this case.
17. On the other hand even according to the prosecution, namely, the investigating officer himself, i.e. PW6, a search was required after apprehending the appellant alongwith the tractor and the gunny bags and such search had to be necessarily conducted in accordance with Section 50 of the NDPS Act. It was further the case of the prosecution that such a step was pursued by calling upon the appellant to exercise his opinion and after affirmatively ascertaining whether he wanted any search to be conducted in the presence of the Gazetted Officer, only then PW3 was summoned, in whose presence the search operation was held. Therefore, the conclusion of the trial court in having held that Section 42 and 50 were not applicable to the case on hand was a total misunderstanding of the legal provisions in the light of the facts placed before it and consequently the conclusion arrived at for convicting the appellant was wholly unjustified."State Vs. Vijay & Ors. FIR No. 998/07, PS Nand Nagri Page No. 33/65
30. In State of Punjab vs. Balbir Singh, (1994) 3 SCC 299; Hon'ble Supreme Court held as under:
"25. The questions considered above arise frequently before the trial courts. Therefore, we find it necessary to set out our conclusions which are as follows:
(1) If a police officer without any prior information as contemplated under the provisions of the NDPS Act makes a search or arrests a person in the normal course or investigation into an offence or suspected offences as provided under the provisions of CrPC and when such search is completed at that stage Section 50 of the NDPS Act would not be attracted and the question of complying with the requirements thereunder would not arise. If during such search or arrest there is a chance recovery of any narcotic drug or psychotropic substances then the police officer, who is not empowered, should inform the empowered officer who should thereafter proceed in accordance with the provisions of the NDPS Act. If he happens to be an empowered officer also, then from that stage onwards, he should carry out the investigation in accordance with the other provisions of the NDPS Act."State Vs. Vijay & Ors. FIR No. 998/07, PS Nand Nagri Page No. 34/65
31. In Rakesh @ Shankar vs. State, 2014 [1] JCC [Narcotic] 13; police officials were checking buses at bus stand and the appellant got down from a bus and he was carrying a box on his shoulders. An informer who was present at the spot, informed a police officer that the appellant was going to supply ganja in the jhuggies and the box contained ganja. Before searching the trunk carried by the appellant a notice U/s. 50 of the NDPS Act was given to the appellant. Before Hon'ble High Court of Delhi it was contended that the said notice U/s. 50 of the NDPS Act ought to have complied with the requirements of Section 50 of the NDPS Act. In these facts and circumstances, Hon'ble Delhi High Court observed as under:
"10. The facts of this case are identical to the facts in Gurjant Singh @ Janta (supra). In Gurjant Singh @ Janta (supra) the police officers were present at the 'T' Point in connection with nakabandi, whereas in the case before this Court the police officers were present at the bus stand for the purpose of checking the buses passing from there. In Gurjant Singh @ Janta (supra), the case of the prosecution was that poppy was found in gunny bags lying in the tractor being driven by the appellant. In the case before this Court, the case of the prosecution is that he was carrying the bag containing ganja on his shoulders. In view of the binding decision of the Apex Court in Gurjant State Vs. Vijay & Ors. FIR No. 998/07, PS Nand Nagri Page No. 35/65 Singh @ Janta (supra) it must necessarily be held that since the Investigating Officer of the case before this Court chose to give a notice under Section 50 of the NDPS Act to the appellant before searching the bag being carried by him on his shoulder, the said notice should have conformed to the requirement of Section 50 of the NDPS Act and if the notice did not conform to the said requirement, the recovery of ganja from him would be per se illegal.
32. Applying the ratio of aforesaid decisions, it can be said that Section 50 of the NDPS Act is applicable to the present case.
33. It is the admitted case of the prosecution that SI Rajnikant (PW8) took cursory search of the accused persons before search of the polythene packet. SI Rajnikant (PW8) deposed that he had taken cursory search of the accused persons but nothing incriminating was found and thereafter, he opened the polythene packet and on checking, it was found to be charas. Ct. Kamal (PW9) deposed that he took cursory search of the accused persons but nothing incriminating was found and thereafter, IO opened the polythene packet and on checking, it was found containing charas. It is crystal clear that personal search of the accused persons were conducted prior to search of the polythene packet. In such facts and circumstances, Section 50 of the NDPS Act is applicable.State Vs. Vijay & Ors. FIR No. 998/07, PS Nand Nagri Page No. 36/65
34. In State of Rajasthan vs. Parmanand, 2014 (2) JCC [Narcotics] 66; Hon'ble Supreme Court has held as under:
12. Thus, if merely a bag carried by a person is searched without there being any search of his person, Section 50 of the NDPS Act will have no application. But if the bag carried by him is searched and his person is also searched, Section 50 of the NDPS Act will have application. In this case, respondent no. 1 Parmanand's bag was searched. From the bag, opium was recovered.
His personal search was also carried out. Personal search of respondent no. 2 Surajmal was also conducted. Therefore, in light of judgments of this Court mentioned in the preceding paragraphs, Section 50 of the NDPS Act will have application.
35. In Om Prakash vs. State, Crl. Appeal No. 453/2014 decided on 23.05.2014; Hon'ble High Court of Delhi observed as under:
"79. In the present case, undoubtedly, the Appellant was searched by PW10 although that search did not lead to recovery of any narcotic substance. The fact that the person of the Appellant was searched has been admitted by PW10. He was served with the notice under Section 50 of the NDPS Act. The Court is unable to agree with the submission of the learned APP, which appears to have found favour with the trial Court, that in the present case there existed no reason to issue a State Vs. Vijay & Ors. FIR No. 998/07, PS Nand Nagri Page No. 37/65 Section 50 notice since the recovery was effected from the WagonR car. The evidence makes it clear that PW10 did issue a Section 50 NDPS Act notice since he believed that apart from the WagonR car, the Appellant himself might be carrying some prohibited substance and it was not possible for him at that stage to rule out such a contingency. PW10 served a copy of the notice on the Appellant. Since the Appellant was, in fact, searched pursuant to the notice issued, it is not open now for the prosecution to contend that there was no need to issue such notice and, therefore, the failure to observe the requirement of Section 50 of the NDPS Act was not fatal to the prosecution."
36. Let us examine as to whether the accused Vijay and Bhupender were apprised about their legal right to be taken to a Gazetted Officer or a Magistrate for their search, if they required.
37. Notice Ex.PW1/A given to the accused Bhupender, if translated in English, it would read as under:
"Bhupender S/o Chander Pal R/o Gali No. 15, Brijesh Madam Wali Gali, Amit Vihar, Loni, Ghaziabad, (UP), you are informed that if you want to call any Gazetted Officer or a Magistrate for your search then he can be called. You can also take search of police party."
38. Notice U/s. 50 of the NDPS Act Ex.PW1/B is also to the same effect.
State Vs. Vijay & Ors. FIR No. 998/07, PS Nand Nagri Page No. 38/65
39. Therefore, it is clear that accused Bhupender and Vijay were informed only about the option and not about their legal right of being searched before a Gazetted Officer or a Magistrate. Such intimation is not a communication of legal right under this Section.
40. In State of Delhi vs. Ram Avtar @ Rama 2011 (3) JCC [Narcotics] 146 (Supreme Court); notice given to the respondent in that case reads as under:
"Musami Ram Avtar urf Rama s/o late Shri Mangat Ram r/o 71/144, Prem Nagar, Chhoti Subzi Mandi, Janakpuri, Delhi apko is notice ke tehat suchit kiaya jata hai ki hamare pas itla hai ki apke kabje me smack hai aur apki talashi amal mein iaye jati hai. Agar ap chahen to apki talashi ke liye kisi Gazetted Officer ya Magistrate ka prabandh kiya ja sakta hai."
The High Court, relying upon the decision of the Apex Court in State of Punjab versus Baldev Singh [(1994) 3 SCC 299], held that the aforesaid intimation did not specify the provisions of Section 50 of the NDPS Act, it was held that the intimation given to the respondent could not be treated as communicating to him that he had a right under law to be search before the aforesaid authorities and since the recovery itself as illegal, the conviction and sentence had to be set aside. Being aggrieved from the order of this Court, an appeal was preferred by the State. Rejecting the appeal, the Apex Court, inter alia held as under:
State Vs. Vijay & Ors. FIR No. 998/07, PS Nand Nagri Page No. 39/65
"The law has provided a right to the accused, and makes it obligatory upon the officer concerned to make the suspect aware of such right. The officer had prior information of the raid; thus, he was expected to be prepared for carrying out his duties of investigation in accordance with the provisions of Section 50 of the NDPS Act. While discharging the onus of Section 50 of the NDPS Act, the prosecution has to establish that information regarding the existence of such a right had been given to the suspect, if such information is incomplete and ambiguous, then it cannot be construed to satisfy the requirements of Section 50 of the NDPS Act. Noncompliance of the provisions of Section 50 of the NDPS Act would cause prejudice to the accused and, therefore, amount to the denial of a fair trial. To secure a conviction under Section 21 of the Act, the possession of the illicit article is a sine qua non. Such contraband article should be recovered in accordance with the provisions of Section 50 of the NDPS Act, otherwise, the recovery itself shall stand vitiated in law. Whether the provisions of Section 50 of the NDPS Act were complied with or not, would normally be a matter to be determined on the basis of the evidence produced by the prosecution. An illegal search cannot entitle the prosecution to raise a presumption of validity of evidence under Section 50 of the NDPS Act. As is obvious from the bare language of Ex.PW6/A, the accused was not made aware of his right, that he could be searched in the State Vs. Vijay & Ors. FIR No. 998/07, PS Nand Nagri Page No. 40/65 presence of a Gazetted Officer or a Magistrate, and that he could exercise such choice. The writing does not reflect this most essential requirement of Section 50 of the NDPS Act. Thus, we have no hesitation in holding that the judgment of the High Court does not suffer from any infirmity."
41. In Rakesh @ Shankar vs. State [Delhi] (supra); Hon'ble Delhi High Court observed as under:
6. The notice given to the appellant is Ex.PW1/A. If translated in English, it would read as under:
"You Rakesh @ Shankar son of Dev Narayan Sharma resident of village Chiranjivpur PO Fateha, District Begusarai, Bihar are informed that the police party has an information that you have ganja with you in a steel trunk or box and you, therefore, are required to be search. If you so want some Magistrate or a Gazetted Officer can be called for your search as well as of your box."
"11. It is quite clear from a perusal of the notice Ex.PW1/A that the appellant was not informed that he had a legal right to the effect that the bag being carried by him could be searched in the presence of a Magistrate or a Gazetted Officer. The appellant was only informed that if he so desired he and the bag being carried by him could be searched in the presence of a Magistrate or a Gazetted Officer. This information would not amount to conveying to the appellant that he had a legal right to be searched in State Vs. Vijay & Ors. FIR No. 998/07, PS Nand Nagri Page No. 41/65 the presence of a Magistrate or a Gazetted Officer, it is quite possible that had the appellant been informed of such a legal right being available to him he would have chosen to exercise that right instead of allowing the police officers to search him. Since the aforesaid notice Ex.PW1/A does not meet the strict requirement of Section 50 of the NDPS Act, the recovery pursuant to the said notice cannot be said to be legal."
42. Let us examine depositions of SI Rajnikant (PW8) or other members of the police team on this aspect. SI Rajnikant (PW8) was the Incharge of the recovery team. He has deposed as under:
"I told them that their search is to be conducted and if they want their search can be conducted in the presence of a Gazetted Officer or a Magistrate but they refused all my offers."
PW1 HC Om Pal was a member of the police team. He has deposed as under:
"It is correct that SI Rajnikant asked the accused persons that their search is to be taken and for this if they wanted they could take search of the police officials prior to their own search and further if they wanted they could get themselves searched in the presence of a Gazetted Officer or a Magistrate but the accused persons refused both the officers. It is correct that accused persons endorsed their refusal on the notices."State Vs. Vijay & Ors. FIR No. 998/07, PS Nand Nagri Page No. 42/65
PW9 Ct. Kamal Singh has deposed as under:
"IO told the accused persons regarding their legal rights. He told them that their search has to be conducted and if they want their search can be conducted in the presence of a Gazetted Officer or a Magistrate but they refused all the offers."
43. Therefore, it is clear that it was a mere information to the accused rather than communication of a legal right as required U/s. 50 of the NDPS Act.
44. In Ashok Kumar Sharma Vs. State of Rajasthan, Crl. A No. 817 of 2008, decided on 09.01.2013; Hon'ble Supreme Court considered deposition of Incharge, of raiding team i.e. Additional Superintendent of Police (Crimes), Jaipur City which is as under: "He was apprised while telling the reason of being searched that he could be searched before any Magistrate or any Gazetted Officer if he wished. He gave his consent in writing and said that I have faith on you, you can search me."
Hon'ble Supreme Court held as under" "8. The above statement of PW1 would clearly indicate that he had only informed the accused that he could be searched before any Magistrate or a Gazetted Officer if he so wished. The fact that the accused persons has a right under Section 50 of the NDPS Act to be searched before a Gazetted Officer or a Magistrate was not made known to him. We State Vs. Vijay & Ors. FIR No. 998/07, PS Nand Nagri Page No. 43/65 are of the view that there is an obligation on the part of the empowered officer to inform the accused or the suspect of the existence of such a right to be searched before a Gazetted Officer or a Magistrate, if so required by him. Only if the suspect does not choose to exercise the right in spite of apprising him of his right, the empowered officer could conduct the search on the body of the person."
45. To add further, it is evident from a perusal of notices U/s. 50 of the NDPS Act Ex.PW1/A to Ex.PW1/C that accused persons were not informed that they could be taken to a Gazetted Officer or a Magistrate for conducting their search. SI Rajnikant (PW8) has not recorded grounds of belief that it was not possible to take the accused persons to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance. No such report containing reasons for such belief which necessitated such search was sent within 72 hours to his immediate official superior.
46. In Om Prakash vs. State, (supra) observed as under:
"78. Section 50 of the Act mandates that the officer who is about to search a person under Section 42 of the NDPS Act "if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the department State Vs. Vijay & Ors. FIR No. 998/07, PS Nand Nagri Page No. 44/65 mentioned in Section 42 or to the nearest Magistrate". Only when it is not possible to take the person to the nearest Gazetted Officer that, in terms of Section 50 (5), the Officer can proceed to search the person as provided under Section 100 Cr.P.C. After the search, under Section 50 (6) "the officer shall record the reason for such belief which necessitated such search and within seventytwo hours send a copy thereof to his immediate official superior".
Effect of Violation of Section 50 of the NDPS Act
47. In Vijaysinh Chandubha Jadeja vs. State of Gujarat reported as (2011) 1 SCC 609; Hon'ble Supreme Court held in the para no. 22 of the judgment, as under:
"22......We have no hesitation in holding that in so far as the obligation of the authorised officer under Subsection (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires a strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search."
48. It is therefore, clear that there is noncompliance of mandatory provision of Section 50 of the NDPS Act and as such, it has rendered the recovery of charas illegal.
State Vs. Vijay & Ors. FIR No. 998/07, PS Nand Nagri Page No. 45/65
49. Once the recovery is held to be illegal, that means the accused did not actually possess the illicit article or contraband and that no such illicit article was recovered from the possession of the accused such as to sustain such conviction of a contraband article. Re: Delay in Sending Sample Parcels
50. According to Ld. defence counsel, there is inordinate and unexplained delay of 46 days in sending sample parcels for chemical examination. It is further case of the defence that SI Rajnikant (PW8) received his seal from MHC(R) on the next day which was deposited by Ct. Kamal (PW9) with him. He submitted that such unexplained delay cast suspicion over the case of the prosecution.
51. According to Ld. Addl. PP for the State, the prosecution examined link evidence in the form of MHC (M) and sample depositor and FSL report Ex.PX that the seals on sample parcel were intact and tallied with the specimen seals as per forwarding letter (FSL form).
52. In the present case, the sample was drawn on 21.11.2007 and sample parcel was sent on 08.01.2008 to FSL, Rohini for chemical examination through HC Chhotey Lal. The prosecution has not explained as to why the sample could not be sent within three days of seizure as provided by guidelines of Narcotics Control Bureau. State Vs. Vijay & Ors. FIR No. 998/07, PS Nand Nagri Page No. 46/65
53. The recovered contraband and sample remained in the police station throughout the said period and seal was handed over to SI Rajnikant (PW8) on the next day of seizure. According to Insp. Satish Kumar (PW3), he deposited the said parcels with MHC (M) after putting FIR number thereon vide DD No. 18A. The said DD has not been produced. Moreover, PW1 HC Om Pal who was a member of the raiding team has not identified the case property. In these circumstances, such unexplained delay coupled with nonproduction of DD No. 18A and availability of seal as well as contraband in the police station for such a long period in the absence of evidence regarding safe custody of the said parcels in the police malkhana would be a suspicious circumstance. Moreover, provision of Section 52A of the NDPS Act has not been complied with.
54. In Om Prakash vs. State (supra); Hon'ble Delhi High Court observed as under:
"83......Unless the details of the seized substance are noted at the earliest opportunity, there is every possibility of the samples being tampered with....."
55. In the case of Rishidev @ Onkar Singh vs. State (Delhi Administration), Crl. Appeal No. 757 of 2000 decided on 01.05.2008; Hon'ble Delhi High Court held as under:
State Vs. Vijay & Ors. FIR No. 998/07, PS Nand Nagri Page No. 47/65
"17. If the facts of the present case are examined in the light of the above law, the evidence led by the prosecution only gives the date on which the samples were deposited with the malkhana and removed therefrom. It does not explain the delay of three months in sending the samples and also what happened with the sample during those three months......
19......The record of the case should contain entry in writing about the sample being sent for testing within the time specified by the Narcotic Control Bureau. A strict compliance of this requirement has to be insisted upon. The reason is this. The sample that is kept in a police malkhana, under the seals of the police officers themselves, is still definitely under the control of those police officers. There is every possibility that the samples could be tampered and again resealed by the very same officers by again affixing their seals. It is to prevent this from happening that earlier the sample is sent for testing to the CFSL the better.
20. The delay in sending samples to the CFSL has to be properly explained by the prosecution and further, such explanation can be accepted only where the prosecution shows that it made a genuine attempt to send the sample to the CFSL forthwith and that because of the excessive workload of the CFSL, the sample was returned and was unable to be tested. The record must show that such an attempt was made and the sample was returned for reasons not of the making of the prosecution. The State Vs. Vijay & Ors. FIR No. 998/07, PS Nand Nagri Page No. 48/65 lacuna in this regard cannot be permitted to be made up by oral evidence.
22. The reliability of the test report would depend on whether in fact the sample sent for testing was the one recovered from the accused. If there is doubt as to the safe custody of the sample that is recovered from the accused, then the benefit of such doubt, must obviously ensure to the accused."
Re: Failure to Join Public Witnesses
56. According to Ld. Addl. PP for the State, recovery officer SI Rajnikant (PW8) made sincere efforts to join public persons in search and seizure proceedings but none of them agreed and therefore, no exception can be taken to the case of the prosecution for non joining of public persons in search and seizure proceedings.
57. On the contrary, Ld. defence counsel submitted that no genuine effort was made by the police to join public person in search and seizure proceedings. He submitted that accused persons were allegedly apprehended from a busy road. He submitted that non association of public witnesses despite availability would make the case of the prosecution suspicious.
58. Let us examine as to whether genuine efforts were made by SI Rajniknat (PW8) to associate public persons in search and seizure proceedings.
State Vs. Vijay & Ors. FIR No. 998/07, PS Nand Nagri Page No. 49/65
59. SI Rajnikant (PW8) was Incharge of the raiding team. He has deposed as under:
"I requested three four passersby to join the proceedings but all refused and left the spot without disclosing their names and addresses."
In his crossexamination, he deposed as under:
"The public persons were coming and going through the road of the place of occurrence. There were no residential houses near the place of occurrence. However, the same were situated across the road."
PW1 HC Om Pal was a member of the police team. In his crossexamination, he deposed as under:
"Public persons were passing through the spot. SI Rajnikant asked 45 passersby to join the raiding party but none agreed. SI Rajnikant did not note down names and addresses of the persons who refused to join the raiding party. "
PW9 Ct. Kamal was also a member of raiding party. He has deposed as under:
"IO requested 34 passersby to join the proceedings but all refused and left the spot without disclosing their names and addresses."State Vs. Vijay & Ors. FIR No. 998/07, PS Nand Nagri Page No. 50/65
In his crossexamination, PW9 Ct. Kamal deposed as under:
"Some public persons were coming and going through the spot."
60. It is therefore evident from the testimony of the police officials that SI Rajnikant (PW8) alongwith raiding team departed from police station at 9.45 p.m. The distance between the police station and place of occurrence was about 400 meters500 meters. According to secret information, the accused persons were expected to arrive at the spot at about 10.30 p.m. There were residential houses across the road. IO did not make any effort to join any resident from the area in his raiding team. He preferred stray passerby over residents of the area. Moreover, he did not record names and addresses of the passerby whom he had requested to join the raiding team. Such routine explanation that the said person refused to join the raiding team cannot be accepted. SI Rajnikant (PW8) should have recorded the names and addresses of the said persons in order to show that such effort was made by him to associate the public persons in the raiding team. Raiding team reached at the spot within 5 minutes as deposed by PW1 HC Om Pal. He had sufficient time to make serious efforts to join residents of the area in the raiding team.
State Vs. Vijay & Ors. FIR No. 998/07, PS Nand Nagri Page No. 51/65
61. In Radhey Shyam vs. State (NCT of Delhi) Criminal Appeal No. 302/2008 decided on 25.04.2011; Hon'ble Delhi High Court observed as under:
"14......Admittedly, the case of the prosecution is based upon the testimony of police officials. PW8 SI Sunil Kumar admitted in his crossexamination that secret information was received by him in his room at Narcotics Branch at Kamla Market, Delhi and there were shops in the vicinity but he did not call anybody from those shops to join the raid. He has also admitted that even near the place of recovery i.e. roundabout Mori Gate, there were shops but he did not call anybody from those shops to join the raid. He however stated that near the place of secret information as well as the place of recovery, he requested passerby to join the raid but they declined to oblige. From this, it is evident that Investigating Officer has not made sincere efforts to join the independent witness with permanent address to the raid. It is difficult to accept that a sincere and responsible Investigating Officer would prefer stray persons by over the nearby shopkeepers having permanent address, while investigating such a serious case. No doubt, the failure of the Investigating Officer to join independent witnesses, however, by itself cannot be taken as a circumstance to reject the testimony of the police officials. But, this calls for a cautious approach on the part of the Court while analysing the evidence."State Vs. Vijay & Ors. FIR No. 998/07, PS Nand Nagri Page No. 52/65
62. In Om Prakash vs. State (supra), Hon'ble Delhi High Court observed as under:
"70. As regards the absence of independent witnesses, PWs1 and 6 have contradicted PW10 and have stated that no attempt had been made to associate any independent witnesses at the spot. It is not disputed that the place of alleged apprehension of the Appellant on 9th July, 2011 was crowded. It was outside a temple at around 8.30 p.m., when aarti and pooja usually takes place. In the circumstances, the failure to even record the names of the public witnesses who allegedly refused to join the raid, creates a reasonable doubt on the truthfulness of the prosecution version, especially that of PW10. The trial Court has observed: "So it is held that public witnesses were definitely available at the spot in large numbers because recovery was effected from the bank of outer ring road but despite it not a single public witness was joined."
"71. Routinely, no attempt is being made by the police in such cases to associate public witnesses. In the absence of clear evidence to show that a sincere effort was made, the Court should not simply accept the proposition that generally in such cases no member of the public comes forward to help the prosecution. In Ajmer Singh vs. State of Haryana (2010) 3 SCC 746, it was held that in such circumstances the Court will have to State Vs. Vijay & Ors. FIR No. 998/07, PS Nand Nagri Page No. 53/65 determine whether the evidence of the police officer "was believable after taking due care and caution in evaluating their evidence". In the present case, given the shoddy investigation, the failure to associate any independent witness constituted an additional factor to disbelieve the case of the prosecution."
63. In Mohd. Irfan vs. Directorate of Revenue Intelligence, Crl. Appeal No. 783/12 decided on 8th November, 2013; Hon'ble Delhi High Court has observed as under:
"3......Apparently, the complainant's version remained uncorroborated from independent sources/witnesses. Joining of independent public witnesses is not a formality to be performed and sincere attempts were required to be made by the prosecution before apprehension of the accused to procure the public witnesses whose identity /particulars were not doubtful.
"4......The vendors/stall owners on the platform No. 8/9 were also not associated in any proceedings...... Except the bald statement of the complainant, there is no evidence worth the name to infer that the appellant - Mohd. Irfan was apprehended in the manner and at the place described by him. Adverse inference is to be drawn against the prosecution for not examining the independent public witnesses whose existence itself was in doubt."State Vs. Vijay & Ors. FIR No. 998/07, PS Nand Nagri Page No. 54/65
64. In Inder Dev Yadav vs. State of NCT, Crl. Appeal No. 545/2011 decided on 01.05.2014; Delhi High Court observed as under:
"4. The appellants' conviction is based upon the testimonies of police personnel/officials alone. No independent public witness was associated at any stage of the investigation. No reasonable or plausible explanation has been offered by SI Bhasker Sharma, Incharge of raiding team and SI Sanjay who took over the investigation subsequently for not associating any public witness despite having ample time and opportunity. The proceedings were conducted at the spot till around 12.00 (night). Nonjoining of independent witness to the recovery creates serious doubt about the genuineness of the prosecution case. It is not rule of law but of prudence that public witnesses should be joined. This is desired to lend authenticity and credibility to the search and the recovery. Of course, it is not an absolute rule. The evidence of police witnesses without slightest independent evidence requires to pursue with great care and caution."
65. In State vs. Sunil, CRL. L.P. No. 502 of 2014 decided on 19.08.2014; Hon'ble Delhi High Court observed as under:
"11...... No independent witness was associated in the recovery of 4 kg of charas form a public place. In the circumstances, the benefit of doubt was rightly granted to the Respondent."State Vs. Vijay & Ors. FIR No. 998/07, PS Nand Nagri Page No. 55/65
Re: Failure to Prove Conscious Possession
66. According to Ld. defence counsel, the prosecution failed to prove that accused Vijay and Bhupender were in conscious possession of the contraband. He submitted that no investigation has been conducted regarding ownership of motorcycle. He submitted that the recovery witnesses have not deposed as to that accused persons were aware of contraband in diggi of the motorcycle. He submitted that prosecution witnesses have not stated as to which of the accused was driving the said motorcycle and recovery was effected at the instance of which of the accused.
67. According to Ld. Addl. PP for the State, accused persons were riding on the motorcycle in the diggi of which the alleged contraband was found. He submitted that accused persons should have explained that they were not in conscious possession of the contraband.
68. In the present case, SI Rajnikant (PW8) has deposed that at about 10.15 p.m., they saw a motorcycle coming from the side of Bhopura Border. He stopped the motorcycle and found three persons on the motorcycle. He stated that secret informer identified them as the persons having contraband with them.
State Vs. Vijay & Ors. FIR No. 998/07, PS Nand Nagri Page No. 56/65
69. According to SI Rajnikant (PW8), he checked the motor cycle and found the yellow colour polythene from the diggi on the right side of the motorcycle. PW1 HC Om Pal and PW9 Ct. Kamal stated to the same effect.
70. In order to bring home the guilt, the prosecution was required to prove that the accused persons were in conscious possession of the contraband. None of the member of the recovery team has deposed as to which of the accused person was driving the said motorcycle. They have also not deposed at the instance of which of the accused contraband was recovered. They have not deposed the role of each of the accused persons in respect of contraband. There is no investigation regarding ownership of the motorcycle. In the seizure memo Ex.PW1/G, chassis number and engine number of the motor cycle are not mentioned. According to SI Rajnikant (PW8), he had not made any investigation qua ownership of the motorcycle as the investigation was transferred to second IO after registration of FIR. However, Investigating Officer ASI Rakesh Tyagi (PW5) has not deposed that he made any investigation regarding ownership of the said motorcycle. There is no evidence on record to infer that the accused persons were aware of the presence of contraband in the diggi of the motorcycle.
State Vs. Vijay & Ors. FIR No. 998/07, PS Nand Nagri Page No. 57/65
71. In Inder Dev Yadav & Ors. vs. State (NCT of Delhi), (supra); Hon'ble Delhi High Court has held as under:
"7. The offending vehicle (mini truck No. UP 78 T 2234) was recovered and seized vide seizure memo (Ex.PW1/A). Documents pertaining to the vehicle seized vide memo (Ex.PW1/B) were only photocopies and no attempt was made to recover original documents. No investigation was carried out as to who was the registered owner of the vehicle and how; when and under what circumstances, the vehicle in question came into appellants' possession and if so, in what capacity. It was also not investigated as to from where the appellants had collected the contraband and who was its supplier. The movements of the vehicle prior to its seizure were not ascertained to reach out to the real culprits king pins. As per the secret information, the contraband was to be delivered at the spot to prospective buyers. Again, the information proved incorrect as none came near the vehicle to take delivery of the contraband. Nothing was ascertained as to, to whom the appellants were to deliver the contraband and at what price.
8. A1 was found driving the vehicle in question;
A2 and A3 were found present in the truck at the time of recovery. However, no evidence was collected to ascertain as to what was the role of all the appellants in the transaction. Whenever, a person is held up for possession of any offending articles, it must be in his exclusive possession. It is State Vs. Vijay & Ors. FIR No. 998/07, PS Nand Nagri Page No. 58/65 obligatory on the part of the prosecution to establish by cogent and reliable evidence that the suspect was an exclusive and conscious possession of the contraband article. In the instant case, mere presence of A2 and A3 in the truck at the time of search will not be sufficient to hold that they had kept the contraband articles in the cabin and were aware of it. It is unclear if all the appellants were beneficiaries in the transaction in any manner." Re: Discrepancies in the Prosecution Case
72. (a) PW1 HC Om Pal who was a member of the raiding team has not identified the case property before the Court.
(b) According to SI Rajnikant (PW8), secret informer came to the police station at about 10.30 p.m., and at that time, the Duty Officer and other police officials were present. However, PW1 HC Om Pal stated that he did not know whether the secret informer visited the police station to give information to SI Rajnikant (PW8) or he conveyed the information telephonically.
(c) According to SI Rajnikant (PW8), he prepared a raiding party consisting of himself, HC Om Pal and HC Kamal and lodged DD entry No. 11A and left the police station. However, particulars of the member of the raiding team are not mentioned in DD No. 11A Ex.PW3/A. State Vs. Vijay & Ors. FIR No. 998/07, PS Nand Nagri Page No. 59/65
(d) According to PW1 HC Om Pal, DD entry was recorded in the police station by SI Rajnikant (PW8) before leaving the police station. However, no such departure entry is produced or proved on record.
(e) The case of the prosecution is that Insp. Satish Kumar (PW3) reached at the spot while patrolling at about 11.00 p.m. and SI Rajnikant (PW8) handed him over both the sealed pulandas, form FSL and carbon copy of the seizure memo and thereafter, Insp. Satish Kumar (PW3) affixed his seal 'SK' on the said parcels and form FSL and took the said articles with him and left the spot. Insp. Satish Kumar (PW3) is stated to the same effect in his testimony. It has also come in the evidence that rukka was prepared after departure of Insp. Satish Kumar and was handed over to PW1 HC Om Pal at 11.45 p.m. It has also come on record that FIR in this case was registered at 11.55 p.m. and ASI Rakesh Tyagi reached at the spot at 12.00 mid night. However, ASI Rakesh Tyagi (PW5) stated in his crossexamination that SHO, Insp. Satish Kumar was present at the spot alongwith IO SI Rajnikant (PW8), other police officials and accused persons when he reached at the spot. According to SI Rajnikant (PW8), SHO reached at the spot at 11.00 p.m. and remained there for 1520 minutes. In view of this presence of Insp. Satish Kumar (PW3) at the spot is doubtful. State Vs. Vijay & Ors. FIR No. 998/07, PS Nand Nagri Page No. 60/65
(f) According to SI Rajnikant (PW8), he received secret information at about 9.35 p.m. and thereafter, he produced the secret informer before Insp. Satish Kumar (PW3) and thereafter, he formed a raiding party on his direction. Whereas Insp. Satish Kumar (PW3) stated that he had left the police station for patrolling in the area at about 7.00 p.m. He stated that he did not remember DD number vide which he had left the police station for patrolling. He has not stated as to when he returned to the police station and at what time SI Rajnikant (PW8) produced the secret informer before him. He has also not stated that when he again left the police station for patrolling. In view of this, presence of Insp. Satish Kumar in the police station at 9.35 p.m. is itself shrouded in mystery.
(g) According to ASI Rakesh Tyagi (PW5), he reached at the spot at about 12.00 mid night and arrested the accused persons at about 1.00 a.m. He stated that he recorded the disclosure statement of the accused persons between 1.00 a.m. to 2.00 a.m. However, Insp. Satish Kumar (PW3) stated that accused persons were produced before him at 1.00 a.m. and his statement was recorded by IO. How can ASI Rakesh Tyagi can be present at two places at the same time for recording statements of different persons. This fact is sufficient to establish that no such arrest was made at 1.00 a.m. as stated. State Vs. Vijay & Ors. FIR No. 998/07, PS Nand Nagri Page No. 61/65
(h) According to ASI Rakesh Tyagi (PW5), he received copy of FIR at 11.45 p.m. and investigation of this case was marked to him by Insp. Satish Kumar (PW3). However, he stated that Insp. Satish Kumar (PW3) did not meet him in the police station and Duty Officer informed him that Insp. Satish Kumar had directed him to mark investigation of this case to him. Further, FIR of this case was registered at 11.55 p.m. It means Insp. Satish Kumar (PW3) was not present in the police station till 12.00 mid night. There is no evidence on record to so that Insp. Satish Kumar was present in the police station at about 1.00 a.m.
(i) According to ASI Rakesh Tyagi (PW5), he arrested accused persons at about 1.00 a.m. and recorded their disclosure statements between 1.00 a.m. to 2.00 a.m. and further, arrest memos Ex.PW1/D to Ex.PW1/F and personal search memos Ex.PW1/H to Ex.PW1/K were prepared by SI Rajnikant (PW8). Surprisingly, SI Rajnikant (PW8) stated in his crossexamination that his statement was recorded at the spot at about 12.25 a.m. by ASI Rakesh Tyagi (PW5) and he finally left the spot at about 12.30 a.m. In view of this, if SI Rajnikant (PW8) had already left the spot at 12.30 a.m. it was not possible that he would prepare arrest memos and personal search memos at about 1.00 a.m.2.00 a.m. at the spot.
State Vs. Vijay & Ors. FIR No. 998/07, PS Nand Nagri Page No. 62/65
(j) According to ASI Rakesh Tyagi (PW5), he arrested the accused persons at about 1.00 a.m. and recorded their disclosure statement between 1.00 a.m. to 2.00 a.m. whereas perusal of arrest memos Ex.PW1/D to Ex.PW1/F show that accused Vijay, Brijesh and Bhupender were arrested at about 5.00 a.m. It means the accused persons were not arrested at the time and place as stated in arrest memos.
(k) According to ASI Rakesh Tyagi (PW5), he returned to the police station at about 4.00 a.m. It was not possible since the accused persons were arrested at the spot at 5.00 a.m. as per arrest memos.
(l) According to ASI Soma Ram (PW2) Duty Officer, he received rukka at about 11.00 p.m. whereas rukka was sent from the spot at 11.45 p.m.
(m) There is no arrival entry of ASI Rakesh Tyagi (PW5) and SI Rajnikant (PW8).
(n) According to SI Rajnikant (PW8), he weighed the charas and it was found to be 400 grams and thereafter, he prepared one sample parcel of 100 gram of charas and remaining 300 grams charas was converted into a cloth parcel. However, he has not deposed from where he arranged weighing scale.
State Vs. Vijay & Ors. FIR No. 998/07, PS Nand Nagri Page No. 63/65
(o) The case of the prosecution is that the secret information was received at 9.35 p.m. on 21.11.2007 regarding the accused persons and further, they were apprehended at about 10.15 p.m. at Main Wazirabad Road near District Park, Nand Nagri, Delhi with contraband. However, SI Rajnikant (PW8), Incharge of the raiding team stated that secret informer came to the police station at about 10.30 p.m. and he alongwith the raiding team left the police station at about 10.35 p.m. and reached at the place of occurrence at about 10.45 p.m.
(p) According to ASI Rakesh Tyagi (PW5) and SI Rajnikant (PW8) prepared arrest memos and personal search memos whereas SI Rajnikant (PW8) denied that he had prepared personal search memos and arrest memos of the accused persons.
(q) According to the prosecution, the contraband was recovered from diggi on the right side of the motorcycle No. DL 3 TC 0129 whereas the said motorcycle Ex.P5 produced before the Court without diggi and registration plate.
(r) According to SI Rajnikant (PW8), on enquiry, accused persons disclosed their names as Vijay S/o Sh. Mallu Singh, Brijesh Singh S/o Sh. Kuber Singh and Bhupender S/o Chander Pal. State Vs. Vijay & Ors. FIR No. 998/07, PS Nand Nagri Page No. 64/65
Thereafter, he conducted search, recovered contraband after serving notices U/s. 50 of the NDPS Act and thereafter, seized the contraband vide seizure memo Ex.PW1/G. However, in the seizure memo Ex.PW1/G one Dharamveer S/o Sh. Chander Pal mentioned instead of Bhupender S/o Sh. Chander Pal. It appears that notices U/s. 50 of the NDPS Act were prepared after preparation of seizure memo Ex.PW1/G and otherwise, Dharamveer S/o Sh. Chander Pal would have been mentioned instead of Bhupender S/o Sh. Chander Pal in the notice U/s. 50 of the NDPS Act Ex.PW1/A. Conclusion
73. In view of noncompliance of mandatory requirements of provisions of Section 42 and 50 of the NDPS Act, inherent contradictions in the prosecution case and discrepancies as mentioned above, this Court is of the considered opinion that the prosecution has failed to prove its case.
74. Therefore, Vijay and Bhupender are acquitted of the offence under Section 20 (b) (ii) (B) of the NDPS Act.
Announced in the open court SANJAY SHARMA on this 30th day of July, 2014. Special Judge NDPS (NorthEast) ASJ:KKD Courts, Delhi.
State Vs. Vijay & Ors. FIR No. 998/07, PS Nand Nagri Page No. 65/65