Delhi District Court
Si Devender vs Mohd. Sabir on 7 November, 2023
IN THE COURT OF SHRI ARUL VARMA, ASJ-04 AND
SPECIAL JUDGE (NDPS) SOUTH-EAST: SAKET COURTS:
NEW DELHI
CNR No. DLSE01-005492-2016
SC No 2641/2016
FIR No. 42/2016
P.S. Crime Branch
State
Vs.
Mohd Sabir
S/o Sh. Mohd Rafiq
R/o Pooja Colony Jeewan Gate
Near Shamshan Ghat
Shani Bazar Road, Loni,
Ghaziabad UP
Dinesh Kumar Paanchal
S/o Sh. Paale Ram
R/o Village Bakhtawar
PS Murthal Distt: Sonipat
Haryana
........ Accused
Date of Institution : 17.08.2016
Date of reserving the Judgment : 07.11.2023
Date of Judgment : 07.11.2023
JUDGMENT
FACTS IN BRIEF / CASE SET UP BY THE PROSECUTION
1. The facts as alleged by the prosecution, are hereby succinctly recapitulated. It was alleged that on 02.04.2016, at about 01:50 PM on the pavement in front of Free Public Convenience at Sarai Kale Khan, Inter-State Bus Stop, Ring Road, both accused namely Mohd FIR No 42/2016 State Vs. Mohd Sabir & Anr Page No. 1/47 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.11.07 18:47:31 -0200 Sabir and Dinesh Kumar Paanchal were found carrying bags containing Ganja total weighing 49.05 Kg and 47.5 Kg respectively Thereafter, the both the accused persons were arrested, and investigation was conducted, whereafter, the present chargesheet came to be filed.
CHARGES FRAMED QUA THE ACCUSED
2. Charges under section 20/29 of NDPS Act, were framed qua the accused persons to which they pleaded not guilty and claimed trial.
EVIDENCE LED BY PROSECUTION
3. In the trial, the prosecution in support of its case, examined 13 witnesses, the succinct testimonies whereof are as follows:
4. PW-1 ASI Virender Kumar deposed that on 02.04.2016, he was posted as HC in Crime Branch, Central Range, Delhi. On that day, he was present in the office and at around 01:00 PM, SI Devender called him, HC Shushil, Ct. Sudhir and Pradeep in his room and shared the secret information in the presence of secret informer that Shabir and Dinesh will bring 'ganja' from Orissa to Delhi and will deliver the same in Ghaziabad, to Ajmeri @ Chuhiya. The information was reduced into writing vide DD No.8 (Ex.PW1/A). The DD regarding 'ravangi' was recorded at 01:10 PM which was proved as Ex.PW1/B. All of them left the office into two private cars carrying IO kit, arms and ammunitions. He was sitting with IO and FIR No 42/2016 State Vs. Mohd Sabir & Anr Page No. 2/47 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.11.07 18:47:39 -0200 the secret informer in one car, which was driven by IO/SI Devender. Rest of the staff were in another car. They had reached at the spot at bus stop Sarai Kalen Khan ISBT, New Delhi at around 01:40 PM. Both the accused persons were pointed out by the secret informer while they were taking U Turn to reach at the spot and they were carrying 'kattas'. The secret informer then left the spot. He alongwith SI Devender had apprehended one of them whose name was later on disclosed at Dinesh. Another person was apprehended by HC Shushil and his name was disclosed as Shabir. Both the accused persons were informed about the information with them and they were also informed about their legal rights. They were also informed that they can be produced from the gazetted officer or the Magistrate for their search and they can also conduct the search of members of raiding party before conducting their search. They refused to be searched in the presence of Gazetted officer of Magistrate. Notice u/s 50 of NDPS Act served upon them individually, which were proved as Ex.PW1/A and ex.PW1/B and bore his signature at point-A. Accused Dinesh had given his reply in his own handwriting on the said notice which was proved as exhibited as Ex.PW1/C, bearing his signature at point-A. The reply of accused Shabir was recorded by the IO on the dictation of the accused which was proved as Ex.PW1/D, bearing his signature at point-A. At first katta carried by accused Dinesh was FIR No 42/2016 State Vs. Mohd Sabir & Anr Page No. 3/47 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.11.07 18:47:48 -0200 checked and it found containing wet grass like substance and was identified as 'ganja' by its smell and physical appearance. On measuring it found to 49 kg & 500 gm. IO took out two samples of 250 grams each and were kept in separate pullandas and marked as A1 and A2. The remnants were also sealed in the said katta by covering it with by white clothe. All the three pullandas were sealed with seal of 'DK' and FSL form was filled and the case property was seized vide seizure memo Ex.PW1E, bearing his signature at point- A. Similarly, the katta carried by accused Shabhir was checked and it found containing wet grass like substance and was identified as 'ganja' by its smell and physical appearance. On measuring it found to 47 kg & 500 gm. IO took out two samples of 250 grams each and were kept in separate pullandas and marked as B1 and B2. The remnants were also sealed in the said katta by covering it with by white clothe. All the three pullandas were sealed with seal of 'DK' and FSL form was filled and the case property was seized vide seizure memo exhibited as Ex.PW1/F, bearing his signature at point- A. Seal after use was handed over to him. IO prepared the 'tehrir' and handed over the same to HC Shushil alongwith sealed pullandas, FSL Forms and carbon copy of seizure memos for registration of the FIR and the case property to be produced before the SHO. SI Devender had also requested three public persons to join the FIR No 42/2016 State Vs. Mohd Sabir & Anr Page No. 4/47 Digitally signed by ARUL ARUL Date:
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investigation and also before the raid near Pragati Maidan and Rajghat Bus Stand on their way, but none of them had agreed to join the raiding party or the investigation. HC Shushil had left the spot with Ct. Pradeep in a private car alongwith the case property and other documents, whereas they alongwith accused persons had gone to their office at PS Old Kotwali Daryagunj Delhi in another private car. SI Sumit Kumar to whom the investigation was entrusted had also reached in the office and the accused persons were handed over to him. HC Shushil came back in their office around 09:40 PM alongwith original rukka and copy of FIR. His statement was recorded from 09:45 PM to 11:30 PM. Thereafter, both the accused persons were arrested by SI Sumit and their personal search was conducted vide memos exhibited as Ex.PW1/ G to Ex.PW1/J, bore his signatures at point-A. IO also recorded their disclosure statement exhibited as Ex.PW1/K and Ex.PW1/L, bore his signatures at point- A. His supplementary statement was recorded from 04:30 PM to 05:30 PM by the IO.
5. PW-2 HC Sushil Kumar deposed that on 02.04.2016, he was posted as HC in Central Range, Crime Branch. On that day, at about 1 pm while he was present in his office, SI Devender had called him, HC Virender, Ct. Sudhir and Ct. Pradeep to his office and informed that he had received a secret information that persons namely Shabir and FIR No 42/2016 State Vs. Mohd Sabir & Anr Page No. 5/47 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.11.07 18:48:10 -0200 Dinesh brings ganja from Orissa for Ajmeri @ Chuhiya resident of Loni and supplies the same to her and that today also Shabir and Dinesh would bring ganja to near Sarai Kalen Khan bus stand and would go to Loni through some vehicle to supply the same to Ajmeri @ Chuhiya and that they would reach at Sarai Kalen Khan Bus Stand in between 01:30 pm to 02:30 pm and if raided they could be apprehended. Thereafter, on the directions of Inspector Kuldeep Singh a raiding party comprising of SI Devender Kumar, he , HC Virender, Ct. Sudhir and Ct. Pardeep was organized. IO had taken alongwith him IO kit bag, weighing machine and arms and ammunition as per register and they left their office in two private cars namely Grand i10 and Swift. Grand i10 of white colour was being driven by SI Devender and Swift Car which was also of white colour was driven by Ct. Pradeep and they all left for the spot via red light of Shanti Van Rajgaht Ring Road, ITO Flyover, Pragati Maidan, Red light Ring Road and took U Turn from under Sarai Kalen Khan flyover and they reached at the spot at about 1:40 pm near free public connivance in front of footpath near Sarai Kalen Khan bus stand ring road Delhi. On their way to the spot, at the red light of Rajghat Ring Road IO had requested four passersby to join the raiding party after informing them about the information and he had also requested after crossing Pragati Maidan Red Light, 3 - 4 auto drivers and some FIR No 42/2016 State Vs. Mohd Sabir & Anr Page No. 6/47 Digitally signed by ARUL ARUL Date:
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passengers of TSR to join the raiding party after informing them about the secret information but they all refused to join the raiding party showing their inability for their personal reasons and they left without disclosing names and addresses. No written notice could be served upon the above public persons who refused to join the raiding party due to paucity of the time. Secret informer was alongwith SI Devender in his car.
6. PW-3 SI Ram Prasad deposed that on 2.4.2016, he was working as ASI and was on duty at PS, Crime Branch, Pushp Vihar, New Delhi as DO from 8 am to 8am of 3.4.16. At around 7.15 pm, Hc Sushil Kumar produced one rukka to him for registration of the FIR. On the basis of said rukka, he got registered FIR of this case through Computer Operator, copy of which was proved as Ex. PW3/A bearing his signatures at point-A. He further deposed that he had brought the original FIR register which was seen and returned. His endorsement on rukka was proved as Ex.PW3/B and certificate u/s 65-B of the Indian Evidence Act was proved as Ex.PW3/C. Both bearing his signatures at point-A. After registration of FIR, he handed over the original rukka and copy of FIR to said HC. He further deposed that he had not recorded No. 12 and 14 both dated 8.3.2016.
7. PW-4 HC Rajendran Pillai deposed that on 14.07.2016 he was FIR No 42/2016 State Vs. Mohd Sabir & Anr Page No. 7/47 Digitally signed by ARUL ARUL Date:
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posted as Constable Photo Section Crime Branch in Saket Court, New Delhi. On that day he received a phone call from Photo Section Crime Branch to attend a call made by official of Narcotics Cell. On this he reached at the back side of the court where he met with IO of the case and Ld. MM. There on the directions of Ld. MM he took 27 photographs from digital camera for the proceedings of disposal of the case property in this case. The said photographs are lying the case file and proved as Ex. PW4/A (1 to 27), a DVD in this regard was also prepared by him, the same is also lying in the court file and proved as Ex.PW4/B. He had prepared two sets of both. One was given by him to the IO the other was given to the Ld.MM.
8. PW-5 ASI Shripal Singh deposed that on 2.4.2016 he was posted as HC and deputed as Reader to ACP(CR) Crime Branch. On that day at about 1pm Insp. Kuldeep handed over him DD No. 8 dated 2.4.2016, CR Crime Branch, lodged by SI Davinder Kumar which was proved as Ex. PW1/A. He submitted the same before Sh. N K Meena, the then ACP, who perused it and put his signature. He had brought the original DD bearing the signature of the ACP and same was proved as Ex. PW5/A. It bears the signature of ACP at point A. He put the diary number on the said DD i.e. 789 dated 2.4.2016. On 3.4.2016 at about 10am Insp. Kuldeep reached our office and handed over two reports u/s 57 NPDS Act regarding seizure of 97KG ganja FIR No 42/2016 State Vs. Mohd Sabir & Anr Page No. 8/47 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.11.07 18:48:37 -0200 and arrest of the accused persons. He produced both these reports before the ACP who perused them and put his signature. He had brought the above original reports bearing the signature of the ACP and same was proved as Ex. PW5/B and C. It bears the signature of ACP at point A. He put the diary number on the said reports i.e. 790 and 791 dated 3.4.2016. He work with ACP N K Meena in the office of the crime branch and had seen him writing and signing during the usual course of duties therefore he identified his signatures on the above documents. He had also brought the original diary register containing the relevant diaries stated above. Photocopy of the same was proved as Ex. PW5/D.
9. PW-6 ASI Jag Narain deposed that on 2.4.2016 he was posted as MHC/M, PS, Crime Branch, Malviya Nagar, New Delhi. On that day the then SHO, PS, Crime Branch, Insp. R. Srinivasan called him in his office with register no. 19 and Handed over him six sealed pullandas having mark A1 A2, A, B1, B2, B all duly sealed with seal of DK and RSS, alongwith two carbon copies of seizure memo, two FSL form bearing the above seals. He deposited the case property in the malkhana. He made necessary entry in this regard in register vide entry no. 2292 dated 2.4.2016. Copy of the same was proved as Ex. PW6/A. Thereafter SHO put his signatures on the register in the relevant entry and got recorded DD in the roznamcha. In the night of FIR No 42/2016 State Vs. Mohd Sabir & Anr Page No. 9/47 ARUL Digitally signed by ARUL VARMA VARMA Date: 2023.11.07 18:48:46 -0200 2.4.2016 SI Sumit Kumar came to him and deposited with him personal search articles of accused Dinesh Kumar and Shabir, which were recorded vide entry No. 2293 dated 2.4.2016. The photocopy of the same was proved as Ex. PW6/B. On 5.4.2016 he handed over pullanda mark A1 and B1 alongwith form FSL to Ct. Brijesh Kumar, vide RC No. 96/21/16 dated 5.4.2016 and copy of the entry in this regard was proved as Ex. PW6/C. The said constable later on returned with the receipt of pullandas and carbon copy of RC. The acknowledgement of case receipt was proved as Ex. PW6/D. On 2.6.2016 HC Sushil handed over him two parcels sealed with seal of FSL Delhi alongwith result of FSL. He deposited the pullandas in malkhana and made necessary entries in this regard. The FSL report was handed over to the IO later on. On 14.7.2016 he sent the case property before the court in compliance of section 52A NDPS Act which were sealed with court seal and after receiving, he deposited the same in the malkhana.
10.PW-7 Sh. Nand Kishore Meena deposed that on 2.4.2016 he was posted as ACP/Crime/Central Range at New Kotwali, Daryaganj. On that day his Reader alongwith Insp. Kuldeep Singh reached in his office and put up before him DD No. 8 dated 2.4.2016 CR/Crime regarding secret information of ganja. The said DD was proved as Ex. PW5/A which was seen by him, which bore his endorsement and FIR No 42/2016 State Vs. Mohd Sabir & Anr Page No. 10/47 Digitally signed by ARUL ARUL VARMA VARMA Date:
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signature at point A. On 3.4.2016 when he was present in his office, his reader put up before him 2 reports u/s 57 NDPS Act in the present case which were proved as Ex. PW5/B and C which he perused and put his endorsement and signature at points A respectively.
11.PW-8 Sh. Santosh Tripathy, SSO deposed that he was MSc.
Chemistry and working as Senior Scientific Officer in FSL Rohini since June, 2010. During his working as Senior Scientific Officer, he had examined more than 7000 exhibits in general and around 1000 cases under NDPS Act and had deposed in various courts of law as an expert witness in said respect. In this case, as per record on 5.4.2016 two sealed cloth parcels alongwith the forwarding letter all having one seal of DK and one seal of RSS were received in their office through Ct. Brijesh Kumar. The seals on the parcels were intact and tallied with the seal on forwarding authority specimen seal. Both the parcels were marked to him for examination. Parcels were marked as A-1 & B-1 by the forwarding authority. On opening parcel Ex. A-1 was found containing greenish brown coloured fruiting and flowering vegetative tops having characteristics cannabinoid odour weighing with polythene approx. 244.2 gram. material, kept in a polythene tied with rubber band. On opening parcel B1, was found containing greenish brown coloured fruiting FIR No 42/2016 State Vs. Mohd Sabir & Anr Page No. 11/47 Digitally signed by ARUL ARUL VARMA VARMA Date:
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and flowering vegetative having characteristics cannabinoid odour weighing with polythene approx. 246.8 gram. material, kept in a polythene tied with rubber band. He conducted the examination on the above exhibits from 9,5,2016 to 27.5.2016. On physical, microscopic, chemical, TLC, examinations Exhibits A-1 & B-1 were found to be ganja (cannabis). After the examination, the remnants of the exhibits have been sealed with the seal of 'S.Ty. FSL DELHI impression of which was provided by him on his detailed FSL Report which was proved as Ex.PW8/A, bearing his signatures at point-A on each page.
12.PW-9 H.Ct. Brijesh Kumar Tiwari deposed that on 5.4.2016 he was posted as Ct. in the above mentioned office of crime branch/CR.
On that day on the direction of Insp. Kuldeep Singh he went to PS, Crime Branch, Malviya Nagar and collected two pullandas mark A1 and B1 both duly sealed with seal of DK and RSS with form FSL and other documents from the MHC/M HC Jag Narayan. The FSL form was having same seal impression of above stated seals. He took the above exhibits to FSL Rohini vide RC no. 96/21/16 dated 5.4.16 and deposited the same there and obtained acknowledgment slip and copy of RC and came back to PS and handed over the same to MHC/M HC Jag Narain. So long as the case property remained in his custody the same were not tampered with in any manner. Later FIR No 42/2016 State Vs. Mohd Sabir & Anr Page No. 12/47 Digitally signed by ARUL ARUL Date:
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on IO recorded his statement to this effect. The copy of RC was proved as Ex. PW6/C which bore his signature at point A.
13.PW-10 Insp. Kuldeep Singh deposed that on 02.04.2016 he was posted as Insp. at Central Range, Crime Branch at Old Kotwali Building , Darya Ganj. On that day, at about 12.30 p.m. SI Devender alongwith informer came to his office and gave information that two persons namely Sabir resident of Loni and Dinesh resident of Murthal who were indulging in supply of Ganja for one Ajmeri @ Chuhia would be going to Loni from Sarai Kale Khan alongwith Ganja in some conveyance between 1.30 p.m. to 2.30 p.m. and if raided they could be apprehended. He made inquiry from the informer and after his satisfaction he conveyed the said information to Sh. N.K.Meena, ACP Crime Branch in his office personally. The ACP ordered him to conduct immediate raid and to proceed as per law. He conveyed the said authorization to SI Devender Singh, who lodged DD No. 8 in this regard at about 12.45pm and produced the copy thereof before him which was proved as Ex. PW1/A, which he forwarded to ACP Crime Branch and same bore his signature at point A. As per his orders, SI Devender Singh organized a raiding party consisting of himself, HC Sushil, HC Vijender, Ct. Sudhir and Ct. Pradeep. The raiding party alongwith informer left the office of Central Range Crime Branch for the spot in two pvt. Vehicles . After FIR No 42/2016 State Vs. Mohd Sabir & Anr Page No. 13/47 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.11.07 18:49:19 -0200 registration of case, the investigation was entrusted to SI Sumit Kumar who at about 1.10 a.m. Dt. 03.04.2016 produced both the two accused persons before him in his office. He made inquiry from both the accused persons and found recovery and arrest of the accused persons correct. On 03.04.2016 SI Devender Singh has produced a report U/S 57 NDPS Act Ex.PW5/D-1 regarding seizure of Ganja from both the accused which he forwarded to the ACP Crime Branch with his endorsement at point-A. On 03.04.2016 SI Sumit has produced a report U/S 57 NDPS Act Ex.PW5/D-2 regarding arrest both the accused which he forwarded to the ACP Crime Branch with his endorsement at point-A. IO recorded his statement to the above said effect. On 05.04.2016 the exhibits of the present case were sent to FSL through Ct. Brijesh Tiwari on his instructions.
14.PW-11 Inspector R Sriniwasan deposed that on 02.04.2016, he was posted as SHO at PS Crime Branch, Malviya Nagar. On that day at about 07:20 PM, HC Sushil Kumar brought six sealed parcels Mark A-1, A-2, A, B-1, B-2, B with two FSL forms and two carbon copy of seizure memos, sent by SI Devender Kumar from the place of recovery. The parcels were sealed with the seal of 'DK'. HC Sushil handed over the said parcels and handed over to him. He affixed his counter seal 'RSS' on all the parcels and FSL forms. He obtained the FIR No. 42/2016 from Duty Officer and put the same on the parcels FIR No 42/2016 State Vs. Mohd Sabir & Anr Page No. 14/47 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.11.07 18:49:26 -0200 and the documents and put his signature on the same. Thereafter, he called MHC(M) HC Jag Narayan with Register No. 19 and he handed over the entire case property with documents to the MHC(M), who made an entry in the Register No. 19 in this regard. He put his signature in the relevant column of the Register No. 19. The copy of the said entry No. 2292 was proved as Ex. PW 6/A, which bears his signature at Point A. Thereafter, he recorded DD No. 9 at about 08:10 PM in this regard. The attested true copy of the same was proved as Ex. PW 11/A. IO had recorded his statement in this regard on 03.04.2016.
15.PW-12 Inspector Sumit Kumar deposed that on 02.04.2016, he was posted as SI in the Central Range Crime Branch, Kotwali Dariyaganj. On that day at about 06:30 PM, on the direction of Insp.
Kuldeep Singh, SI Devender alongwith HC Virender and Ct. Sudhir produced two accused persons namely Sabir and Dinesh in his office and at about 09:40 PM HC Sushil alongwith driver/Ct. Pradeep produced him original tehrir and FIR copy and the other documents in his office. Thereafter, on the direction of senior officer, the investigation of this case was assigned to him. During investigation from 09:45 PM to 11:30 PM, he recorded the statement of HC Virender u/s 161 Cr.P.C. in his office. Thereafter, he interrogated the accused persons and on the basis of recorded statement and the FIR No 42/2016 State Vs. Mohd Sabir & Anr Page No. 15/47 Digitally signed by ARUL ARUL Date:
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recovery of the substance 'ganja', He arrested both accused persons namely Sabir and Dinesh Kumar at 12:00 AM and at 12:45 PM respectively on 03.04.2016. The arrest memo of accused Dinesh Kumar was proved as Ex. PW1/G and the arrest memo of accused Sabir was proved as Ex. PW1/H, both bore his signature at point X. He conducted the personal search of accused Dinesh Kumar and recovered one notice u/s 50 NDPS Act and one purse containing Rs. 1300/- with some visiting cards. The personal search memo was prepared which was proved as Ex. PW1/I, which bore his signature at point X. He conducted the personal search of accused Sabir and recovered one notice u/s 50 NDPS Act and cash of Rs. 4,000/-. The personal search memo was prepared which was proved as Ex. PW1/J, which bore his signature at point X. He interrogated both the accused persons and recorded their disclosure statement vide Ex. PW1/K of accused Sabir and Ex. PW1/L of accused Dinesh, which bore his signature at point X. He also prepared the report u/s 57 NDPS Act regarding the arrest of both the accused persons and produced both the accused before Insp. Kuldeep Singh with the report u/s 57 NDPS Act and he forwarded the same to ACP. His said report was proved as Ex. PW5/C, which bore his signature at point X. After that, he recorded the statement of Insp. Kuldeep Singh from 01:15 to 01:30 AM. He alongwith SI Devender were departed for FIR No 42/2016 State Vs. Mohd Sabir & Anr Page No. 16/47 Digitally signed ARUL by ARUL VARMA VARMA Date:
2023.11.07 18:49:42 -0200 the place of recovery. He recorded DD No. 2 regarding his said departure and the proceedings conducted by him at that time. The said DD was proved as Ex. PW12/A. At the instance of SI Devender, he prepared the site-plan of the spot which was proved as Ex. PW12/B, which bore his signature at point X. Then they returned to their office and then he recorded DD No. 3 regarding his arrival in the office after preparation of the site-plan. The said DD was proved as Ex. PW12/C. He recorded the statement of SI Devender from 02:30 AM to 03:00 AM. He also recorded the statement of other witnesses namely HC Sushil from 03:00 AM to 04:30 AM and HC Virender from 04:30 AM to 05:00 AM. Thereafter, the medical examination of both the accused persons was conducted from a government hospital. Thereafter, he produced both the accused persons before the Duty MM and both the accused persons were remanded to Judicial Custody. After that, he alongwith staff reached at PS Crime Branch, Malviya Nagar and further recorded the statement of SHO/Insp. Sriniwasan, PS Crime Branch and further he produced the personal search property with relevant documents before HC Jag Narain, MHC(M) PS Crime Branch and further he recorded the statement of MHC(M)/HC Jag Narain. Therafer, he alongwith his staff came back the office of Central Range, Kotwali Dariyaganj, Delhi. On 05.02.2016, HC Brijesh deposited the samples FIR No 42/2016 State Vs. Mohd Sabir & Anr Page No. 17/47 Digitally signed by ARUL ARUL Date:
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A-1 and B-1 in FSL, Rohini, Delhi. Thereafter, he recorded the statement of HC Brijesh and HC Jai Narain regarding the depositing of the said items in FSL. During investigation, the sampling of the recovered contraband was got conducted through Ld. Magistrate. he prepared the inventory of the case property which was proved as Ex. PW12/D, which bore his signature at point X and put it before the Ld. Magistrate, who verified and found it correct. Ld. Magistrate conducted the proceeding of sampling u/s 52-A of NDPS Act and he took out the two samples from each katta i.e. total four samples from the recovered 'ganja'. The samples were taken from the katta Mark A, were given Mark S-2 and S-3 and the samples drew from the katta Mark B, were given numbers T-2 and T-3. The contraband remained in Mark A was kept and sealed in another katta given Mark S-1 and the remaining substance of katta Mark B was also kept in fresh katta Mark T-1. The Magistrate sealed all the parcels with the seal 'DS' vide true copy of proceeding was proved as Ex. PW12/E. 27 photographs of the case property and samples taken at the time of proceedings, conducted by the Ld. Magistrate, are available on record and the same were proved as Ex. PW4/A. After completion of the investigation the charge sheet was filed.
16. PW-13 Inspector Davinder deposed that on 02.04.2016, he was posted as Sub-Inspector at Crime Branch, Central Range, Kotwali FIR No 42/2016 State Vs. Mohd Sabir & Anr Page No. 18/47 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.11.07 18:49:59 -0200 Dariyaganj. On that day he was present in the office at Kotwali Dariyaganj, then a secret informer came and informed that two boys namely Sabir and Dinesh, who used to bring 'ganja' from Odissa and supply the same to one Ajmeri @ Chuhiya, r/o Loni, Ghaziabad. He further informed that on that day also the said two boys would reach at Loni, Ghaziabad, U.P. between 01:30 PM to 02:30 PM to supply the 'ganja' by some vehicle from Sarai kale Khan and they could be apprehended, if raid conducted. At about 12:30 PM, he produced the informer before Insp. Kuldeep Singh, the in-charge, who made inquiry from the secret informer and after having satisfied and then he conveyed the information to Sh. N. K. Meena, the ACP, personally by going to his office. The ACP directed to conduct raid in accordance with the information. He then at about 12:45 PM recorded DD No. 8 vide, Ex. PW5/A bore his signature at point B, in respect of the secret information in compliance of Section 42 of NDPS Act. He constituted a raiding party consisting of PW-13, HC Virernder, Ct. Sudhir, HC Sushil and Ct. Pradeep. He briefed the raiding party members about the secret information. He further deposed that they then proceeded from the office in two private vehicles alongwith the secret informer. He made DD No. 9 vide Ex. PW1/B regarding their departure from the office. He reached the spot via Rajghat traffic light. he stopped their vehicle and asked 4-5 FIR No 42/2016 State Vs. Mohd Sabir & Anr Page No. 19/47 Digitally signed by ARUL ARUL Date:
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passersby to join the raiding party, but none could prepared and went away after disclosing their reasonable excuses. They reached at the spot at about 01:40 PM i.e. in front of public toilet near Sarai Kale Khan bus stand that is the road leads towards ITO side. At that spot, he again asked 4-5 passersby to join the raiding party, but none could prepared and went away after disclosing their reasonable excuses. They took position about 150-200 mtr ahead of bus stop of Sarai Kale Khan on the road which leads towards ITO. He further deposed that he asked some auto drivers to join the raiding party, but they did not join them. He further deposed that from the office, he brought the required items in accordance with the information for the purpose of investigation. He got parked the vehicles along side of the road. At about 01:50 PM, two persons were seen coming from Sarai Kale Khan and were holding plastic kattas on their shoulders. The secret informer pointed out the said two boys as Mohd. Sabir and Dinesh about he gave the information to him. Then, the secret informer left the spot. Thereafter, he alongwith the help of party members apprehended the said two boys with plastic kattas. On inquiry, their names were revealed as Mohd. Sabir and Dinesh. He apprised both the accused persons that he had information that they were going to supply 'ganja' and they were carrying contraband i.e. 'ganja'. He apprised the accused persons about their legal rights that their search FIR No 42/2016 State Vs. Mohd Sabir & Anr Page No. 20/47 Digitally signed by ARUL ARUL Date:
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was to be conducted and the said search could be conducted in the presence of Gazetted Officer or Magistrate by calling them at the spot, if they so desire. He gave written notices in this regard u/s 50 NDPS Act to both the accused separately. The carbon copy of the said notice in the name of Dinesh Ex. PW1/A and in the name of Sabir Ex. PW1/B. Both bore his signature at point X. Accused Dinesh had refused to avail his legal right and he gave his written reply below the carbon copy of the above notice. The reply of accused Dinesh was proved as Ex. PW1/C and it bore his signature at point X. Accused Sabir had also refused to avail his legal right. Since he had shown his inability to write down his reply, so he had written his reply on his behalf. The reply of accused Sabir was proved as Ex. PW1/D and it bore his signature at point X and his signature at point Y. He also offered the search of raiding party members and their vehicle to both the accused persons, but they refused to take our search. During the said proceedings, he again asked 4-5 passersby to join the raiding party, but none could prepared and went away after disclosing their reasonable excuses. Due to the paucity of time, he could not serve written notice upon those persons, who refused to join the raiding team. First, he took over the katta from accused Dinesh. The mouth of the said plastic katta was tied with a cloth cord. He opened the mouth of katta and it FIR No 42/2016 State Vs. Mohd Sabir & Anr Page No. 21/47 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.11.07 18:50:23 -0200 was found containing 'ganja' which he had identified by its smell and appearance. He weighed the said 'ganja' with katta at one go and it was found 49.500 kg. He drew two samples of 'ganja' of 250 grams each from the said katta. He kept both the samples in two separate transparent polythene and then converted them into cloth parcels. Both the samples were given Mark A-1 and A-2. The remaining 'ganja' left in the said katta and it was tied with the above cloth cord. Mark A was given to the katta. All three parcels were sealed with the seal of 'DK'. He filled in the FSL form and affixed the same seal on it. He handed over the seal to HC Virender after use. He then seized the said parcels and the FSL form through the seizure memo Ex. PW1/E, which bore his signature at point X and the signature of accused at point Y. Thereafter, he took over the katta from accused Sabir. The mouth of the said plastic katta was tied with a cloth cord. He opened the mouth of katta and it was found containing 'ganja' which he had identified by its smell and appearance. He weighed the said 'ganja' with katta at one go and it was found 47.500 kg. He drew two samples of 'ganja' of 250 grams each from the said katta. He kept both the samples in two separate transparent polythene and then converted them into cloth parcels. Both the samples were given Mark B-1 and B-2. The remaining 'ganja' left in the said katta and it was tied with the above cloth cord. Mark B was given to the katta. FIR No 42/2016 State Vs. Mohd Sabir & Anr Page No. 22/47 Digitally signed by ARUL
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2023.11.07 18:50:31 -0200 He took over his seal from HC Virender and then sealed all the three parcels with the said seal of 'DK'. He filled in the FSL form and affixed the same seal on it. He then handed over the seal to HC Virender after use. He further deposed that he then seized the said parcels and the FSL form through the seizure memo Ex. PW1/F, which bore his signature at point X and the signature of accused at point Y. Thereafter, he prepared a rukka which was proved as Ex. PW13/A, bearing his signature at point X. He handed over the rukka to HC Sushil alongwith six sealed parcels, FSL forms and carbon copies of seizure memos. He directed HC Sushil to hand over the rukka to duty officer and the remaining items were to be given to the SHO, PS Crime Branch. Accordingly, HC Sushil took the said items by a car which was being driven by Ct. Pradeep. He sent the said rukka at about 06:00 PM. Thereafter, he brought both the accused persons to his office at Kotwali Dariyaganj. On the direction of the Inspector, In-charge, the investigation after the registration of the FIR was assigned to SI Sumit. He handed over both the accused persons alongwith the documents prepared by him to SI Sumit and apprised him about the proceedings conducted by him in respect of the seizure of 'ganja' from the accused persons. HC Sushil also brought the copy of FIR to the office and he handed over the same to SI Sumit. SI Sumit made inquiry and recorded the statement of HC FIR No 42/2016 State Vs. Mohd Sabir & Anr Page No. 23/47 Digitally signed by ARUL ARUL VARMA VARMA Date:
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Virender. The IO had arrested both the accused persons vide their arrest memos Ex. PW1/G of accused Dinesh and Ex. PW1/H of accused Sabir. The IO also conducted the personal search of both the accused persons. In the personal search of accused Dinesh, the IO recovered one original notice u/s 50 NDPS Act and one purse containing Rs. 1300/-. He prepared his personal search memo which was proved as Ex. PW1/I bearing his signature at point Y. In the personal search of accused Sabir, the IO recovered one original notice u/s 50 NDPS Act and one black colour purse containing Rs. 4,000/- and some visiting cards. He prepared his personal search memo which was proved as Ex. PW1/J bearing his signature at point Y. The IO interrogated the accused persons and recorded their disclosure statement vide Ex. PW1/K of accused Sabir and Ex. PW1/L of accused Dinesh. Both bore his signatures at point Y. The original notices recovered in the personal search of accused persons were proved as Ex. P-5 of accused Dinesh and Ex. P-7 of accused Sabir, both bore his signatures at points B. Thereafter, the IO took him to the spot and there he pointed out the place of recovery. On the basis of his pointing, the IO prepared site-plan of the place of recovery which was proved as Ex. PW12/B, bearing his signature at point Y. He further deposed that when he brought the accused persons from the spot, he then recorded DD No. 12 dated FIR No 42/2016 State Vs. Mohd Sabir & Anr Page No. 24/47 Digitally signed by ARUL ARUL VARMA VARMA Date:
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02.04.2016 in respect of his arrival in the office. The attested copy of the said DD was proved as Ex. PW13/B. IO recorded his statement in this case. He had prepared a report u/s 57 NDPS Act regarding the seizure of 'ganja' from both the accused persons and sent it to the ACP through the Inspector, In-charge. The report was already proved as Ex. PW5/B, bearing his signature at point B.
17.The relevancy of the witnesses examined are succinctly delineated in the following tabular form:
PW NAME RELEVANCE
1 ASI Virender Kumar He was part of raiding team, who
apprehended the accused persons
and effected recoveries from
them. He also received the seal
given by the IO after use.
2 HC Sushil He was part of raiding team, who
apprehended the accused persons
and effected recoveries from
them. He also took the rukka and
got registered the FIR and further
he had handed over the case
property to the SHO for
conducting the proceedings u/s
55 of NDPS Act.
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3 SI Ram Prasad He was the duty officer who
recorded the FIR vide Ex.
PW3/A.
4 HC Rajender Pillai He clicked the photographs of the
samples during the proceedings
conducted u/s 52 of NDPS Act.
5 ASI Shripal He was the Reader to ACP who
proved the receiving of DD No 8
Ex. PW5/A in compliance of
Section 42 NDPS Act and report
u/s 57 fo NDPS Act vide Ex.
PW5/B and relevant page of dak
register.
6 ASI Jag Narayan He was the MHC(M) and proved
the entry made in register no 19
regarding the deposition of case
property in the Malkhana. He
also proved the road certificate
thorough the sample was sent to
FSL and the relevant entries
thereof
7 ACP Sh. Nand Kishore He was the ACP. He proved the
Meena information vide DD No 8 vide
Ex. PW5/A recorded in
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compliance of Section 42 of
NDPS Act. He also proved the
report u/s 57 of NDPS Act
received from IO.
8 Sh. Santosh Tripathy He was the FSL expert, who
SSO proved his report viz Ex.PW8/A
whereby it was opined that the
seized item contained Ganja.
9 HC Brijesh Kumar He took the sample to Fsl to
deposit the same for analysis.
10 Inspector Kuldeep He was the Incharge of Narcotic
Singh Cell, Crime Branch at Kotwali.
He got the secret information
through PW-13 SI Devender who
produced the informer before
him. This witness also shared the
information to the ACP and
directed the IO to conduct raid in
accordance with secret
information.
11 Inspector Shriniwasan He was SHO PS Crimes, at
Malviya Nagar. He received the
case property and put his counter
seal and mentioned the FIRon the
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parcels and the document and
then he deposited the same with
MHC(M) in compliance of
Section 55 of NDPS Act.
12 SI Sumit Kumar He was the second IO to whom
investigation was assigned after
registration of the FIR. After
completing investigation, he filed
the chargesheet.
13 SI Davinder He is the first IO of the case who
received secret information,
conducted investigation leading
to arrest of the accused, and
effected recoveries from them.
STATEMENT OF ACCUSED
18.Accused was examined u/s 313 Cr.PC. In their defence, they averred that they do not know anything about this case and have been falsely implicated in this case. Accused Sabir deposed that he is innocent.
He further deposed that he was not apprehended from the spot as he was with his wife namely Sonu at Chandni Chowk on that day. He also deposed that nothing was recovered from his possession and that he has been falsely implicated in the present matter. He also stated FIR No 42/2016 State Vs. Mohd Sabir & Anr Page No. 28/47 Digitally signed by ARUL ARUL Date:
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that the police officers forcibly took his signatures on various blank, semi-written and written documents in the police station.
19.Further, accused Dinesh deposed that he is innocent and he was not apprehended from the spot as he had gone to drop his wife at NFC where she works as a guard in a government school. He further deposed that nothing was recovered from his possession and that he has been falsely implicated in the present matter. He also deposed that the police officers forcibly took his signatures on various blank, semi-written and written documents in the police station. Further, accused persons lead evidence in their defence.
EVIDENCE LED BY ACCUSED IN THEIR DEFENCE
20. In their defence, both the accused persons examined their wives as their defence witnesses, the succinct testimonies whereof are as follows:
21.DW-1 Smt. Rihana Begam, w/o Mohd. Sabir, She deposed that she works as a guard in a girl's government school i.e Sarvodaya Kanya Vidyalaya situated at New Friends Colony, New Delhi and her duty hours were 07:00 AM to 02:00 PM. She further deposed that her husband used to drop her to the aforesaid school on daily basis and also used to pick her from the school on alternatives day. It was further deposed that on 02.04.2016, her husband had dropped her at about 07:15 AM and left for his office as at that time he was FIR No 42/2016 State Vs. Mohd Sabir & Anr Page No. 29/47 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.11.07 18:51:27 -0200 working as 'union leader' of MCD employees at NFC. It was further deposed that after leaving her at her school, she did not have any information about her husband and later on 03.04.2016, she came to know from the police that her husband had been arrested in some case. She further deposed that prior to this occasion, her husband was never arrested in any other case nor had any criminal antecedents.
22.DW-2 Smt Sonu Panchaal w/o Dinesh Kumar Panchaal She deposed that on 02.04.2016, she alongwith her husband had come to Chandni Chowk market for purchasing clothes for the purpose of marriage of the son of her sister-in-law. She further deposed that they remained in the Chandni Chowk market from 09:30 AM to 03:00/03:30 PM and at around 03:30 PM, when they were standing near a mandir in front of the complex of Lal Kila, there her husband was watching his mobile phone and she was taking care of bags containing clothes, then in the meantime one person in civil dress pulled her husband towards a car and when she had intervened and abused him as to why he was pulling her husband, then the said person told that he was a police office then the said police officer took her in a car with her husband. It was further deposed that the police took them to some police station and the police asked her to go to her house and told that they would leave her husband later on.
FIR No 42/2016 State Vs. Mohd Sabir & Anr Page No. 30/47 Digitally signed by ARUL ARUL VARMA VARMA Date: 2023.11.07 18:51:36 - 0200
She also deposed that thereafter she had gone to her house leaving behind her husband in the police station and later on, she came to know that her husband was implicated in this case. ARGUMENTS OF LD. ADDL. PUBLIC PROSECUTOR FOR THE STATE AND LD. DEFENCE COUNSEL
23. Sh. Wasi-Ur-Rahman, Ld. Public Prosecutor for the State submitted that all the relevant material prosecution witnesses have been examined and cumulatively they have proved the case of prosecution beyond reasonable doubt. It was also submitted by Ld. Addl PP for State that after the prosecution evidence, the statement of accused has been recorded u/s 313 Cr.PC. In his statement, the accused nowhere explained any circumstance proved against them and put to them during their examination. The accused also did not claim any prejudice for non compliance of any provision, if any,. It shows that there is no prejudice caused to the accused even in case the non compliance of some provision, although, the substantial compliance has been done of all the required provisions.
24.Lastly, Ld. Addl PP for State contended that there is no reason to discard the testimony of witnesses examined in this case. Furthermore, there is no defence taken by the accused, which can be considered at par with the prosecution evidence, rather, in light of Section 35 and 54 of NDPS Act, apart from the evidence led by FIR No 42/2016 State Vs. Mohd Sabir & Anr Page No. 31/47 ARUL Digitally signed by ARUL VARMA VARMA 18:51:48 -0200 Date: 2023.11.07 prosecution, there is presumption of having the contraband substance in the possession of accused person unless and until the same is proved contrary to the satisfaction of this Court. It was thus submitted that the all the prosecution witnesses have deposed in similar vein and there is no such discrepancy in the testimony of any of the prosecution witness which could shake the substratum of the case. Although there are some minor discrepancies/omission which are bound to occur in the testimony of natural witnesses that too recorded after a considerable time.
25.Ld. Addl PP for State submitted that as regards the contention of Ld. LAC for accused that the no public witnesses were joined or no efforts were made to join the public witnesses. This contention is factually not correct because as per the testimony of IOs they had made efforts and asked several passersby to join investigation but none of them had agreed due to their own reasons and further due to the paucity of time no written notice could be served upon them. It was further submitted that in such cases, independence evidence is required but accused cannot be acquitted merely because non production of independence witness. Ld. Addl PP for State placed reliance on Ajmer Singh v State of Haryana (2010) 3 SCC 746.
26.Ld. Addl PP for State lastly submitted that the required compliance of Sections 42, 50, 55, 52A and 57 NDPS Act have been complied FIR No 42/2016 State Vs. Mohd Sabir & Anr Page No. 32/47 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.11.07 18:51:56 -0200 with properly in this case. Therefore, accused persons are liable to be held guilty for the offence they are charged with as case has been proved beyond reasonable doubt.
27. Per contra, Sh. Manish Kumar Sharma, Ld. Legal Aid Counsel for accused submitted despite raid taking place at a public place and despite the factum of seizure and recovery took place in afternoon, no independent witness was joined by police. This according to Ld. Counsel, doubts on the procedure adopted by police in implicating the accused in present case.
28.It was vehemently contended by Ld. LAC for accused that there was non compliance of Section 50 of NDPS Act inasmuch as for the Mandate of Aarif Khan @ Agha Khan Vs State of Uttarakhand (2018) 18 SCC 380 it was incumbent and mandatory upon the police officers to produce the accused persons before a Gazetted Officer of a Magistrate for the purposes of search and recovery of contraband items from them irrespective of the fact that the accused persons had refused to avail rights to do so.
29. Ld. LAC for accused further submitted that there has been total non compliance of Section 52 A of NDPS Act. It was submitted that at the time arrest of accused on 02.04.2016, two samples each were taken from all the bags carried out by accused persons. It was submitted that only highly belatedly after a period of 3 months, an FIR No 42/2016 State Vs. Mohd Sabir & Anr Page No. 33/47 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.11.07 18:52:03 -0200 application was moved on 05.07.2016, before Ld. Magistrate and the samples S1 and S2 were drawn before the Ld. Magistrate only on 14.07.2016. However, it was submitted by Ld. LAC for accused that Ld. Magistrate, on 19.07.2016, refused to certified the correctness of the inventory of seized Narcotic Drugs, thus according to Ld. Counsel, the non certification of inventory by Ld. Magistrate tantamounts to non compliance of Section 52 of NDPS Act. Ld. LAC thus submitted that since the inventory was not certified by Ld. Magistrate, the samples could not be said to be a primary evidence in terms of Section 52 A (4) of NDPS Act as well as as per the mandate of Yusuf @ Asif Vs State SLP (Crl) No 3010 of 2023.
30.It was submitted that the samples A1, A2 and B1, B2 were sent to FSL on 05.04.2016 ie way before the samples were drawn before Ld. Magistrate u/s 52A of NDPS Act.
31.Ld. LAC for accused further invited the Court's attention to testimony of MHC(M) PW-6 who averred that he had handed over only pullandas Mark A1, B1 alongwith FSL form form to Ct Brijesh Kumar to be deposited in the FSL. It was submitted that a perusal of FSL Ex. PW8/A would reveal that only Parcel A1 and B1 were deposited before the FSL for the purposes of chemical examination. It was thus submitted that no other witness has spoken of deposit of samples S1, S2 and T1 and T2, which were drawn before Ld. FIR No 42/2016 State Vs. Mohd Sabir & Anr Page No. 34/47 Digitally signed by ARUL ARUL VARMA VARMA Date:
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Magistrate u/s 52 A of NDPS Act were not deposited in the FSL and nor is there any FSL report in this regard.
32.Qua the factum of certification of inventory, Ld. LAC invited the Court's attention to incorrect statement made by PW-12 Sumit Kumar wherein he had submitted that he had prepared the inventory of case property Ex. PW12/D which bore his signature at point X and which was put up before Ld. Magistrate who verified and found to be correct. It was submitted that a perusal of order dated 19.07.2016 passed by Ld. Magistrate belies this assertion of PW-12 Inspector Sumit Kumar. Ld. LAC thus submitted that accused persons ought to be exonerated.
STATEMENT OF REASONS FOR THE DECISION NON JOINING OF PUBLIC WITNESSES
33. It was firstly contended by Ld. LAC that no public witnesses were joined nor notice to any public witness was given to join the proceedings. However, this contention pales into insignificance as the raiding team members had deposed that they had requested public persons to join the raiding team but they all had refused to do so. Significantly, in this context, it would be useful to peruse the following extracts of Ajmer Singh (supra):
"19 The learned Counsel for the appellant has submitted that the evidence of the official witnesses cannot be relied upon as their testimony, has not been corroborated by any independent witness. We are FIR No 42/2016 State Vs. Mohd Sabir & Anr Page No. 35/47 Digitally signed by ARUL ARUL Date:
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unable to agree with the said submission of the learned counsel. It is clear from the testimony of the prosecution witnesses PW 3, Paramjit Singh Ahalwat, DSP, Pehowa; PW 4, Raja Ram, Head Constable and PW 5, Maya Ram, which is on record, that efforts were made by the investigating party to include independent witness at the time of recovery, but none was willing. It is true that a charge under the Act is serious and carries onerous consequences. The minimum sentence prescribed under the Act is imprisonment of 10 years and a fine. In this situation, it is normally expected that there should be independent evidence to support the case of the prosecution. However, it is not an inviolable rule. Therefore, in the peculiar circumstances of this case, we are satisfied that it would be travesty of justice, if the appellant is acquitted merely because no independent witness has been produced. 20 We cannot forget that it may not be possible to find independent witness at all places, at all times. The obligation to take public witnesses is not absolute. If after making efforts which the court considered in the circumstances of the case reasonable, the police officer is not able to get public witnesses to associate with the raid or arrest of the culprit, the arrest and the recovery made would not be necessarily vitiated. The court will have to appreciate the relevant evidence and will have to determine whether the evidence of the police officer was believable after taking due care and caution in evaluating their evidence."
34.Thus, the testimony of police witnesses cannot be disregarded merely on account of non joining of public witnesses. COMPLIANCE OF SECTION 50 NDPS ACT
35.To adjudicate this issue, it would be profitable to refer to Section 50 of the Act, which reads as thus:
"Section 50: Conditions under which search of persons shall be conducted:
(1)When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate FIR No 42/2016 State Vs. Mohd Sabir & Anr Page No. 36/47 Digitally signed by ARUL ARUL Date:
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(2)If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1)"
36.The safeguards mentioned in Section 50 are intended to serve a dual purpose- to protect a person against false accusation and frivolous charges as also to lend credibility to the search and seizure conducted by an empowered officer.
37.In the present, it was contended by Ld. LAC for accused persons that the accused were not produced before a Gazetted Officer or a Magistrate, as mandated by the verdict of Arif Khan (supra). However, this contention of Ld. LAC cannot be countenanced in view of Nabi Alam @ Abbas Vs State of Govt of NCT of Delhi Bail Appln 2641 of 2018 whereby the Hon'ble High Court of Delhi laid down as thus:
"20. On a plain reading of the above decision, it is clear that the obligation of the empowered officer under sub-Section (1) of Section 50 of the NDPS Act makes it imperative on his part to apprise the Signature Not Verified Digitally signed Signing Date:07.06.2021 15:26:10 person intended to be searched, of his right to be searched before a Gazetted Officer or Magistrate; failure to comply with which prescription, which requires strict compliance, would render the recovery of the 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 accused during such search or suspected of being in possession of any narcotic drug or psychotropic substance during the said search. However, for the purposes of the issue to be determined in the instant case, it is relevant and pertinent to note that the Constitution Bench of the Hon'ble Supreme Court of India in Vijaysinh Chandubha Jadeja (supra) clearly observed that "Thereafter, the suspect may or may not choose to exercise the right provided to him under the FIR No 42/2016 State Vs. Mohd Sabir & Anr Page No. 37/47 Digitally signed by ARUL ARUL VARMA Date:
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said proviso". The sequitur to this observation of the Supreme Court leaves no manner of doubt that once the suspect has been apprised by the empowered officer of his right to be searched before a Gazetted Officer or a Magistrate, but chooses not to exercise that right, the empowered officer can conduct the search of such person without producing him before a Gazetted Officer or a Magistrate, for the said purpose.
23. A plain reading of the above extracted paragraphs leads to but one inescapable conclusion that their Lordships of the Hon'ble Supreme Court whilst following the ratio of the decision of the Constitution Bench in Vijaysinh Chandubha Jadeja (supra) held that the same has settled the position of law in this behalf to the effect that, whilst it is imperative on the part of the empowered officer to apprise the person of his right to be searched only before a Gazetted Officer or Magistrate; and this requires a strict compliance; the Hon'ble Court simultaneously proceeded to reiterate that, in Vijaysinh Chandubha Jadeja (supra) "it is ruled that the suspect person may or may not choose to exercise the right provided to him under Section 50 of the NDPS Act". In this view of the matter, the reliance placed by counsel for the applicant/accused on the decision of the Supreme Court in Arif Khan @ Agha Khan (supra), in our respectful view does not come to his aid."
38. Thus, as is apparent there was no requirement of taking the accused persons before a Gazetted Officer or a Magistrate for conducting their search in terms of Section 50 of NDPS Act especially when the accused exercised their option of not being searched before such Gazetted Officer or Magistrate. What is significant to note is that the notice u/s 50 NDPS Act was duly served by PW-13 1 st IO/SI Davinder upon the accused persons. It was brought to the fore that notice u/s 50 NDPS Act was served to accused Dinesh vide Ex. PW1/A and notice to accused Mohd Sabir was served vide Ex. FIR No 42/2016 State Vs. Mohd Sabir & Anr Page No. 38/47
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PW1/B both bearing signatures of IO at point-X. It was also averred that the accused Dinesh refused to avail his legal right and his written reply was proved as Ex. PW1/C bearing his signatures at point-X. The IO further averred that since accused Mohd Sabir expressed his inability to avail his legal right, therefore his reply was written down by the IO, and the same was proved as Ex. PW1/D bearing signatures of Mohd Sabir at point X and the signature of IO at point Y. It is pertinent to note that the other recovery witnesses namely PW-1 SI Virender Kumar and PW-2 HC Sushil Kumar also corroborated this version of the IO in their testimonies. Further, a perusal of record would also reveal that the original notices u/s 50 of NDPS Act were recovered from personal search memo of the accused persons. Thus, there has been total compliance of Section 50 of NDPS Act.
NON COMPLIANCE OF SECTION 52 A NDPS ACT
39. Ld. LAC for accused persons vehemently contended that there was non compliance of Section 52 A of NDPS Act on the part of police officials concerned in the present case. It was submitted that at the time arrest of accused on 02.04.2016, two samples each were taken from all the bags carried out by accused persons. It was submitted that it was only highly belatedly after a period of 3 months, that an application was moved u/s 52 A of NDPS Act on 05.07.2016, before FIR No 42/2016 State Vs. Mohd Sabir & Anr Page No. 39/47 Digitally signed by ARUL ARUL VARMA VARMA Date:
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Ld. Magistrate and the samples S1 and S2 were drawn before the Ld. Magistrate only on 14.07.2016. However, it was submitted by Ld. LAC for accused that Ld. Magistrate, on 19.07.2016, refused to certified the correctness of the inventory of seized Narcotic Drugs, thus according to Ld. Counsel, the non certification of inventory by Ld. Magistrate tantamounts to non compliance of Section 52 A of NDPS Act. Ld. LAC thus submitted that since the inventory was not certified by Ld. Magistrate, the samples could not be said to be a primary evidence in terms of Section 52 A (4) of NDPS Act as well as as per the mandate of Yusuf @ Asif (supra). To substantiate his contention Ld. Counsel for accused had invited the Court's attention to the testimonies of PW-13 Inspector Davinder.
40.At this juncture, it would be apt to peruse the following testimony of PW- 13 Inspector Davinder who deposed as thus:
"I got parked the vehicles along side of the road. At about 01:50 PM, two persons were seen coming from Sarai Kale Khan and were holding plastic kattas on their shoulders. The secret informer pointed out the said two boys as Mohd. Sabir and Dinesh about he gave the information to me. Then, the secret informer left the spot. Thereafter, I alongwith the help of party members apprehended the said two boys with plastic kattas. On inquiry, their names were revealed as Mohd. Sabir and Dinesh, who are now accused present in the court today (correctly identified by the witness). I apprised both the accused persons that I had information that they were going to supply 'ganja' and they were carrying contraband i.e. 'ganja'.
I apprised the accused persons about their legal rights that their search was to be conducted and the said search could be conducted in the presence of Gazetted Officer or Magistrate by calling them at the spot, if they so desire. I FIR No 42/2016 State Vs. Mohd Sabir & Anr Page No. 40/47 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.11.07 18:52:59 -0200
gave written notices in this regard u/s 50 NDPS Act to both the accused separately. The carbon copy of the said notice in the name of Dinesh Ex. PW1/A and in the name of Sabir Ex. PW1/B. Both bear my signature at point X. Accused Dinesh had refused to avail his legal right and he gave his written reply below the carbon copy of the above notice. The reply of accused Dinesh is Ex. PW1/C and it bears his signature at point X. Accused Sabir had also refused to avail his legal right. Since he had shown his inability to write down his reply, so I had written his reply on his behalf. The reply of accused Sabir is Ex. PW1/D and it bears his signature at point X and my signature at point Y. I also offered the search of raiding party members and our vehicle to both the accused persons, but they refused to take our search. During the said proceedings, I again asked 4-5 passersby to join the raiding party, but none could prepared and went away after disclosing their reasonable excuses. Due to the paucity of time, I could not serve written notice upon those persons, who refused to join the raiding team.
First, I took over the katta from accused Dinesh. The mouth of the said plastic katta was tied with a cloth cord. I opened the mouth of katta and it was found containing 'ganja' which I had identified by its smell and appearance. I weighed the said 'ganja' with katta at one go and it was found 49.500 kg. I drew two samples of 'ganja' of 250 grams each from the said katta. I kept both the samples in two separate transparent polythene and then converted them into cloth parcels. Both the samples were given Mark A-1 and A-2. The remaining 'ganja' left in the said katta and it was tied with the above cloth cord. Mark A was given to the katta. All three parcels were sealed with the seal of 'DK'. I filled in the FSL form and affixed the same seal on it. I handed over the seal to HC Virender after use. I then seized the said parcels and the FSL form through the seizure memo Ex. PW1/E, which bears my signature at point X and the signature of accused at point Y. Thereafter, I took over the katta from accused Sabir. The mouth of the said plastic katta was tied with a cloth cord. I opened the mouth of katta and it was found containing 'ganja' which I had identified by its smell and appearance. I weighed the said 'ganja' with katta at one go and it was found 47.500 kg. I drew two samples of 'ganja' of 250 grams each from the said katta. I kept both the samples in two separate transparent polythene and then converted them into cloth parcels. Both the samples were given Mark B-1 and B-2. The remaining 'ganja' left in the said katta and it was tied with the above cloth cord. Mark B was given to the katta. I took over my seal from HC Virender and then sealed all the three parcels with the said FIR No 42/2016 State Vs. Mohd Sabir & Anr Page No. 41/47 Digitally signed by ARUL ARUL VARMA VARMA Date:
2023.11.07 18:53:07 -0200 seal of 'DK'. I filled in the FSL form and affixed the same seal on it. I then handed over the seal to HC Virender after use. I then seized the said parcels and the FSL form through the seizure memo Ex. PW1/F, which bears my signature at point X and the signature of accused at point Y. Thereafter, I prepared a rukka which is now Ex. PW13/A, bearing my signature at point X. I handed over the rukka to HC Sushil alongwith six sealed parcels, FSL forms and carbon copies of seizure memos. I directed HC Sushil to hand over the rukka to duty officer and the remaining items were to be given to the SHO, PS Crime Branch. Accordingly, HC Sushil took the said items by a car which was being driven by Ct. Pradeep. I sent the said rukka at about 06:00 PM.
Thereafter, I brought both the accused persons to my office at Kotwali Dariyaganj.
41.The above testimony of the 1st IO SI Davinder makes it explicit that the samples were drawn on the spot. Thus, it is apparent that the samples were drawn immediately at the spot after the seizure of contraband item from the accused and they were not drawn before the Ld. Magistrate up until a delay of almost 3 months. Two samples were drawn from each of the bags carried by the accused persons. The samples were mark A1 A2 and B1 and B2. These samples were drawn on the spot on 02.04.2016. It was only after a delay of 3 months on 05.07.2016 that an application on 05.07.2016 was moved u/s 52 A of NDPS Act before the Ld Magistrate for certification of correctness of inventory, photographs, and drawing of samples of seized contraband items. It is pertinent to note that the samples drawn before the Ld. Magistrate were given numbers S2, S3, T2 and T3. There is no evidence on record that these samples, drawn FIR No 42/2016 State Vs. Mohd Sabir & Anr Page No. 42/47 Digitally signed by ARUL ARUL Date:
VARMA VARMA 2023.11.07 18:53:14 -0200
before the Ld. Magistrate were ever sent to the FSL. Even the 1st IO PW-13 Inspector Davinder averred in his examination in chief that he only handed over the samples Mark A1 A2, B1 and B2, drawn at the spot, to PW/HC Sushil to deposit the same in the Malkhana. The 2nd IO PW-12 Inspector Sumit Kumar also avowed that on 05.02.2016, HC Brijesh deposited the samples A1 and B1 in FSL Rohini, Delhi. Thus, the samples drawn before the Ld. Magistrate u/s 52 A of NDPS Act were never sent to the FSL.
42. It is further pertinent to note that above-mentioned application u/s 52 A NDPS Act was also moved before the Ld. Magistrate for certifying the correctness of entry of the seized contraband item. In this regard, PW-12 Inspector Sumit Kumar deposed in his examination in chief as thus:
"During investigation, the sampling of the recovered contraband was got conducted through Ld. Magistrate. I prepared the inventory of the case property which is Ex. PW12/D, which bears my signature at point X and put it before the Ld. Magistrate, who verified and found it correct. Ld. Magistrate conducted the proceeding of sampling u/s 52-A of NDPS Act and he took out the two samples from each katta i.e. total four samples from the recovered 'ganja'. The samples were taken from the katta Mark A, were given Mark S-2 and S-3 and the samples drew from the katta Mark B, were given numbers T-2 and T-3. The contraband remained in Mark A was kept and sealed in another katta given Mark S-1 and the remaining substance of katta Mark B was also kept in fresh katta Mark T-1. The Magistrate sealed all the parcels with the seal 'DS' vide true copy of proceeding is Ex. PW12/E. 27 photographs of the case property and samples taken at the time of proceedings, conducted by the Ld. Magistrate, are available on record and the same are now Ex. PW4/A FIR No 42/2016 State Vs. Mohd Sabir & Anr Page No. 43/47 ARUL Digitally signed by ARUL VARMA VARMA 18:53:20 -0200 Date: 2023.11.07 (colly). After completion of the investigation the charge sheet was filed. The accused persons are present in the court today (correctly identified by the witness)."
43. The above statement on oath by PW-12 Inspector Sumit Kumar is a wrong statement, and is contrary to the contents of order dated 19.07.2016 passed by Ld. Magistrate, while disposing of the abovementioned application u/s 52 A of NDPS Act, wherein the Ld. Magistrate observed as thus:
" IO has reiterated that recovered substance might have been having moisture and on account of evaporation of moisture from the said substance, the said discrepancy has occurred. It is pertinent to mention here that the said substance was seized on 02.04.2016 and since more than three months have passed. Therefore, the probability of the correctness in the submission made by the IO cannot be ruled out. However, at this stage, the undersigned is not in position to certify the correctness of the inventory of the seized narcotic drugs and so the inventory of seized narcotics drugs dated 05.07.2016 is not certified. The application of the IO is accordingly disposed of."
44. Thus, the inventory of the contraband items were never certified by the Ld. Magistrate in terms of Section 52 A of NDPS Act.
45.At this juncture, it would be germane to reproduce the relevant extracts of verdict of Hon'ble Supreme Court of India laid down in Yusuf @ Asif (supra), whereby the Hon'ble Apex Court has opined as thus:
"12. A simple reading of the aforesaid provisions, as also stated earlier, reveals that when any contraband/narcotic substance is seized and forwarded to the police or to the officer so mentioned under Section 53, the officer so referred to in sub7 section (1) shall prepare its inventory with details and the FIR No 42/2016 State Vs. Mohd Sabir & Anr Page No. 44/47 ARUL Digitally signed by ARUL VARMA VARMA 18:53:28 -0200 Date: 2023.11.07 description of the seized substance like quality, quantity, mode of packing, numbering and identifying marks and then make an application to any Magistrate for the purposes of certifying its correctness and for allowing to draw representative samples of such substances in the presence of the Magistrate and to certify the correctness of the list of samples so drawn.
13. Notwithstanding the defence set up from the side of the respondent in the instant case, no evidence has been brought on record to the effect that the procedure prescribed under subsections (2), (3) and (4) of Section 52A of the NDPS Act was followed while making the seizure and drawing sample such as preparing the inventory and getting it certified by the Magistrate. No evidence has also been brought on record that the samples were drawn in the presence of the Magistrate and the list of the samples so drawn were certified by the Magistrate. The mere fact that the samples were drawn in the presence of a gazetted officer is not sufficient compliance of the mandate of subsection (2) of Section 52A of the NDPS Act.
14. It is an admitted position on record that the samples from the seized substance were drawn by the police in the presence of the gazetted officer and not in the presence of the Magistrate. There is no material on record to prove that the Magistrate had certified the inventory of the substance seized or of the list of samples so drawn.
15. In Mohanlal's case, the apex court while dealing with Section 52A of the NDPS Act clearly laid down that it is manifest from the said provision that upon seizure of the contraband, it has to be forwarded either to the officer incharge of the nearest police station or to the officer empowered under Section 53 who is obliged to prepare an inventory of the seized contraband and then to make an application to the Magistrate for the purposes of getting its correctness certified. It has been further laid down that the samples drawn in the presence of the Magistrate and the list thereof on being certified alone would constitute primary evidence for the purposes of the trial.
16. In the absence of any material on record to establish that the samples of the seized contraband were drawn in the presence of the Magistrate and that the inventory of the seized contraband was duly certified by the Magistrate, it is apparent that the said seized contraband and the samples drawn therefrom would not be a valid piece of primary evidence in the trial. Once there is no primary evidence available, the trial as a whole stands vitiated."
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ARUL by ARUL VARMA VARMA 18:53:37 Date: 2023.11.07
-0200
46. The above verdict makes it abundantly explicit that in case the samples of the seized contraband are not drawn in the presence of a Magistrate, or the inventory of seized contraband was not duly certified by the Ld Magistrate, then the seized samples and contraband would not be a valid piece of evidence before the Court. In the present case too, the inventory of the seized contraband was not duly certified by the Ld Magistrate.
CONCLUSION
47.Ergo, in view of the reasons hereinabove discussed in extenso, this Court is of the considered view that the prosecution has not been able to prove beyond reasonable doubt that the accused Mohd Sabir and Dinesh Kumar Paanchal were found in possession of 49.05 Kg and 47.5 Kg of Ganja respectively on 02.04.2016, at about 01:50 PM on the pavement in front of Free Public Convenience at Sarai Kale Khan, Inter-Stae Bus Stop, Ring Road, and are therefore acquitted for the offence punishable under Section 20(b) (ii) (C) of NDPS Act.
48. It is significant to note that the above acquittal is an addition to the litany of cases where benefit has enured to accused for non compliance of Section 52 A of NDPS Act on the part of police officials concerned.
FIR No 42/2016 State Vs. Mohd Sabir & Anr Page No. 46/47
Digitally signed by ARUL ARUL VARMA VARMA Date:
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49.Accordingly, considering the fact that almost 98 Kgs of Ganja was involved in the present case, let copy of this judgment be sent to Special CP Crime Branch to take necessary action against 1st IO/Inspector Davinder, 2nd IO/Inspector Sumit Kumar, SHO/Inspector R. Sriniwasan and Supervisory Officer ACP Sh. Nand Kishore Meena under intimation to this Court by 20.12.2023 and also to ensure that such lapses do not occur in future.
50. Copy of this order be also sent to Worthy Commissioner of Police for necessary information and compliance.
Digitally signed by ARUL ARUL VARMA Announced in the open court VARMA Date:
2023.11.07 18:53:52 -0200 on 07.11.2023 (ARUL VARMA) ASJ-04 & Spl. Judge (NDPS) South-East District Saket Courts, New Delhi FIR No 42/2016 State Vs. Mohd Sabir & Anr Page No. 47/47